# Smt. Soni Saxena @ Neetu Saxena Revisionist v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 1515
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-31
- **Case number:** Criminal Revision No. 6033 of 2023
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-soni-saxena-neetu-saxena-revisionist-v-state-of-u-p-ors-51285
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 342, 376(3) & 506 - POCSO Act,
2012 - Section 5(dha)/6 - Juvenile Justice
(Care and Protection of Children) Act, 2015 -
Section 37(c), 101 - Child Welfare Committee
refused to release victim-girl in care and custody
of her mother for reasons which have been
elaborately dealt with in impugned order dated
23.08.2023 - Appellate court instead of deciding
matter on merits, declined to exercise its powers
on patently wrong assumptions - It is difficult to
understand how such view has been taken by
appellate court that it had no jurisdiction to hear
challenge to order passed by Child Welfare
Committee, in appeal - As is quite obvious,
appeal shall lie to children court against all
orders passed by Child Welfare Committee
except where order has been passed relating to
foster care or sponsorship foster care - Appellate
court's order set aside, matter remanded for
fresh decision in accordance with law. (Para 5, 6)

Revision disposed of. (E-13)

List of Cases cited:

## Text

2 All. Smt. Soni Saxena @ Neetu Saxena Vs. State of U.P. & Ors.
1515
be entertained by Family Court without
pushing the major daughter of the opposite
party to file an independent petition
seeking maintenance under Section 20(3)
of the Act. The family court has got
jurisdiction to decide the case under
Section 125 Cr.P.C. as well as maintenance
suit under Section 20 of the Act, 1956.
Therefore, the family court can exercise
jurisdiction under both the acts and in
appropriate case can grant maintenance to
unmarried major daughter from her father,
even though she has become major, enforcing
her rights under Section 20 of the Act, 1956, so
as to avoid multiplicity of the proceedings.

16. Hon'ble Apex Court also held that
there may be a case where the Family Court has
jurisdiction to decide a case under Section 125
Cr.P.C. as well as the suit under Section 20 of
Act, 1956, in such eventuality, Family Court
can exercise jurisdiction under both the Acts
and in an appropriate case can grant
maintenance to unmarried daughter even
though she has become major enforcing her
right under Section 20 of Act, 1956 so as to
avoid multiplicity of proceeding.

17. Accordingly, present criminal
revision stands allowed and the impugned
order passed by learned family court is set
aside.

18. The Family Court concerned is
directed to treat the application moved by
the applicant/revisionist under Section 125
Cr.P.C. as an application moved under
Section 20(3) of Hindu Adoption and
Maintenance Act, 1956 and decide the
same afresh in accordance with law and on
merits of the case, after giving opportunity
of hearing to both the parties, preferably
within a period of three months from the
date of presentation of certified order of
this Court.
----------
(2024) 2 ILRA 1515
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 6033 of 2023

Smt. Soni Saxena @ Neetu Saxena
 ...Revisionist
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Revisionist:
Sri Jitendra Singh

Counsel for the Respondents:
G.A., Sri Vikesh Kumar Tiwari

Criminal Law - Indian Penal Code, 1860 -
Section 342, 376(3) & 506 - POCSO Act,
2012 - Section 5(dha)/6 - Juvenile Justice
(Care and Protection of Children) Act, 2015 -
Section 37(c), 101 - Child Welfare Committee
refused to release victim-girl in care and custody
of her mother for reasons which have been
elaborately dealt with in impugned order dated
23.08.2023 - Appellate court instead of deciding
matter on merits, declined to exercise its powers
on patently wrong assumptions - It is difficult to
understand how such view has been taken by
appellate court that it had no jurisdiction to hear
challenge to order passed by Child Welfare
Committee, in appeal - As is quite obvious,
appeal shall lie to children court against all
orders passed by Child Welfare Committee
except where order has been passed relating to
foster care or sponsorship foster care - Appellate
court's order set aside, matter remanded for
fresh decision in accordance with law. (Para 5, 6)

Revision disposed of. (E-13)

List of Cases cited:

1. Girish Kumar Vs St. of U.P. & ors.,
2022:AHC:206879
decided
on
25.11.2022,
(Paras 6, 10, 11)
1516 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Jitendra Singh, learned
counsel for the revisionist, Sri Vikesh
Kumar Tiwari, learned counsel for the
opposite party no. 2-the first informant and
learned AGA for the State.

2. This criminal revision has been
filed
challenging
the
order
dated
20.07.2023 and 23.08.2023 passed by the
Child Welfare Committee, Shahjahanpur in
relation to a matter arising out of case
crime no. 01 of 2023 under sections 342,
376(3), 506 IPC and section 5(dha)/6
POCSO Act, by which firstly she was put
in a government protection home under
section 37(c) of the Juvenile Justice (Care
and Protection of Children) Act, 2015 by
Child Welfare Committee vide order dated
20.07.2023 and further an application
moved by her mother for taking her into
her custody, was rejected by order passed
by the Child Welfare Committee on
23.08.2023. By means of a supplementary
affidavit filed by the revisionist an order
passed by the appellate court on 31.10.2023
in an appeal preferred against the order
dated 23.08.2023 whereby the appeal was
dismissed on the ground that the children
court had no jurisdiction to hear the same,
has also been challenged in this criminal
revision.

3. Relevant facts are as below:-

Pradeep Saxena lodged an FIR
against Soni Saxena and several others
with the allegations that he got married to
Soni Saxena about 20 years ago and that
she stayed in conjugal relationship with
him for 12 years and gave birth to four
children. Thereafter she deserted him and
started living with one Monu s/o Payarelal
@ Ram Kishan along with their four kids.
About 20 days ago his younger daughter
aged 14 years was sold off to one Saurabh
s/o Ramesh Lal with the assistance of coaccused persons. It is alleged in the FIR
that Saurabh is aged 35 years and his
daughter is merely 14 years. When the first
informant tried to contact the co-accused
Manorama, she said that his daughter has
been sold off and he may have his share in
the money. On the basis of this FIR case
crime no. 01 of 2023 was lodged on
13.07.2023. The statement of the victim girl
under section 161 Cr.P.C and other
witnesses were recorded. She was put to
medical examination and was found aged
about 16 years. The victim was produced
before the Special Judge, POCSO Act, and
the Court ordered her to be produced
before the Child Welfare Committee. Before
the Child Welfare Committee, she stated
that she wanted to accompany her motherSoni Saxena and Vinay Saxena. The Child
Welfare Committee considered the fact that
Soni Saxena is named as an accused and
Vinay Saxena is not her father, therefore it
will not be proper to send her with them
and directed to lodge her in a juvenile
home. The victim girl sent an application
on 24.07.2023 through Superintendent,
Women Protection Home, with a prayer
that she desired to stay with her motherSoni Saxena. The Child Welfare Committee
considered the application and declined her
to be handed over to her mother, giving
detailed reasons as mentioned in the
impugned order. This order refusing her
custody to her mother, was passed on
23.08.2023. She challenged the same by
filing a Criminal Appeal No. 73 of 2023
(Smt. Soni Saxena @ Neetu Saxena vs.
State of UP and 3 Others). The learned
appellate court dismissed the appeal
holding that it has no jurisdiction to hear
the challenge to the order passed by the
2 All. Smt. Soni Saxena @ Neetu Saxena Vs. State of U.P. & Ors.
1517
Child Welfare Committee. The appellate
court expressed an opinion that such orders
can only be challenged before the Court of
District Magistrate, as provided in section
27(10) of the Juvenile Justice Act, 2015.

4. The appellate court seems to have
passed the order in the light of the
provisions of section 27(10) of the J.J. Act,
2015.
Section
27
deals
with
the
Constitution
of
the
Child
Welfare
Committee, the qualifications of a person
as regard eligibility of the person to be
appointed as a member of a Committee,
disqualifications,
the
tenure
of
the
members, the procedure for inquiry as
regard termination of the members etc.
Section 27(10) of the J.J. Act, 2015
empowers
the
District
Magistrate
to
entertain any grievance arising out of
functioning of a Committee. This section
further empowers the affected child or any
one connected with the child, as the case
may be, to file a complaint before the
District Magistrate for the purpose that he
may take suitable action as regard the
complaints or the grievances which an
affected person may have against the
Committee. These provisions definitely do
not deal with legal challenges to the order
passed by the Committee. An aggrieved
person can challenge the order passed by
the Child Welfare Committee under section
101 of the Juvenile Justice Act, 2015.

Section- 101 of the Juvenile
Justice Act, 2015 is as below:-

"(1) Subject to the provisions of
this Act, any person aggrieved by an order
made by the Committee or the Board
under this Act may, within thirty days
from the date of such order, prefer an
appeal to the "Children's Court", except
for decisions by the Committee related to
Foster Care and Sponsorship After Care
for which the appeal shall lie with the
District Magistrate."

The Allahabad High Court in
Girish Kumar vs. State of U.P. and 3
Others, 2022:AHC:206879 decided on
25.11.2022 observed in Para no. 6 as
below:-

"6. It is quite clear from this
provision of law that appeal shall lie to the
District
Magistrate
with
respect
to
decisions by the Child Welfare Committee
relating to foster care and sponsorship
after care only. The appeal in respect of
other orders passed by the Child Welfare
Committee shall lie to the 'Children's
Court' within 30 days from the date of
order. Before analysing this provision, it
will be appropriate to peruse the order
passed by the Child Welfare Committee to
decide upon whether this order falls in the
category where the appeal may lie to
Children's Court or in the category where
appeal shall lie to District Magistrate."

It was further observed in Para nos. 10
and 11 as below:-

"10. I went through the material
on record in the light of submissions
before this Court. As per scheme of the
Juvenile Justice Act, the Child Welfare
Committee, irrespective of any other law,
has power to deal exclusively with all
proceedings relating to 'children in need
of care and protection' under Section-29
of the Juvenile Justice Act, 2015. The
functions
and
responsibilities
of
Committee include taking cognizance of
and receiving the child produced before it,
conducting inquiry on all issues relating
to safety and well being of a child as well
as ensuring care, protection, appropriate
rehabilitation
and
most
importantly
1518 INDIAN LAW REPORTS ALLAHABAD SERIES
restoration of 'children in need of care
and protection' (Section-30 of the Juvenile
Justice Act, 2015). Section-37 of the
Juvenile Justice Act, 2015 empowers the
Committee, after being satisfied through
an
inquiry,
consideration
of
social
investigation report submitted by Child
Welfare Officer and taking into account
the child's wishes, in case the child is
sufficiently matured, to take a view and
pass one or more of following order,
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
Specialized 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;

(f) sponsorship orders under
section 45;

(g) ........;

(h) .........

10. On perusal of the above
provisions of Juvenile Justice Act, 2015, it
is
demonstrated
that
Child
Welfare
Committee is given vast powers on the
principles of best interest of a child, a
thread which goes through the whole of
the scheme of the Juvenile Justice Act,
2015. It has been specifically provided by
the section-3 of the Juvenile Justice Act,
2015 that Central Government, State
Governments,
the
Board
and
other
agencies, as the case may be, while
implementing the provisions of the Act,
shall be guided by the fundamental
principles which include principles of best
interest,
principle
of
family
responsibilities, the principle of safety, the
principles of repatriation and restoration
and several others.
11. The provisions of law as aforesaid are
being reproduced here with the twin
object; firstly, that when an order is
passed of the nature as is under challenge
before this Court, the appeal shall be
entertainable by the Children's Court and
not by the District Magistrate; the District
Magistrate is empowered to hear appeals
only
against
the
decisions
of
the
Committee relating to foster care and
sponsorship after care. The order in
question does not fall in this category. The
appellate court was thus wrong in holding
that appeal did not lie before it. Therefore,
the impugned order is liable to be setaside; secondly, it may be noted that when
a child in need of care and protection is
lodged in any shelter home, it is a measure
of temporary nature; the Child Welfare
Committee is fully empowered to take a
decision where it is found no more
necessary to detain her. It may be noted
that legally a child in need of care and
protection may be detained for a further
period even if he/she has attained majority
if it is found that it will not be in his/her
best
interest
to
release
him/her
immediately."

5. In the instant case, the Child
Welfare Committee refused to release the
victim-girl in care and custody of her
2 All. Raju Patel Vs. State of U.P. & Anr.
1519
mother for reasons which have been
elaborately dealt with in the impugned
order dated 23.08.2023. The learned
appellate court instead of deciding the
matter on merits, declined to exercise its
powers on patently wrong assumptions. It
is difficult to understand how such a view
has been taken by the appellate court that it
had no jurisdiction to hear the challenge to
an order of this nature passed by the Child
Welfare Committee, in appeal. As is quite
obvious, an appeal shall lie to children
court against all the orders passed by the
Child Welfare Committee except where
order has been passed relating to foster care
or sponsorship foster care.

6. In view of the above, I find it
appropriate to set-aside the order passed by
the appellate court and remand the matter
for decision afresh, according to law.

7. Therefore, this revision is finally
disposed of with a direction to the
appellate court to adjudicate the matter of
custody of the victim, according to law and
the order dated 31.10.2023 passed by the
appellate court is hereby set-aside. The
learned appellate court is expected to
decide the appeal expeditiously.

8. Copy of the order be immediately
transmitted to the court concerned.

Note:- Copy of the order may be
circulated to all the District Courts in the
State of U.P.
----------
(2024) 2 ILRA 1519
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2024

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.
Criminal Revision No. 6307 of 2023

Raju Patel ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri C.P. Upadhyay, Sri Santosh Kumar Mishra

Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 304 r/w 34 & 506 - Code of Criminal
Procedure, 1973 - Sections 319 & 397 - Against
summoning order - In her written report,
informant/P.W.1 (wife of deceased) St.d that
accused took her husband to Jhunjhunpur
crossing, where he was later assaulted - On
being
informed
by
neighbour,
she
and
alongwith co-villagers reached spot and were
told by P.W.2 that revisionist and four others
had beaten her husband and thereafter they
fled away from place of occurrence - She found
him lying injured and groaning - P.W.1 to P.W.4
consistently
corroborated
FIR
version,
implicated revisionist and co-accused in assault
- On consideration of depositions of P.W.1 to
P.W.4 and law laid down by Hon'ble Apex
Court, there is prima facie evidence to summon
revisionist - Trial Court, being satisfied with
evidence on record, rightly exercised power u/s
319 Cr.P.C., committed no illegality - Revision
lacks merit, dismissed. (Para 17 to 19)

Revision dismissed. (E-13)

List of Cases cited:

1. Amit Kapoor Vs Ramesh Chander & anr.,
(2012) 9 SCC 460, (Paras 12, 13, 20)

2. Hardeep Singh Vs St. of Punj.; (2014) 3 SCC
92, (Paras 105, 106, 117.3 to 117.5)

3.
S.
Mohammad
Ispahani
Vs
Yogendra
Chandak (2017) 16 SCC 226, (Para 35)

4. Rajesh Vs St. of Haryana (2019) 6 SCC 368

5. Yashodhan Singh & ors. Vs St. of U.P.& anr.;
(2023) 9 SCC 108, (Paras 22.6 to 22.8)