# Smt Rohini & Anr v. State Of U.P. & Ors

- **Citation:** (2025) 12 ILRA 139
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-05
- **Case number:** Habeas Corpus Writ Petition No. 572 of 2025
- **Bench:** Salil Kumar Rai, Zafeer Ahmad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rohini-anr-v-state-of-u-p-ors-52812
- **Pages:** 11

## Text

12 All. Smt. Rohini & Anr. Vs. State of U.P. & Ors.
139
(2025) 12 ILRA 139
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2025

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE ZAFEER AHMAD, J.

Habeas Corpus Writ Petition No. 572 of 2025

Smt Rohini & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Issue for Consideration
Whether the corpus is a minor and below 18
years of age, i.e., a child as defined under
Section 2 (12) of the Act, 2015 and the Child
Welfare Committee has the jurisdiction to take
the corpus under its care and protection or in
custody and order dated 30.07.2025 passed by
the Child Welfare Committee is liable to be
quashed?

Head Notes
The Constitution of India, 1950-Article
226; The Juvenile Justice (Care and
Protection
of
Children)
Act,
2015Section 2(12), 27(9), 29 & 94; The
Juvenile Justice (Care and Protection of
Children) Rules, 2016-Rule 19(2)- That
a writ of Habeas Corpus was not to be
entertained when a person is put to
judicial custody or police custody by the
competent Court by an order which
prima facie did not appear to be without
jurisdiction or was not passed in an
absolutely mechanical manner or was
not wholly illegal. -The order of the
court without jurisdiction or was passed
in an absolutely mechanical manner or
was wholly illegal, the petition for
Habeas Corpus would be maintainable-
Child
Welfare
Committee
has
not
recorded
any
finding
as
to
the
genuineness of the school records -
There is nothing on record disclosing the
source of entries made in the school
record- Child Welfare Committee has
also not taken the evidence of the
Principal of the institution to verify the
school
records
produced
before
it-
Father of the corpus was also not called
by the Child Welfare Committee to verify
the age of the corpus-Writ petition
allowed. (E-15)

Held- The order passed by the Child Welfare
Committee has been passed mechanically and
without any application of mind, is without
jurisdiction and nullity. The detention of the
petitioner in Government Children Home (Girls),
Swaroop Nagar, Kanpur Nagar is without
jurisdiction.

Case Law Cited
Suresh vs. State of Uttar Pradesh and Anr. 2025
SCC OnLine SC 1579; P. Yuvaprakash vs. State
Rep. by Inspector of Police 2023 SCC OnLine SC
846; Manubhai Ratilal Patel Tr.Ushaben vs.
State of Gujarat (2013) I SCC 314; Madhu
Limaye, In re, (1969) SCC 292; Ummu Sabeena
vs. State of Kerela & Ors. (2011) 10 SCC 781;
Rachna and Anr. vs. State of U.P. and Ors. AIR
2021 All 109 (FB)

List of Acts
The Constitution of India, 1950-Article 226; The
Juvenile
Justice
(Care
and
Protection
of
Children) Act, 2015; The Juvenile Justice (Care
and Protection of Children) Rules, 2016

List of Keywords
Writ of Habeas Corpus; Maintainable ; order of
the court without jurisdiction; or absolutely
mechanical manner; or was wholly illegal.

Case Arising From
The order dated 30.07.2025 passed by the Child
Welfare Committee detaining the petitioner in
Government Children Home (Girls), Swaroop
Nagar, Kanpur Nagar

Appearances for Parties
Counsel for Petitioner(s) : Shailendra Kumar
Tripathi
Counsel for Respondent(s) : G.A.

(Delivered by Hon'ble Salil Kumar Rai, J.)

The present petition has been filed for
a writ of Habeas Corpus to release the
140 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner no. 1 from Rajkiya Balgrih
(Balika), Swaroop Nagar, Kanpur Nagar.

The petitioners claim to be married
according to Hindu Rites and Customs and
that petitioner no.2 is the husband of
petitioner no. 1.

It is stated in the writ petition that the
date of birth of petitioner no. 1 is
01.01.2005 and in support of the aforesaid
averment, a mark-sheet allegedly issued by
Rameshwar
Singh,
Janta
Vidhyalaya,
Khama Paraur, Kannauj as well as family
register of petitioner no. 1 are annexed with
the writ petition. The Aadhaar card of
petitioner no. 1 annexed with the writ
petition also discloses that the date of birth
of petitioner no. 1 is 01.01.2005. The case
of the petitioners is that petitioner no. 1 had
gone with petitioner no. 2 and married him
in 2023 voluntarily and no force or
coercion was applied on her. Respondent
no. 5, who is the mother of petitioner no. 1
lodged a first information report on
25.01.2024 registering Case Crime No. 15
of 2024 under Sections 147, 363, 366, 323,
506 IPC. The petitioner no. 1, after being
recovered was subsequently handed over to
respondent no. 5 but, it is alleged that she
was again abducted by petitioner no. 2. It
was claimed in the first information report
that the date of birth of petitioner no. 1 was
11.05.2008. After recovery, the petitioner
no. 1 was medically examined and the
medical report opined that the age of
petitioner no. 1 was 18 years or above. It is
stated by the complainant that petitioner no.
1 had studied in Primary School Sarhati,
District Kannauj and it transpires that the
age of petitioner no. 1 was recorded in her
school records as 11.05.2008.

In her statement recorded under Section
164 Cr.P.C., the petitioner no. 1 admitted that
she had voluntarily left her parental home and
had married petitioner no. 2 and no force or
coercion was applied on her. In her statement
under Section 164 Cr.P.C. recorded on
13.03.2024, petitioner no.1 stated her age to
be 19 years.

Subsequently, the Investigating Officer
of Case Crime No. 15 of 2024 filed an
application before the Special Judge (POCSO
Act) / Additional Sessions Judge, Kannauj
complaining that petitioner no.1 had eloped
with petitioner no. 2 four times and had to be
recovered every time which wasted the time
of the Court and also of the administration. It
was prayed that the petitioner no. 1 be kept in
Naari Niketan as her date of birth was entered
in school records as 11.05.2008. On the
aforesaid application, the Special Judge
(POCSO
Act)
vide
his
order
dated
19.02.2025 directed that the matter be put up
before the Child Welfare Committee. The
Child Welfare Committee, initially, by its
order dated 20.02.2025 sent the petitioner no.
1 in foster care of one Poonam Katiyar and
Sub Inspector Ram Prakash. Subsequently,
by its order dated 30.07.2025, the Child
Welfare Committee directed that petitioner
no. 1 be kept at Government Children Home
(Girls), Swaroop Nagar, Kanpur Nagar. The
copy of the order annexed with the counter
affidavit filed by the Additional Government
Advocate does not contain the date of the
order but it has been averred in the counter
affidavit that the order was passed on
30.07.2025. In the counter affidavit, the
Additional Government Advocate has also
annexed the transfer certificate of petitioner
no. 1 issued by the Primary School, Sarhati
which records the date of birth of petitioner
no. 1 as 11.05.2008.

In its order dated 30.07.2025, the
Child Welfare Committee notes that the
petitioner no. 1 had stated that her date of
12 All. Smt. Rohini & Anr. Vs. State of U.P. & Ors.
141
birth in the school records was noted as
11.05.2008 on the statement of her father
which she did not accept and petitioner no.
1 had refused to go with her parents
because her father wanted her to marry
somebody else.

Petitioner no. 1 was produced before
this Court on 21.08.2025, on which date,
the Court examined petitioner no.1 who
stated that she did not wish to stay with her
parents and wanted to go with her husband,
i.e., petitioner no. 2.

It has been argued by the counsel for
the petitioners that petitioner no. 1 is major
as would be evident from the medical
report and her statement recorded under
Section 164 Cr.P.C. and is not a child as
defined under the Juvenile Justice (Care
and Protection of Children) Act, 2015
(hereinafter referred to as, 'Act, 2015'). It
was argued that the petitioners are married
according to Hindu rites and the said
marriage is a valid marriage under the Hindu
Marriage Act, therefore, the mother of
petitioner no. 1 had no guardianship rights
over petitioner no. 1 and the order of the
Child Welfare Committee dated 30.07.2025
was without jurisdiction. It has been further
argued that the order dated 30.07.2025 has
been passed by the Child Welfare Committee
mechanically and without application of
mind. It has been argued that for the aforesaid
reason, the detention of petitioner no. 1 at
Government
Children
Home
(Girls),
Swaroop Nagar, Kanpur Nagar is illegal and
without authority of law. It was further
argued that the order dated 30.07.2025 passed
by the Child Welfare Committee is liable to
be quashed and a writ of Habeas Corpus is to
be issued to release the petitioner no. 1.

Rebutting the argument of the counsel
for
the
petitioners,
the
Additional
Government Advocate has mainly argued
that the corpus is kept at Government
Children Home (Girls), Swaroop Nagar,
Kanpur Nagar on the orders of the Child
Welfare Committee which is a Court,
therefore, the present petition for a writ of
Habeas Corpus is not maintainable and is
liable to be dismissed. In support of his
contention, the AGA has mainly relied on
the judgment of Full Bench of this Court
reported in Rachna and Anr. vs. State of
U.P. and Ors. AIR 2021 All 109 (FB). It
was argued that under Section 94 of Act,
2015, the school records have priority over
medical report and because the corpus is
below 18 years of age and minor according
to school records, therefore, the order dated
30.07.2025 passed by the Child Welfare
Committee is in accordance with law and
there is no illegality in the aforesaid order
so as to occasion interference by this Court
under Article 226 of the Constitution of
India. It was argued that for the aforesaid
reasons, the writ petition is liable to be
dismissed.

We have considered the submission of
the counsel for the parties.

It would be appropriate that the
objections
of
the
AGA
to
the
maintainability of the present Habeas
Corpus petition be considered first.

The AGA argues that the Habeas
Corpus petition is not maintainable because
the corpus is detained at Government
Children Home (Girls), Swaroop Nagar,
Kanpur Nagar on the orders of the Child
Welfare Committee which is a Court. The
AGA relies on Section 27 (9) of the Act,
2015 which provides that the Child Welfare
Committee shall function as a bench and
shall have the powers conferred by the
Code of Criminal Procedure, 1973 on a
142 INDIAN LAW REPORTS ALLAHABAD SERIES
Metropolitan Magistrate or, as the case may
be, a Judicial Magistrate of I Class to argue
that the Child Welfare Committee is a
Court. In support of his contention, the
AGA has relied mainly on the judgment of
the Full Bench of this Court in Rachna and
Anr. (supra).

It has been observed by the Supreme
Court in Ummu Sabeena vs. State of
Kerela & Ors. (2011) 10 SCC 781 that
procedural safeguards given for protection
of personal liberty must be strictly
followed. The history of personal liberty is
a history of insistence on procedural
safeguards. It was observed by the Supreme
Court that the principal of Habeas Corpus
has been incorporated in our Constitutional
law and in a democratic republic, the
Judges owe a duty to safeguard the liberty
not only of the citizens but also of all
persons within the territory of India. The
most effective way of doing the same was
by way of exercise of power by the Court
by issuing a writ of Habeas Corpus. It was
further observed that the aforesaid facet of
the writ of Habeas Corpus makes it a writ
of the highest constitutional importance
being a remedy available to the lowliest
citizens
against
the
most
powerful
authority. It has been said that the writ of
Habeas Corpus is the key that unlocks the
door to freedom.

It is in the above background that we
shall consider the objections regarding the
maintainability of the present petition.

The issue as to whether a petition for
writ of Habeas Corpus was maintainable in
cases of detention by an order of the Court
was considered by the Supreme Court in
several cases and it has been held that a
writ of Habeas Corpus was not to be
entertained when a person is put to judicial
custody or police custody by the competent
Court by an order which prima facie did
not appear to be without jurisdiction or was
not passed in an absolutely mechanical
manner or was not wholly illegal. The
aforesaid implies that in case, the order of
the court was without jurisdiction or was
passed in an absolutely mechanical manner
or was wholly illegal, the petition for
Habeas Corpus would be maintainable and
a writ directing release of the detenue
would be issued. At this stage, it would be
relevant to consider two decisions of the
Supreme Court.

The
Supreme
Court
in
Madhu
Limaye, In re, (1969) SCC 292, while
considering the legality of the detention
after a judicial remand, observed that for
successfully opposing the petition for
Habeas Corpus, it was necessary for the
State to establish that at the stage of
remand, the Magistrate directed detention
in jail custody, after applying his mind to
all
relevant
matters.
Similarly,
in
Manubhai Ratilal Patel Tr.Ushaben vs.
State of Gujarat (2013) I SCC 314, the
Supreme Court considered the legality of
the remand orders passed by the Magistrate
and dismissed the Habeas Corpus petition
after noting that there was no illegality in
the order passed by the Magistrate
remanding the accused to judicial custody.
The observations of the Supreme Court in
paragraph no. 24 and 25 of the aforesaid
judgment are reproduced below:-

24. The act of directing remand
of an accused is fundamentally a judicial
function. The Magistrate does not act in
executive capacity while ordering the
detention of an accused. While exercising
this judicial act, it is obligatory on the part
of the Magistrate to satisfy himself
whether the materials placed before him
12 All. Smt. Rohini & Anr. Vs. State of U.P. & Ors.
143
justify such a remand or, to put it
differently, whether there exist reasonable
grounds to commit the accused to custody
and extend his remand. The purpose of
remand as postulated under Section 167 is
that investigation cannot be completed
within 24 hours. It enables the Magistrate
to see that the remand is really necessary.
This requires the investigating agency to
send the case diary along with the remand
report
so
that
the
Magistrate
can
appreciate the factual scenario and apply
his mind whether there is a warrant for
police remand or justification for judicial
remand or there is no need for any remand
at all. It is obligatory on the part of the
Magistrate to apply his mind and not to
pass an order of remand automatically or
in a mechanical manner.

25. It is apt to note that in Madhu
Limaye, In re [(1969) 1 SCC 292 : AIR
1969 SC 1014] it has been stated that :
(SCC p. 299, para 12)

"12. Once it is shown that the
arrests made by the police officers were
illegal, it was necessary for the State to
establish that at the stage of remand, the
Magistrate directed detention in jail
custody after applying his mind to all
relevant matters."

 (Emphasis supplied)

It be noted that in the aforesaid
paragraphs,
the
Supreme
Court
has
observed that it was obligatory on the part
of the Magistrate to apply his mind and not
to pass an order of remand automatically or
in a mechanical manner. The condition that
an order shall not be passed in a
mechanical manner and should be passed
after application of mind is an essential
feature of a judicial order. The Supreme
Court in Manubhai Ratilal Patel(supra)
further observed in paragraph no. 31:-

"31.
...
It
is
well-accepted
principle that a writ of habeas corpus is not
to be entertained when a person is
committed to judicial custody or police
custody by the competent court by an order
which prima facie does not appear to be
without jurisdiction or passed in an
absolutely mechanical manner or wholly
illegal. As has been stated in B.
Ramchandra Rao [(1972) 3 SCC 256:
1972 SCC (Cri) 481: AIR 1971 SC 2197]
and Kanu Sanyal [(1974) SCC 141:1974
SCC (Cri) 280], the court is required to
scrutinize the legality or otherwise of the
order of detention which has been passed.
Unless the court is satisfied that a person
has been committed to jail custody by
virtue of an order that suffers from the
vice of lack of jurisdiction or absolute
illegality, a writ of habeas corpus cannot
be granted.

....

....
.

...."

 (Emphasis supplied)

It is apparent from the observations of
the Supreme Court reproduced above that
in a Habeas Corpus petition, the legality of
a detention order can be examined to
ascertain whether the order suffers from a
lack of jurisdiction or is absolutely illegal
or has been passed in a wholly mechanical
manner. If the order detaining the person is
without jurisdiction or is absolutely illegal
or has been passed in a mechanical manner,
a writ of Habeas Corpus directing the
release of the detenue would be issued.
144 INDIAN LAW REPORTS ALLAHABAD SERIES

The judgment of the Full Bench of this
Court in Rachna and Anr. (supra) which
has been relied upon by the AGA does not
hold that a petition for Habeas Corpus
would not be maintainable even in
circumstances where an order passed by the
Child
Welfare
Committee
would
be
without jurisdiction and a nullity or where
the order has been passed mechanically and
without application of mind.

In the present case, the Child Welfare
Committee has passed the order detaining
the corpus, i.e., petitioner no. 1, on the
ground that the corpus was below 18 years
of age, therefore, a child. The Child
Welfare Committee has relied on the
school records wherein the date of birth of
petitioner
no.
1
was
recorded
as
11.05.2008.

Child has been defined under Section
2(12) of the Act, 2015 to mean a person
who has not completed 18 years of age.
Under Section 29 of the Act, 2015, the
Child
Welfare
Committee
has
been
empowered to dispose of cases for the care,
protection, treatment, development and
rehabilitation of children in need of care
and protection, as well as to provide for
their basic needs and protection. A child in
need of care and protection has been
defined in Section 2 (14) of the Act, 2015.
The issue in the present case is as to
whether the corpus, i.e., the petitioner no. 1
is a child as defined in Section 2 (12) of the
Act, 2015 and thus covered by Section 2
(14) and whether the Child Welfare
Committee had the jurisdiction to take the
corpus, i.e., the petitioner no. 1 under its
protection and custody and act in exercise
of powers under Section 29 of the Act,
2015. The decision on the issue is
dependent on the determination of age of
the corpus, i.e., the petitioner no. 1.

Rule 19 (2) of the Juvenile Justice
(Care and Protection of Children) Rules,
2016 states that in any inquiry as to
whether any person produced before it was
a child in need of care and protection, the
Committee shall, prima facie, determine the
age of child in order to ascertain its
jurisdiction pending further inquiry as per
Section 94 of the Act, if need be. Section
94 of the Act, 2015 is reproduced below:-

94.
Presumption
and
determination of age.-(1) Where, it is
obvious to the Committee or the Board,
based on the appearance of the person
brought before it under any of the provisions
of this Act (other than for the purpose of
giving evidence) that the said person is a
child, the Committee or the Board shall
record such observation stating the age of the
child as nearly as may be and proceed with
the inquiry under section 14 or section 36, as
the case may be, without waiting for further
confirmation of the age.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought before
it is a child or not, the Committee or the
Board, as the case may be, shall undertake
the process of age determination, by seeking
evidence by obtaining-

(i) the date of birth certificate
from the school, or the matriculation or
equivalent certificate from the concerned
examination Board, if available; and in the
absence thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i)
and (ii) above, age shall be determined by
12 All. Smt. Rohini & Anr. Vs. State of U.P. & Ors.
145
an ossification test or any other latest
medical age determination test conducted
on the orders of the Committee or the
Board:

Provided such age determination test
conducted on the order of the Committee or
the Board shall be completed within fifteen
days from the date of such order.

(3) The age recorded by the
Committee or the Board to be the age of
person so brought before it shall, for the
purpose of this Act, be deemed to be the
true age of that person.

 (Emphasis supplied)

A reading of Section 94 of the Act,
2015 shows that the Committee shall
undertake the process of age determination
by seeking evidence, first by obtaining the
date of birth certificate from the school, if
available, and in absence thereof, the birth
certificate given by the local body, and in
absence of birth certificates, the age shall
be determined by the latest medical age
determination test conducted on the orders
of the Committee. Mere production of the
school records would not be sufficient for
the Committee to determine the age of the
person produced before it. As provided in
Section 27 (9) of the Act, 2015, the Child
Welfare Committee has powers conferred
by the Code of Criminal Procedure, 1973
on the Judicial Magistrate of I Class. The
Committee, thus, has the power to take
evidence on oath and to scrutinize the
evidence
produced
before
it.
The
Committee has to act judicially. In case the
Child Welfare Committee fails to scrutinize
evidence and passes a mechanical order
accepting the school records produced
before it without any application of mind
and without the records being proved as
required in law, the order of the Child
Welfare Committee would be absolutely
illegal and a Habeas Corpus petition would
lie before the Court for release of the
person who has been taken in its custody
by the Child Welfare Committee.

A reading of Section 94(2) of the Act,
2015 also shows that the school records,
i.e., entries in the admission register or in
the
transfer
certificate
are
not
the
documents stipulated in the aforesaid
provision as evidence of the date of birth of
the person produced before the Committee.
Section 94(2) (i) provides that date of birth
certificate shall be obtained from the
school. A transfer certificate or entries in
the admission register of the school are not
date of birth certificates. In our aforesaid
view, we are supported by the judgment of
Supreme Court in P. Yuvaprakash vs. State
Rep. by Inspector of Police 2023 SCC
OnLine SC 846.

In the aforesaid case, the school
transfer certificate was produced to prove
the age of the child. The Supreme Court
held that a school transfer certificate cannot
be relied upon to determine the age of child
under the Act, 2015. In this context, the
observation of the Supreme Court in
paragraph nos. 14, 18 and 19 of the
aforesaid judgment are reproduced below:-

"14. Section 94 (2)(iii) of the JJ
Act clearly indicates that the date of birth
certificate from the school or matriculation
or equivalent certificate by the concerned
examination board has to be firstly
preferred in the absence of which the birth
certificate issued by the Corporation or
Municipal Authority or Panchayat and it is
only thereafter in the absence of these such
documents the age is to be determined
through "an ossification test" or "any
146 INDIAN LAW REPORTS ALLAHABAD SERIES
other latest medical age determination
test" conducted on the orders of the
concerned authority, i.e. Committee or
Board or Court. In the present case,
concededly, only a transfer certificate and
not the date of birth certificate or
matriculation or equivalent certificate was
considered. Ex. C1, i.e., the school transfer
certificate showed the date of birth of the
victim as 11.07.1997.

....

....

....

Since it did not answer to the
description of any class of documents
mentioned in Section 94(2)(i) as it was a
mere transfer certificate, Ex C-1 could not
have been relied upon to hold that M was
below 18 years at the time of commission
of the offence.

18. Reverting to the facts of this
case, the headmaster of M's School, CW- 1,
was summoned by the court and produced
a Transfer Certificate (Ex.C-1). This
witness produced a Transfer Certificate
Register containing M's name. He deposed
that she had studied in the school for one
year, i.e., 2009-10 and that the date of birth
was based on the basis of the record sheet
given by the school where she studied in
the 7th standard. DW-2 TMT Poongothoi,
Headmaster
of
Chinnasoalipalayam
Panchayat School, answered the summons
served by the court and deposed that 'M'
had joined her school with effect from
03.04.2002 and that her date of birth was
recorded as 11.07.1997. She admitted that
though the date of birth was based on the
birth certificate, it would normally be
recorded on the basis of horoscope. She
conceded to no knowledge about the basis
on which the document pertaining to the
date of birth was recorded. It is stated
earlier on the same issue, i.e., the date of
birth, Thiru Prakasam, DW-3 stated that
the birth register pertaining to the year
1997 was not available in the record room
of his office.

19. It is clear from the above
narrative that none of the documents
produced during the trial answered the
description of "the date of birth certificate
from the school" or "the matriculation or
equivalent certificate" from the concerned
examination board or certificate by a
corporation, municipal authority or a
Panchayat. In these circumstances, it was
incumbent for the prosecution to prove
through
acceptable
medical
tests/examination that the victim's age was
below 18 years as per Section 94(2)(iii) of
the JJ Act. PW-9, Dr. Thenmozhi, Chief
Civil Doctor and Radiologist at the
General Hospital at Vellore, produced the
X-ray reports and deposed that in terms of
the examination of M, a certificate was
issued stating "that the age of the said girl
would be more than 18 years and less than
20 years". In the cross-examination, she
admitted that M's age could be taken as 19
years. However, the High Court rejected
this evidence, saying that "when the
precise date of birth is available from out
of the school records, the approximate age
estimated by the medical expert cannot be
the determining factor". This finding is, in
this court's considered view, incorrect and
erroneous. As held earlier, the documents
produced, i.e., a transfer certificate and
extracts of the admission register, are not
what Section 94 (2) (i) mandates; nor are
they in accord with Section 94 (2) (ii)
because DW-1 clearly deposed that there
were no records relating to the birth of the
12 All. Smt. Rohini & Anr. Vs. State of U.P. & Ors.
147
victim, M. In these circumstances, the only
piece of evidence, accorded with Section 94
of the JJ Act was the medical ossification
test, based on several X-Rays of the victim,
and on the basis of which PW-9 made her
statement.
She
explained
the
details
regarding examination of the victim's
bones, stage of their development and
opined that she was between 18-20 years;
in cross-examination she said that the age
might be 19 years. Given all these
circumstances, this court is of the opinion
that the result of the ossification or bone
test was the most authentic evidence,
corroborated by the examining doctor, PW9."

 (Emphasis supplied)

The Supreme Court in Suresh vs.
State of Uttar Pradesh and Anr. 2025 SCC
OnLine SC 1579 while considering Rule
12 (3) of the rules framed under The
Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred to
as 'Act, 2000') held that the entries in the
school records would not be acceptable to
determine the age of girl on the testimony
of the school's Headmaster in case the date
of birth in the school records has been
entered on the oral representation of the
parents of the person claiming juvenility.
Observations of the Supreme Court in
paragraph nos. 21, 24 and 25 of the
aforesaid judgment are reproduced below:-

"21. There is no dispute on the
factum that Kaushik Modern Public School,
Khurgaon - the first attended school - is
not a Government School and thus, the
records maintained by the said School
would not be 'public documents'.Moreover,
the Headmaster/Principal of such School
cannot be said to be a 'public servant' for
the purposes of the Evidence Act. The
Headmaster when examined has himself
taken the stand that Kaushik Modern
Public School, Khurgaon was only a State
Government-recognized school.

23. Even otherwise, in the case
at hand, except for the Headmaster's sole
testimony, there is no material to establish
that the date 18.04.1995 as Respondent
No.2's date of birth, as recorded in the
certificate issued by Kaushik Modern
Public School, Khurgaon, was correct. As
a matter of fact, the Principal in his crossexamination
stated
that
when
the
Respondent No.2 was leaving the school on
that day after making cutting he had
written the correct date of birth. Moreover,
the Principal has also stated that the birthdate entry was made on the basis of an
oral representation alone by Respondent
No.2's father and when he was asked for
the horoscope or any other document in
support of the date of birth of the
Respondent No.2, nothing was submitted.
This, in our view, discredits the certificate
issued by the Kaushik Modern Public
School, Khurgaon. As noted hereinbefore,
the other school certificates were issued
following this and therefore, meet the same
fate inasmuch as they cannot be treated as
correct, in the face of conflicting public
records and public documents as also the
Medical Report which state to the contrary.

....

....

.....

24. Rule 12(3)(a) of the Rules
lays down the sequential list of certificates
to be examined and the order thereof. As no
'matriculation or equivalent certificates'
were available under Rule 12(3)(a)(i) of
148 INDIAN LAW REPORTS ALLAHABAD SERIES
the Rules, thus under Rule 12(3)(a)(ii) of
the Rules, 'date of birth certificate from the
school (other than a play school) first
attended' was attracted and certificate
issued by Kaushik Modern Public School,
Khurgaon was taken as conclusive proof of
date of birth. However, the deposition of
the School's Headmaster, especially to the
effect that the birth-date was noted as per
an oral representation by Respondent
No.2's father, makes the said certificate
unreliable. Moving on, Rule 12(3)(a)(iii)
and
Rule
12(3)(b)
of
the
Rules,
respectively, provide for 'birth certificate
given by a corporation or a municipal
authority or a panchayat' and 'only in the
absence of either (i), (ii) or (iii) of clause
(a) above, the medical opinion will be
sought from a duly constituted Medical
Board, which will declare the age of the
juvenile or child.' 18 of 21

25.
From
an
overall
circumspection of all the facts and
circumstances
surrounding
the
case,
including the Rules, the picture which
emerges is that on the one hand, there is
the certificate backed by the testimony of
the Headmaster of the first school (which
as indicated supra notes that the recordal
was made on the oral say-so of Respondent
No.2's father) relating to the date of birth
and the three consequentially-made/issued
certificates, whereas on the other hand,
there exists a statutory document, being a
public record and a public document, in
Form (A) under Rule 2 of the Rules framed
under the U.P. Panchayat Raj Act, 1947
disclosing the year of birth of Respondent
No.2 as 1991 as also the entry in the
Voters' List for the Legislative Assembly of
the year 2012 and the Medical Report
apropos the age of Respondent No.2 given
by
the
Chief
Medical
Officer,
Muzaffarnagar,
who
opined
that
Respondent No.2 was aged about 22 years
on 01.12.2012. As such, the certificate
issued by Kaushik Modern Public School,
Khurgaon could not have been taken as
conclusive proof of date of birth of
Respondent No.2, discarding Form (A)
under Rule 2 of the Rules under the U. P.
Panchayat Raj Act, 1947; the entry in the
Voters' List for the Legislative Assembly of
the year 2012, and; the Medical Report. On
the basis of the latter three documents, it is
clear that Respondent No.2 cannot be said
to have been a 'juvenile' on the date of the
unfortunate incident.

 (Emphasis supplied)

In the present case, the Child Welfare
Committee has not recorded any finding as
to the genuineness of the school records
produced before it. There is nothing on
record disclosing the source of entries
made in the school record and the
reliability of such source. The entries in
school record were also not proved as
required by law. The Child Welfare
Committee has also not taken the evidence
of the Principal of the institution to verify
the school records produced before it. It
would also be relevant to note that the
institution in which the state respondents
claim the corpus was admitted, is not a
government
institution,
therefore,
its
Principal is not a public servant. The father
of the corpus was also not called by the
Child Welfare Committee to verify the age
of the corpus. It is apparent that there is no
determination of the age of the corpus by
the
Child
Welfare
Committee.
The
essential condition for holding that the
corpus is a minor and below 18 years of
age, i.e., a child as defined under Section 2
(12) of the Act, 2015 and the Child Welfare
Committee has the jurisdiction to take the
corpus under its care and protection or in
12 All. State Of U.P. & Anr. Vs. Mohan Lal
149
custody do not exist. The order passed by
the Child Welfare Committee has been
passed mechanically and without any
application of mind. The order dated
30.07.2025 is without jurisdiction and
nullity. The detention of the petitioner in
Government
Children
Home
(Girls),
Swaroop Nagar, Kanpur Nagar is without
jurisdiction.

There is no other document on record
except the medical report, to determine the
age of the corpus. The medical test
determining the age of petitioner no.1
indicates that the age of corpus, i.e.,
petitioner no. 1 is 18 years or above and is,
therefore, not a child as defined in Section
2(12) of Act, 2015. The Child Welfare
Committee has no jurisdiction to take the
corpus, i.e., petitioner no. 1 under its care
and protection or keep her in Government
Children's Home or anywhere else. The
detention of corpus, i.e., petitioner no. 1 in
Rajkiya Balgrih (Balika), Swaroop Nagar,
Kanpur Nagar is without jurisdiction.

For the aforesaid reasons, a writ of
Habeas Corpus is to be issued to release
Smt. Rohini, corpus, i.e., petitioner no. 1.
Consequently, a writ of Habeas Corpus is
issued
directing
the
Superintendent,
Government
Children
Home
(Girls),
Swaroop Nagar, Kanpur Nagar and the
Chairman,
Child
Welfare
Committee,
Kannauj to release forthwith Smt. Rohini,
petitioner no.1. The corpus, i.e., the
petitioner no. 1 is free to go wherever she
likes and to stay with whomsoever she
wants including the petitioner no. 2.

In view of the aforesaid, the petition is
allowed.

A copy of this order be communicated
for
necessary
compliance
to
the
Superintendent,
Government
Children
Home (Girls), Swaroop Nagar, Kanpur
Nagar and the Chairman, Child Welfare
Committee, Kannauj by the Registrar
(Compliance) within one week.
----------
(2025) 12 ILRA 149
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2025

BEFORE

THE HON'BLE NEERAJ TIWARI, J.
THE HON'BLE VIVEK KUMAR SINGH, J.

Civil Misc. Review Application Defective No. 99
of 2025

State Of U.P. & Anr. ...Applicants
Versus
Mohan Lal ...Opposite Party

Issue for Consideration
Whether the explanation given by the Review
Petitioners-State
for
such
huge
delay
in
preferring this Review Petition is satisfactory?

Head Notes
The Code of Civil Procedure, 1908-Section
114
&
Order
XLVII;
The
Limitation
Act,1963-Section 5- Delay of 5743 days in
filing the review application from the date
of judgment under review- Judgment
under review was earlier challenged by
the State of U.P. by filing Special Leave
Petition (C) No.25032 of 2014 with a
delay of 1633 days and the same was
dismissed on the ground of delay as well
as on merit by Hon'ble Supreme Court-
Whether litigants is a private party or
State or Union of India when it comes to
condoning the gross delay of several
years. The government bodies and their
agencies should be vigilant in filing the
petition within time. There is no need to
accept the usual explanation that the
petition was kept pending for several
years due to considerable degree of
procedural red tape in the process. The
government agencies are under a special