# Smt. Rekha v. State of U.P

- **Citation:** (2025) 4 ILRA 758
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-09
- **Case number:** Criminal Misc Bail Application No. 25993 of 2024
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rekha-v-state-of-u-p-53262
- **Pages:** 38

## Headnote

Criminal Law - Constitution of India,1950
- Article 1950 - Bail - Incarceration of
mother with minor child - Child's right to
education, development, and dignity - Art.
21-A of Constitution -Article 15 (3), 39€,
39(f), and 47 of the Constitution of India-
"Default confinement" of minor due to
rejection
of
mother's
bail
-
Legal
obligation of St. and Courts to protect
rights of jail-residing children - Juvenile
Justice (Care and Protection of Children)
Act 2015- Legal Services Authorities Act
1987-Right
of
Children
to
Free and
Compulsory Education Act 2009-UP Jail
Manual 2022-Model Prison Manual, 2016-
Comprehensive
directions
issued
for
welfare, schooling, and individual care
plans of children in jail - Court's power
under bail jurisdiction extends to enforce
constitutional mandates for child welfare
- Directive to ensure education of children
in jail outside prison premises - Rights of
children not to be sacrificed due to
parental custody - Children are entitled to
holistic
development,
not
custodial
upbringing-Bail
application
of
mother
dismissed-Trial expedited. (Paras 8, 9, 12,
13, 18, 24, 25, 26, 34, 40, 41, 44, 56,
63,71, 82, 87, 94, and 114)

HELD:

Fair administration of justice in bail jurisdiction
commands this Court to ensure that adverse
consequences accruing to the child as a result of
rejection of the bail application of their parent
(mother in this case) are mitigated and the
rights of minor children of inmates residing in
jails are protected. (Para 8)

Constitutional status of this Court is not
denuded in bail jurisdiction. While exercising bail
jurisdiction various legal issues may arise for
consideration in the facts and circumstances of
a case which directly impact fair administration
of justice. The Court is possessed of jurisdiction
to determine such issues as per law while
deciding bail applications. (Para 9)
4 All. Smt. Rekha Vs. State of U.P.
759
The applicant has been identified as the
principal offender who murdered her minor step
child and threw his body in a tank situated in
the house. The dead body was recovered at the
pointing out of the applicant. The applicant had
the motive to commit the offence. The offence
is grave. There is likelihood that the applicant
had committed the offence. At this stage, no
case for bail is made out. (Para 94)

Application allowed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,978 of 117,726. This is a partial read: ask again with offset=39978 for what follows._

758 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) The applicant shall not tamper
with evidence.

(ii) The applicant shall remain
present, in person, before the Trial Court
on dates fixed for (1) opening of the case,
(2) framing of charge and (3) recording of
statement under Section 313 Cr.P.C./351
B.N.S.S. If in the opinion of the Trial Court
absence of the applicant is deliberate or
without sufficient cause, then it shall be
open for the Trial Court to treat such
default as abuse of liberty of bail and
proceed against him in accordance with
law.

44. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail. Identity, status and
residence proof of the applicant and
sureties be verified by the court concerned
before the bonds are accepted.

45. It is made clear that observations
made in granting bail to the applicant shall
not in any way affect the learned trial Judge
in forming his independent opinion based
on the testimony of the witnesses.

----------
(2025) 4 ILRA 758
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.04.2025

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc Bail Application No. 25993 of 2024

Smt. Rekha ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Rahul Upadhyay

Counsel for the Respondents:
G.A., R.P.S. Chauhan

Criminal Law - Constitution of India,1950
- Article 1950 - Bail - Incarceration of
mother with minor child - Child's right to
education, development, and dignity - Art.
21-A of Constitution -Article 15 (3), 39€,
39(f), and 47 of the Constitution of India-
"Default confinement" of minor due to
rejection
of
mother's
bail
-
Legal
obligation of St. and Courts to protect
rights of jail-residing children - Juvenile
Justice (Care and Protection of Children)
Act 2015- Legal Services Authorities Act
1987-Right
of
Children
to
Free and
Compulsory Education Act 2009-UP Jail
Manual 2022-Model Prison Manual, 2016-
Comprehensive
directions
issued
for
welfare, schooling, and individual care
plans of children in jail - Court's power
under bail jurisdiction extends to enforce
constitutional mandates for child welfare
- Directive to ensure education of children
in jail outside prison premises - Rights of
children not to be sacrificed due to
parental custody - Children are entitled to
holistic
development,
not
custodial
upbringing-Bail
application
of
mother
dismissed-Trial expedited. (Paras 8, 9, 12,
13, 18, 24, 25, 26, 34, 40, 41, 44, 56,
63,71, 82, 87, 94, and 114)

HELD:

Fair administration of justice in bail jurisdiction
commands this Court to ensure that adverse
consequences accruing to the child as a result of
rejection of the bail application of their parent
(mother in this case) are mitigated and the
rights of minor children of inmates residing in
jails are protected. (Para 8)

Constitutional status of this Court is not
denuded in bail jurisdiction. While exercising bail
jurisdiction various legal issues may arise for
consideration in the facts and circumstances of
a case which directly impact fair administration
of justice. The Court is possessed of jurisdiction
to determine such issues as per law while
deciding bail applications. (Para 9)
4 All. Smt. Rekha Vs. State of U.P.
759
The applicant has been identified as the
principal offender who murdered her minor step
child and threw his body in a tank situated in
the house. The dead body was recovered at the
pointing out of the applicant. The applicant had
the motive to commit the offence. The offence
is grave. There is likelihood that the applicant
had committed the offence. At this stage, no
case for bail is made out. (Para 94)

Application allowed. (E-14)

List of Cases cited:

1. Ramu Vs St. of U.P., 2024 SCC OnLine All
4618

2. Anil Gaur @ Sonu @ Sonu Tomar Vs St. of
U.P., 2022 SCC OnLine All 623

3. Junaid Vs St. of U.P., 2021 (6) ADJ 511

4. Aman Vs St. of U.P., 2023 (8) ADJ 523

5. Bhanwar Singh @ Karamvir Vs St. of U.P.,
2023 SCC OnLine All 734

6. Noor Alam Vs St. of U.P., 2024 (5) ADJ 766

7. Anurudh Vs St. of UP, 2024 (8) ADJ 469

8. Avinash Mehrotra Vs U.O.I. & ors., 2009 (6)
SCC 398

9. Pratap Singh Vs St. of Jharkhand, 2005 (3)
SCC 551

10. Rajiv Kumar Vs St. of U.P., 2019 (4) ADJ
316

11. M.C. Mehta Vs St. of T.N., 1996 (6) SCC
756

12. In Re: Right to Privacy of Adolescents,
2024 SCC OnLine SC 2055

13. Sheela Barse Vs Children's Aid Society,
1987 (3) SCC 50

14. Lakshmi Kant Pandey Vs U.O.I., 1984 (2)
SCC 244

15. R. D. Upadhyay Vs St. of A.P., 2007 (15)
SCC 337
16. Jan Adalat, Centre of ParaLegal Services
and Legal Aid A Society Vs St. of Maharashtra,
Through
Secretary,
Home
Development
Department, 2017 SCC OnLine Bom 239

17. Babul Khan Vs St. of Karn., 2020 SCC
OnLine Kar 3438

18. Sumpurnanand Vs St. of U.P. reported at
2018 (11) ADJ 550

19. Oil and Natural Gas Commission & anr. Vs
Collector of Central Excise, 1995 Supp (4)
SCC 541

20. Oil & Natural Gas Commission Vs Collector
of Central Excise, 2004 (6) SCC 437

21. Elizabeth Jacob Vs District Collector,
Idukki & ors., 2008 (15) SCC 166

22. Society for enlightenment and voluntary
Action & anr. Vs U.O.I., 2024 SCC OnLine SC
2922

23. Junaid Vs St. of UP, 2021 (6) ADJ 511

24. The New India Assurance Company
Limited Vs Sri Yamin & ors., 2023 (10) ADJ
421

25. Junaid Vs St. of U.P. & anr., 2021 SCC
OnLine All 463

26. Rajendra Prasad Vs St. of U.P., Criminal
Misc. Bail Application No. 30292 of 2024

27. Jitendra Vs St. of U.P., Criminal Misc. Bail
Application No. 9126 of 2023

(Delivered by Hon'ble Ajay Bhanot, J.)

Ref: Criminal Misc. Correction
Application No. 2 of 2025

Heard.

Correction application is allowed.
760 INDIAN LAW REPORTS ALLAHABAD SERIES
Necessary correction has been
incorporated in the order dated 20.01.2025.
The correct order shall read as under:

The judgement is being structured
in the following conceptual framework to
facilitate the discussion:

I
Introduction
II
Submissions of learned counsels for the
parties
III
Legal issues arising in this case & Bail
Jurisdiction
IV
Children:
A
General
B
Constitution
and
Children
C
Education
and
Holistic
Development
of
Children
D
International
Instruments
V
Children in Jail : Invisible trial and caged
childhood - A Study
VI
Statutory Framework:
A
Juvenile
Justice
(Care & Protection
of Children) Act,
20151
B
The
Right
of
Children to Free and
Compulsory
Education
Act,
20092
C
UP
Jail
Manual,
2022
D
The Model Prison
Manual, 2016
E
Legal
Services
Authorities
Act,
1987
F
Constitutional
law
discourse
:
Case
Laws
VII
A
Child
Protection
System: Duties of
stakeholders
&
Directions
B
Training
of
stakeholders
C
Response
of
the
State
Government
and
achieving
concert
between
different
departments
VIII
Implementation of Law and Role of
Courts : Junaid Vs. State of U.P.3 and
Rajendra Prasad Vs. State of U.P.4
IX
Order in Bail Application
A
Merits of bail and
directions
to
expedite trial
B
Directions
to
create
a
child
care
plan
and
realize the rights
of the applicant's
minor child
X
Circulation of copies for compliance

I. Introduction

1. Rights of children who get
confined
to
jail
with
their
parents
consequent to rejection of bail of the latter
arise for consideration in this case (apart
from other grounds for bail).

II.
Submissions
of
learned
counsels for the parties

2. Shri Rahul Upadhyay, learned
counsel for the applicant made the
following submissions:

 i. The applicant's daughter who
is 5 years of age is residing with her in
prison after her incarceration. The rights of
the applicant's child flowing from Article
21-A of the Constitution of India read with
other beneficial legislations are being
violated on account of her confinement in
prison.
ii. The prison does not have
requisite support systems to ensure the
holistic growth of the minor child as
contemplated in the aforesaid provisions of
law.
iii. In view of the above the jail
stay will cast a shadow on the child's life
and mar her future.
4 All. Smt. Rekha Vs. State of U.P.
761
iv. The applicant is entitled to bail
on this ground alone.

Submissions on behalf of State

3. Shri Ashok Mehta, learned
Additional Advocate General assisted by
Shri Paritosh Kumar Malviya, learned
AGA-I made the following submissions:

I.
The
State
Government
have
an
unconditional commitment to provide a
congenial environment and build adequate
support systems as contemplated under the
Constitution and in various beneficial
legislations for children who reside in jail
consequent to imprisonment of their5
parent.
II. The State Government shall make all
endeavours to realize the fundamental
rights of the said class of children as
enunciated in holdings of constitutional
courts and the rights vested by applicable
statutory enactments.
III. The State are conscious of the fact that
all children including those who are
residing in jail with their parents need to be
nurtured into dutiful citizens of the country.
IV. Referencing the affidavit filed on behalf
of the State it is contended that the State
Government
will
create
the
proper
infrastructure, activate statutory support
systems and provide all facilities to
children as directed earlier by this Court by
order
dated
01.10.2024.
The
State
Government are taking steps to comply
with the said directions; and are not an
adversarial party to this litigation. Though
it
was
fairly
submitted
that
full
coordination and cooperation between
different departments is taking time.
III. Legal Issues arising in this case &
Bail Jurisdiction
4. The 5 year old daughter of the
applicant is entirely dependant on her.
Denial of bail to the applicant in the instant
case will cause the five year old child to
perforce reside in the jail premises with her.
Family circumstances and social roots are
among the criteria which are factored in
while deciding the bail application of an
accused.
5. The collateral damage inflicted
upon a child as a result of denial of bail to
their6 parent becomes most significant
when the child has to reside in prison with
the accused parent. The Court cannot shut
its eyes to the plight of such children
consequent to their confinement in jail by
default.
762 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Every parent has a duty to
ensure the well-being, education and well
rounded
development
of
their
child.
However, parents cannot fulfil these
obligations if they are imprisoned. Each
child has a fundamental right to education,
and an environment conducive to their7
development as a dutiful citizen of the
country. Neglect of rights of children who
suffer from such default confinement in jail
will reflect the failure of the State and
inadequacy
of
the
judicial
process.
Deprivation of rights of these children will
put a question mark on the ability of the
State and the capacity of the judicial
process to uphold the constitution and the
laws. Avoiding such germane issues which
squarely arise for consideration in bail
jurisdiction will amount to abdication of
judicial functions. Such course has been
abjured
by
good
and
consistent
authorities in point.

7. Fair administration of justice
in bail jurisdiction commands this Court
to ensure that adverse consequences
accruing to the child as a result of
rejection of the bail application of their
parent (mother in this case) are mitigated
and the rights of minor children of
inmates residing in jails are protected.

8. Constitutional status of this
Court is not denuded in bail jurisdiction.
While exercising bail jurisdiction various
legal issues may arise for consideration in
the facts and circumstances of a case
which directly impact fair administration
of justice. The Court is possessed of
jurisdiction to determine such issues as
per law while deciding bail applications.

9. Determining such issues in
accordance with law for dispensing fair
justice in bail jurisdiction is enjoined by
various
authorities
of
this
Court.
[Ref:Ramu Vs. State of U.P.8, Anil
Gaur @ Sonu @ Sonu Tomar v. State
of U.P.9, Junaid Vs State of U.P.10,
Aman Vs. State of U.P.11, Bhanwar
Singh @ Karamvir Vs. State of U.P.12,
Noor Alam Vs. State of U.P.13 and
Anurudh vs State Of UP14 ]

Rights
of
Children
:
Constitutional provisions & Statutory
and Legal Frameworks

IV(A). General

10. Children hold Nature's
promise of unquenchable optimism in a
world riven by constant strife. Children
are the most precious asset of humankind
but also the most vulnerable segment of
human species. The children have always
been regarded a separate class in law.

IV
(B).
Constitution
and
Children

11. The constitution makers
acknowledged that children are the most
precious assets of the nation, and
understood the special needs of children.
A distinct space for children was created
in the Constitution. Various provisions
devoted to children in the Constitution
attest the paramount place accorded to the
welfare of children in our Constitutional
scheme.

12. The relevant provisions of the
Constitution of the India in this regard
are extracted hereunder:

I. Article 15 (3) of the Constitution
of India enables the State Government to
make special provisions for children:
4 All. Smt. Rekha Vs. State of U.P.
763
"15(3) Nothing in this article shall
prevent the State from making any special
provision for women and children."
II. Free and compulsory education
for children is mentioned as a directive
principle for formation of State Policy.
Article 45 of the Constitution of India
states thus:

"45.
Provision
for
free
and
compulsory education for children: The
State shall endeavour to provide, within a
period
of
ten
years
from
the
commencement of this Constitution, for
free and compulsory education for all
children until they complete the age of
fourteen years."
III. Article 21-A of the Constitution
of India elevates the rights of education of
children between 6-14 of age to a
fundamental right.
"21(A) The State shall provide free and
compulsory education to all children of the
age of six to fourteen years in such manner
as the State may, by law, determine.

IV. Article 47 of the Constitution of
India reads:

47. Duty of the State to raise the
level of nutrition and the standard of living
and to improve public health: The State
shall regard the raising of the level of
nutrition and the standard of living of its
people and the improvement of public
health as among its primary duties and, in
particular, the State shall endeavour to
bring about prohibition of the consumption
except
for
medicinal
purposes
of
intoxicating drinks and of drugs which are
injurious to health."

V. Article 39(e) and Article 39(f) of
the Constitution of India contemplate a role
of the State to protect children against the
scourge of exploitation and to create
opportunities and facilities for children to
develop into worthy citizens.

"39(e) that the health and strength
of workers, men and women, and the tender
age of children are not abused and that
citizens are not forced by economic
necessity to enter avocations unsuited to
their age or strength;
39 (f) that children are given
opportunities and facilities to develop in a
healthy manner and in conditions of
freedom and dignity and that childhood and
youth are protected against exploitation and
against moral and material abandonment."

IV(C). Children : Education and
Holistic Development
"If a nation expects to be ignorant
and free, in a state of civilization, it expects
what never was and never will be"
~Thomas Jefferson
13. Education is the bulwark of a
nation's freedom and the engine of
economic prosperity. Education has assured
the preservation of the human species, and
guarantees the advancement of human
civilization.

14. Education is not only book
learning imparted in a classroom to secure
employment. The concept of education is
wide enough to embrace various aspects of
human existence and touches every facet of
human life. The ability of the homo sapiens
to understand and evolve themselves by
knowing their place and relation to the
universe around them is also comprised in
education.

15. Education contemplates a
holistic environment which is congenial to
the growth of human faculties along the
lines of excellence. Inculcation of healthy
764 INDIAN LAW REPORTS ALLAHABAD SERIES
lifestyle habits, development of robust
ethical values and character, and imbibing
of vocational and academic knowledge
form part of a vision of education of any
nation ruled by law.

16. Education is the primary
instrument to achieve our constitutional
vision. Sarvepalli Radhakrishnan's view
that "The aim of government is not so
much efficiency as education is true for all
times" is a guiding factor in the nation's
governance.
Right
of education
was
incorporated as a fundamental right under
Article 21A of the Constitution of India to
realize our constitutional goals succinctly
depicted in the Preamble. The legislature
also created comprehensive frameworks
and detailed mechanisms for realizing the
fundamental right to education by enacting
the Right to Education Act, 2009.

17. Children of jail inmates who
reside with the latter in prisons live in
conditions of confinement. The prison does
not provide an environment for holistic
development and impedes the growth of a
well rounded personality. The children are
cut off from the real world and are unable
to mix freely with their age group. They are
also susceptible to negative influences in
jail. Jail environment is not congenial for
the education of this class of children.
Infact the right to education guaranteed to
children
by
Article
21A
of
the
Constitution of India, and vested in them
by Right to Education Act, 2009 can be
effectively
negated
by
the
limiting
conditions of jails.

18. The sacred place of education
in constitutional scheme and the pressing
necessity of providing the same to the
children of prisoners was elaborated thus
by the Supreme Court in Avinash
Mehrotra Vs. Union of India and
others15:

"28. Education occupies a sacred
place
within
our
Constitution
and
culture...
30. In
the
years
since
the
inclusion of Article 21-A, we have
clarified that the right to education
attaches
to
the
individual
as
an
inalienable human right. We have traced
the broad scope of this right in R.D.
Upadhyay v. State of A.P. [(2007) 15
SCC 337 : AIR 2006 SC 1946] holding
that the State must provide education to
all children in all places, even in prisons,
to the children of prisoners. We have also
affirmed the inviolability of the right to
education.
(emphasis supplied)
32. Education remains essential to
the life of the individual, as much as
health and dignity, and the State must
provide
it,
comprehensively
and
completely, in order to satisfy its highest
duty to citizens.
33. Unlike
other
fundamental
rights, the right to education places a
burden not only on the State, but also on
the parent or guardian of every child, and
on the child herself. Article 21-A, which
reads as follows, places one obligation
primarily on the State:
"21-A. Right to education.-The
State shall provide free and compulsory
education to all children of the age of six
to fourteen years in such manner as the
State may, by law, determine."
(emphasis supplied)

IV(D).
International
Instruments

19. The consensus of comity of
nations to improve the lives of children is
4 All. Smt. Rekha Vs. State of U.P.
765
depicted in international instruments of
law relating to the rights of the children.

20.
While
acknowledging
the
applicability of international law to the
Juvenile Justice legislation, the Supreme
Court in Pratap Singh Vs. State of
Jharkhand16 held as under:

 "63. The legislation relating to
juvenile justice should be construed as a
step for resolution of the problem of
juvenile justice which was one of tragic
human interest which cuts across national
boundaries. The said Act has not only to be
read in terms of the Rules but also the
Universal Declaration of Human Rights
and the United Nations Standard Minimum
Rules for the Protection of Juveniles."

21. This Court in Rajiv Kumar
Vs. State of U.P.17 had noted the
development of international law and the
convergence of international legal values in
various international instruments:

 "38. The condition of children in
conflict with law engaged the concerns of
the world community. The concerns were
put
in
the
consciousness
of
the
international community by the adoption
of the Beijing Rules in 1985 and the UN
Standard
Minimum
Rules
for
Administration of Juvenile Justice.
 39.
The
United
Nations
Standard Minimum Rules For The
Administration of Juvenile Justice is a
document which reflects the consensus
of international opinion and convergence
of values amongst civilized nations.
Infact, the United Nations Standard
Minimum Rules For The Administration
of Juvenile Justice is a statement of
universal values. The Juvenile Justice
Acts in India trace their origin to the
aforesaid international standards and
other UN Conventions on the subject. As
will be seen the courts have readily
incorporated the international treaties
and conventions into the corpus of our
case law jurisprudence."

22. Reference can also be
profitably be made to the judgment
rendered by Supreme Court in M.C.
Mehta Vs. State of T.N.18 :

 "17. It would be apposite to
apprise
ourselves
also
about
our
commitment to world community. For
the case at hand it would be enough to
note
that
India
has
accepted
the
Convention on the Rights of the Child,
which was concluded by the UN General
Assembly
on
20-11-1989.
This
Convention affirms that children's rights
require special protection and it aims,
not only to provide such protection, but
also
to
ensure
the
continuous
improvement in the situation of children
all over the world, as well as their
development and education in conditions
of
peace
and
security.
Thus,
the
Convention not only protects the child's
civil and political right, but also extends
protection to child's economic, social,
cultural and humanitarian rights."

V. Children in Jail : Invisible
Trial and caged childhood- A Study

23. Various expert bodies have
investigated the condition of children of
inmates residing in jails. A leading study
in this regard was conducted by Tata
Institute of Social Sciences, Mumbai19.
The relevant part of the said study
revealing how jail environment wreaks
havoc in the psyche of children, and blights
their lives is extracted hereinunder:
766 INDIAN LAW REPORTS ALLAHABAD SERIES
 Caged
childhood:
Children
inside the prison with mothers
Just living is not enough... one must
have sunshine, freedom, and a little flower.
Hans Christian Andersen
Contact with the adult criminal
justice system can be detrimental to
children and families. Living in custody
amongst women accused or convicted for
committing various crimes can never be
normal for any child of the tender age of
six years or below. The prison environment
is just not conducive for the holistic
development of children. Many children
who are born in prison never experience a
normal family life, sometimes till the
permitted age of six years. The confinement
of children along with their mothers leads
to the confinement of their psyche. Due to
prolonged stay in a negative and custodial
environment, the socialisation patterns of
these children get severely affected. The
only image of male figures is that of
authoritative police and prison officials.
They are unaware of the concept of a home,
as normal children understand it. The effect
of their environment on their psyche is so
strong
that
boys
may
be
found
impersonating and talking like the female
gender, having grown up only among
women confined in the female ward.
Unusual sights, like that of stray animals
on the road (seen on the way to court with
the mother) are frightening to them. There
are common instances of children getting
frequently
transferred
(due
to
overcrowding) with their mothers from one
prison to another, which leads to their
uprooting and unsettling. Such children
become
violent
and
aggressive,
or
alternatively, show withdrawn behaviour in
prison. They also become victims of
physical beatings by their mothers who
sometimes take out their frustrations on
their loved ones.
VI. Statutory Framework

24. Statutory frameworks which
regulate and govern the rights of vulnerable
children and applicable to this case include
Juvenile Justice (Care and Protection of
Children) Act 201520, Legal Services
Authorities Act 1987, Right of Children to
Free and Compulsory Education Act
200921, UP Jail Manual 2022, and Model
Prison Manual, 2016.

VI (A). Juvenile Justice (Care
and Protection of Children) Act, 2015

25. The JJ Act is a comprehensive
enactment provides for identification of
children who belong to marginalized
classes or are otherwise in need of care and
protection. The enactment also creates
authorities and mechanisms for bringing
the rights of children to fruition.

26. Parents who are in jail are
unable to take measures for well being of
their children. The said class of children are
within the ambit of Section 2(14) (v) of JJ
Act:

 "Section 2 (14) "child in need of
care and protection" means a child-
 (v) who has a parent or guardian
and such parent or guardian is found to be
unfit or incapacitated, by the Committee or
the Board, to care for and protect the safety
and well-being of the child; or
Section 2 (22) "Committee" means
Child Welfare Committee constituted under
section 27
Section
2(21)
"child
care
institution" means Children Home, open
shelter, observation home, special home,
place of safety, Specialised Adoption
Agency and a fit facility recognised under
4 All. Smt. Rekha Vs. State of U.P.
767
this Act for providing care and protection to
children, who are in need of such services;"

27. Section 30 of the JJ Act
prescribes the functions and responsibilities
of Child Welfare Committee22. The
legislative intent of the provision is also to
bring the aforesaid category of children
within the scope of the duties of CWC:

 "Section 30- The functions and
responsibilities of the Committee shall
include-
 (i) taking cognizance of and
receiving the children produced before it;
 (ii) conducting inquiry on all
issues relating to and affecting the safety
and well-being of the children under this
Act;
 (iii) directing the Child Welfare
Officers or probation officers or District
Child Protection Unit or non-governmental
organisations
to
conduct
social
investigation and submit a report before the
Committee;
(iv)
conducting
inquiry
for
declaring fit persons for care of children in
need of care and protection;
(v) directing placement of a child in
foster care;
(vi)
ensuring
care,
protection,
appropriate rehabilitation or restoration of
children in need of care and protection,
based on the childs individual care plan and
passing necessary directions to parents or
guardians or fit persons or childrens homes
or fit facility in this regard;
(vii) selecting registered institution
for placement of each child requiring
institutional support, based on the childs
age, gender, disability and needs and
keeping in mind the available capacity of
the institution;
(viii) conducting at least two
inspection visits per month of residential
facilities for children in need of care and
protection and recommending action for
improvement in quality of services to the
District Child Protection Unit and the State
Government;
(ix) certifying the execution of the
surrender deed by the parents and ensuring
that they are given time to reconsider their
decision as well as making all efforts to
keep the family together;
(x) ensuring that all efforts are
made for restoration of abandoned or lost
children to their families following due
process, as may be prescribed;
(xi)
declaration
of
orphan,
abandoned and surrendered child as legally
free for adoption after due inquiry;
(xii) taking suo motu cognizance of
cases and reaching out to children in need
of care and protection, who are not
produced before the Committee, provided
that such decision is taken by at least three
members;
(xiii)
taking
action
for
rehabilitation of sexually abused children
who are reported as children in need of care
and protection to the Committee by Special
Juvenile Police Unit or local police, as the
case may be, under the Protection of
Children from Sexual Offences Act, 2012
(32 of 2012);
(xiv) dealing with cases referred by
the Board under sub-section (2) of section
17;
(xv) co-ordinate with the police,
labour department and other agencies
involved in the care and protection of
children with support of the District Child
Protection Unit or the State Government;

(xvi) in case of a complaint of
abuse of a child in any child care
institution, the Committee shall conduct an
inquiry and give directions to the police or
the District Child Protection Unit or labour
768 INDIAN LAW REPORTS ALLAHABAD SERIES
department or childline services, as the case
may be;
(xvii) accessing appropriate legal
services for children;
(xviii) such other functions and
responsibilities, as may be prescribed."

28. Section 31 of the JJ Act
contemplates production of children in
need of care before the CWC. Children of
prisoners who live in jails with the latter
are also liable to be produced before the
CWC. Jail authorities and the police
authorities fall within the description of
"any public servant" under the provision.

 "31.
Production
before
Committee.-
 (1) Any child in need of care and
protection may be produced before the
Committee by any of the following
persons, namely:-
 (i) any police officer or special
juvenile police unit or a designated Child
Welfare Police Officer or any officer of
District Child Protection Unit or inspector
appointed under any labour law for the time
being in force;
 (ii) any public servant;
 (iii) Childline Services or any
voluntary
or
non-governmental
organisation or any agency as may be
recognised by the State Government;
 (iv) Child Welfare Officer or
probation officer;
 (v) any social worker or a public
spirited citizen;
 (vi) by the child himself; or
 (vii)
any
nurse,
doctor
or
management of a nursing home, hospital or
maternity home: Provided that the child
shall be produced before the Committee
without any loss of time but within a period
of twenty-four hours excluding the time
necessary for the journey.
 (2) The State Government may
make rules consistent with this Act, to
provide for the manner of submitting the
report to the Committee and the manner of
sending and entrusting the child to
children's home or fit facility or fit person,
as the case may be, during the period of the
inquiry."

29. The nature orders to be passed
by the CWC are enumerated in Section 37
of the JJ Act:

 "37. Orders passed regarding a
child in need of care and protection.-
 (1) The Committee on being
satisfied through the inquiry that the child
before the Committee is a child in need of
care and protection, may, on consideration
of Social Investigation Report 1 [***] and
taking into account the child's wishes in
case the child is sufficiently mature to take
a view, pass one or more of the following
orders, namely:-
 (a) declaration that a child is in
need of care and protection;
 (b) restoration of the child to
parents or guardian or family with or
without supervision of Child Welfare
Officer or designated social worker;
 (c) placement of the child in
Children's
Home
or
fit
facility
or
Specialised Adoption Agency for the
purpose of adoption for long term or
temporary care, keeping in mind the
capacity of the institution for housing such
children,
either
after
reaching
the
conclusion that the family of the child
cannot be traced or even if traced,
restoration of the child to the family is not
in the best interest of the child;
 (d) placement of the child with fit
person for long term or temporary care;
 (e) foster care orders under
section 44;
4 All. Smt. Rekha Vs. State of U.P.
769
 (f) sponsorship orders under
section 45;
 (g) directions to persons or
institutions or facilities in whose care the
child is placed, regarding care, protection
and rehabilitation of the child, including
directions relating to immediate shelter and
services
such
as
medical
attention,
psychiatric
and
psychological
support
including
need-based
counselling,
occupational
therapy
or
behaviour
modification therapy, skill training, legal
aid,
educational
services,
and
other
developmental activities, as required, as
well as follow-up and coordination with the
District Child Protection Unit or State
Government and other agencies;
(h) declaration that the child is
legally free for adoption under section 38.
(2) The Committee may also pass
orders for-
(i) declaration of fit persons for
foster care;
(ii) getting after care support under
section 46 of the Act; or
(iii) any other order related to any
other function as may be prescribed"

30. The functions of CWC were set
forth by the Supreme Court in In Re:
Right to Privacy of Adolescents23 as
under:

 "28.2 If a child is residing with a
person who has injured, exploited or
abused the child or has violated any other
law for the time being in force meant for
the protection of the child, the said child
becomes
a
child in need of care
and
protection. Thus, if a child who is a
victim of an offence under the POCSO
Act is residing with the accused, the child
becomes
a
child in need of care
and
protection. Even a child who has a parent
or guardian and if such parent or guardian
is
found to be
unfit to take
care of the
child, in such a case, the child is covered by
the
definition
under
sub-section
(14) of Section 2 of the JJ Act. Therefore,
the
CWC
has to exercise
the
power to provide
basic
needs
and
protection to such children in need of care
and protection.
29.1 Under clause (vi) of Section
30, it is the duty of the CWC to ensure
care, protection, appropriate rehabilitation
or
restoration of children in need of care
and protection based on the child's
individual care plan. The CWC cannot wait
till
the
children in need of care
and
protection are produced before it. Under
clause (xii) of Section 30, the CWC must
take suo motu cognizance of the cases and
reach out to the children in need of care and
protection. What is important here is clause
(xiii) of Section 30, which mandates that it
is the duty of the CWC to take action for
the
rehabilitation of sexually
abused
children who are children in need of care
and protection."

VI (B). Right of Children to Free
and Compulsory Education Act, 2009

31. The Right to Education Act,
2009 which was enacted in the aftermath of
Article 21A of the Constitution of India is
the legal instrument to carry out the
constitutional intent of providing for free
and compulsory education to all children in
the country.

32. Some of the provisions of the
Right to Education Act, 2009 relevant to
this case shall now be discussed.

33. The children who reside with
their parents in jail also suffer from various
disadvantages owing to their special and
adverse circumstances. The said children
770 INDIAN LAW REPORTS ALLAHABAD SERIES
come within the category of Section 2(d) of
Right to Education Act, 2009:

 "2
(d)
"child
belonging
to
disadvantaged group" means [a child with
disability or] a child belonging to the
Scheduled Caste, the Scheduled Tribe, the
socially and educationally backward class
or such other group having disadvantage
owing to social, cultural, economical,
geographical, linguistic, gender or such
other factor, as may be specified by the
appropriate Government, by notification;

34. Section 3 vests the right of free
and compulsory education in children:

 Section 3. Right of child to free
and compulsory education.
 [(1) Every child of the age of six
to fourteen years, including a child referred
to in clause (d) or clause (e) of section 2,
shall have the right to free and compulsory
education in a neighbourhood school till
the completion of his or her elementary
education.]
 (2) For the purpose of subsection (1), no child shall be liable to pay
any kind of fee or charges or expenses
which may prevent him or her from
pursuing and completing the elementary
education.
 (3) A
child
with
disability
referred
to
in
sub-clause (A) of
clause (ee) of section 2 shall, without
prejudice to the provisions of the Persons
with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation)
Act, 1995 (1 of 1996), and a child referred
to
in
sub-clauses (B) and (C) of
clause (ee) of section 2, have the same
rights to pursue free and compulsory
elementary education which children with
disabilities have under the provisions of
Chapter V of the Persons with Disabilities
(Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995:
 Provided
that
a
child
with
"multiple
disabilities"
referred
to
in
clause (h) and
a
child
with
"severe
disability" referred to in clause (o) of
section 2 of the National Trust for Welfare
of Persons with Autism, Cerebral Palsy,
Mental
Retardation
and
Multiple
Disabilities Act, 1999 (44 of 1999) may
also have the right to opt for home-based
education.]"

35. Section 4 of Right to Education
Act, 2009 contains special provisions for
children who are not admitted to or have
not completed elementary education:

 "Section 4. Special provisions for
children not admitted to, or who have not
completed, elementary education-
 Where a child above six years of
age has not been admitted in any school or
though admitted, could not complete his or
her elementary education, then, he or she
shall be admitted in a class appropriate to
his or her age:
 Provided that where a child is
directly admitted in a class appropriate to
his or her age, then, he or she shall, in order
to be at par with others, have a right to
receive special training, in such manner,
and within such time-limits, as may be
prescribed:

 Provided further that a child so
admitted to elementary education shall be
entitled to free education till completion of
elementary education even after fourteen
years."

36. Section 13 of Right to
Education Act, 2009 directs no capitation
fee and provide for screening procedure for
admission:
4 All. Smt. Rekha Vs. State of U.P.
771
 "Section 13 No capitation fee
and screening procedure for admission.
 (1) No school or person shall,
while admitting a child, collect any
capitation fee and subject the child or his
or her parents or guardian to any
screening procedure.
 (2) Any school or person, if in
contravention of the provisions of subsection (1),--
 (a) receives capitation fee, shall
be punishable with fine which may
extend to ten times the capitation fee
charged;
 (b) subjects a child to screening
procedure, shall be punishable with fine
which
may
extend
to
twenty-five
thousand
rupees
for
the
first
contravention and fifty thousand rupees
for each subsequent contraventions."

37. Section 14 of Right to
Education Act, 2009 mandates that no
child shall be denied admission in school
for lack of age proof:

 " Section 14. Proof of age for
admission.
 (1)
For
the
purposes
of
admission to elementary education, the
age of a child shall be determined on the
basis of the birth certificate issued in
accordance with the provisions of the
Births,
Deaths
and
Marriages
Registration Act, 1886 (6 of 1886) or on
the basis of such other document, as may
be prescribed.
 (2) No child shall be denied
admission in a school for lack of age
proof."

38. Section 15 of Right to
Education Act, 2009 visualizes admission
of the child even after the commencement
of the academic year.
 "Section 15.