# X (Minor) & Anr. Revisionists v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 945
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-22
- **Case number:** Criminal Revision No. 1714 of 2022
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/x-minor-anr-revisionists-v-state-of-u-p-ors-47935
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Indian Penal Code, 1860 -
Section 228-A - Disclosure of identity of
the victim of certain offences , etc. ,
Section 363 - kidnapping , Section 366 -
Kidnapping ,abducting or inducing woman
to compel her marriage , etc. - The
Juvenile Justice (Care and Protection of
Children) Act, 2015 - section 37 - Orders
passed regarding a child in need of care
and protection - welfare and safety of
child in need of care and protection is the
legal responsibility of the Board/Child
Welfare Committee and the Magistrate/
946 INDIAN LAW REPORTS ALLAHABAD SERIES
Committee must give credence to her
wishes - a minor cannot be detained in
Government Protective Home against her
wishes - a minor has a right to keep her
person and even the parents cannot
compel the detention of a minor against
her will unless there is some other reason
for it - minor cannot be detained against
her will or at the will of her father in a
Protective Home. (Para - 14,15,17)

Order passed by Child Welfare Committee -
victim 'x' was directed to be kept in Rajkiya Bal
Grih (Balika) - second revisionist (mother of
victim) aggrieved by order - instant criminal
revision - for setting aside order - for handing
over the custody of 'X' to her - victim has
expressed her desire to go with her mother -
Mother of victim also willing to keep victim with
her. (Para -3,10)

HELD:-Court finds it appropriate in the interest
of justice to hand over the custody of the victim
to her mother after considering the statements
of victim and her mother. Impugned order
passed by Child Welfare Committee set aside.
Victim placed in the custody of her second
revisionist mother, who must provide her in
court whenever her personal appearance is
required. (Para -18,19,20)

Revision allowed. (E-7)

List of Cases cited:-

## Text

11 All. X (Minor) & Anr. Vs. State of U.P. & Ors.
945
dealt with in a contemptuous manner. In
succession to aforesaid observations, the
policy of the act must be brought into
focus. Very importantly it may be noted
that the scheme of the Act has a twin
approach, i.e., reformatory as well as
retributive to certain extent. When dealing
with bail grant or refusal thereof, the ends
of justice may compel the Court to strike a
balance between competing and often
conflicting demands of justice of both the
sides, i.e., the accused and the victim.
When viewing the case from this angle, the
nature of the crime, the methodology
adopted, the manner of commission and the
evidence available may assume ample
significance. Moreover, the aim and object
of this act, is to achieve not only the
welfare and betterment of a juvenile by
extending to him services of reformatory
nature, so that he can be brought back to
main stream of society as a person of
healthy mind, but also to address the
concerns of society at large at this stage.
This aim cannot be achieved unless a
holistic view of the matter is taken. In my
opinion, to give meaning to the phrase
''ends of justice', the matter of bail has to be
seen literally through a prism having three
angles, i.e., firstly, the angle of welfare and
betterment of the child itself, i.e., best
interest of the child, secondly, the demands
of justice to the victim and her family and
thirdly, the concerns of society at large.
And in the end, the court has to depend
upon its own robust sense of justice.

8. In this case, a girl of very tender
age of 6 years was put to violent sexual
assault by a boy of merely 15 years. She
was enticed in a well planned manner by
offering her sweets. The trauma and shock
caused to an innocent girl, who had no
understanding and inkling of the act with
which she had to go through and the
resentment which was caused to the
members of her family, can easily be
understood.

9. In view of the above, the present
criminal revision is dismissed. However,
the Juvenile Justice Board is directed to
expedite the hearing and conclude the same
at the earliest.

10. Copy of the order be certified to
the court concerned.
----------
(2022) 11 ILRA 945
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.07.2022

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Revision No. 1714 of 2022

X (Minor) & Anr. ...Revisionists
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionists:
Sri Jai Prakash Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Indian Penal Code, 1860 -
Section 228-A - Disclosure of identity of
the victim of certain offences , etc. ,
Section 363 - kidnapping , Section 366 -
Kidnapping ,abducting or inducing woman
to compel her marriage , etc. - The
Juvenile Justice (Care and Protection of
Children) Act, 2015 - section 37 - Orders
passed regarding a child in need of care
and protection - welfare and safety of
child in need of care and protection is the
legal responsibility of the Board/Child
Welfare Committee and the Magistrate/
946 INDIAN LAW REPORTS ALLAHABAD SERIES
Committee must give credence to her
wishes - a minor cannot be detained in
Government Protective Home against her
wishes - a minor has a right to keep her
person and even the parents cannot
compel the detention of a minor against
her will unless there is some other reason
for it - minor cannot be detained against
her will or at the will of her father in a
Protective Home. (Para - 14,15,17)

Order passed by Child Welfare Committee -
victim 'x' was directed to be kept in Rajkiya Bal
Grih (Balika) - second revisionist (mother of
victim) aggrieved by order - instant criminal
revision - for setting aside order - for handing
over the custody of 'X' to her - victim has
expressed her desire to go with her mother -
Mother of victim also willing to keep victim with
her. (Para -3,10)

HELD:-Court finds it appropriate in the interest
of justice to hand over the custody of the victim
to her mother after considering the statements
of victim and her mother. Impugned order
passed by Child Welfare Committee set aside.
Victim placed in the custody of her second
revisionist mother, who must provide her in
court whenever her personal appearance is
required. (Para -18,19,20)

Revision allowed. (E-7)

List of Cases cited:-

1. Ravi Shankar @ Baba Vishwakarma Vs St. of
M.P., (2019)9 SCC 689

2. Kalyani Chowdhary Vs St. of U.P., 1978
Cr.L.J. 1003

3. Pushpa Devi @ Rajwanti Vs St. of U.P.,
(1995)1 JIC 189

4. Raj Kumari Vs Superintendent, Women
Protection Home, Meerut & anr., 1998 Cr.L.J.
654

5. Seema Devi @ Simran Kaur Vs St. of H.P.,
1998 (2) Crimes 168

6. Km. Rachna & anr. Vs St. of U.P., AIR 2021
All 109 (FB)
(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. In view of the provisions of Section
228-A of Indian Penal Code and the
mandate of Hon'ble Supreme Court in the
case
of
Ravi
Shankar
alias Baba
Vishwakarma Vs. State of Madhya
Pradesh, (2019)9 SCC 689 the victim
herein after referred to as ''X'.

2. Heard learned counsel for the
revisionist and Shri S.K. Pal, learned
Government Advocate assisted by Shri
Anirudh
Sharma,
learned
Additional
Government Advocate representing the
State.

3. Being aggrieved and dissatisfied by
the order dated 24.1.2022 passed by the
Child
Welfare
Committee,
Kasganj
whereby the victim 'x' was directed to be
kept in Rajkiya Bal Grih (Balika), Swaroop
Nagar, Kanpur, the second revisionist, who
is the mother of the victim has approached
this Court by filing this criminal revision
for setting aside the aforesaid order and
also for handing over the custody of 'X' to
her.

4. The facts that formed the bedrock
of this revision are that on 27.11.2021,
second revisionist, who is the mother of 'X'
lodged the FIR under Sections 363 and 366
IPC in respect of missing of her daughter.
During investigation, victim was recovered
on
16.1.2022
from
Patiyali
Railway
Station, Kasganj and she was produced
before the Child Welfare Committee,
Kasganj where her statement was recorded
on 22.1.2022 in which she has expressed
her desire to go with her mother and also
refused for her medical examination, but
the Child Welfare Committee, Kasganj
vide impugned order dated 24.1.2022
11 All. X (Minor) & Anr. Vs. State of U.P. & Ors.
947
instead of giving the custody of the victim
''X' to her mother, has sent her to Rajkiya
Bal Grih (Balika), Swaroop Nagar, Kanpur.

5. Second revisionist has filed an
application
before
the
Child
Welfare
Committee, Kasganj stating therein that she is
the mother of the victim. The victim is minor
aged 15 years and she is unable to understand
her pros and cons and that she may be given
in her custody. During her counselling by the
Child Welfare Committee, Kasganj, the
victim has expressed her desire to go with her
mother.

6. However, the Child welfare
Committee,
Kasganj
vide
order
dated
24.1.2022 has directed the victim to be kept
in Rajkiya Bal Grih (Balika), Swaroop Nagar,
Kanpur on the ground that the mother of the
victim is living in Delhi to earn her livelihood
and the victim is living with her maternal
uncle and in the circumstances proper care of
the victim can be taken in her house.

7. Vide order dated 07.7.2022, second
revisionist was directed to appear before this
Court. Learned Additional Government
Advocate was also directed to ensure the
presence of revisionist ''X', the victim before
this Court.

8. Pursuant to the order of this Court
second revisionist is present before this
Court.

9. Victim 'X' has also been produced
before this Court by Head Constable 75
Vikas Yadav P.N.N 062910040 and Lady
Constable 20, Sapna Kumari P.N.N. No.
212911109
of
police
station
Patiyali,
Kasganj. Personal affidavit of Shri B.B.G.T
Murthy, presently posted as Superintendent
of Police, Kasganj has been filed, which is
taken on record.

10. On query by this Court, the victim
has expressed her desire to go with her
mother. Mother of the victim is also willing
to keep the victim with her.

11.

The
only
question
for
consideration before this Court is whether a
victim can be kept in a protective home
against her wishes.

12. This issue has time and again been
considered and settled by this Court in
catena of judgements.

13. In Kalyani Chowdhary Vs. State
of U.P., 1978 Cr.L.J. 1003, a Division
Bench of this Court has held that no person
can be kept in the protective home unless
she is required to be kept there either in
pursuance of the Suppression of Immoral
Traffic and Women and Girls Act, or under
some other law permitting her detention in
such a home. It is admitted that the case
does not fall under this Act, no other law
has been referred to. In such cases, the
question of minority is irrelevant as even a
minor cannot be detained against her will
or at the will of her father in a Protective
Home.

14. In Pushpa Devi alias Rajwanti
Vs. State of U.P. (1995)1 JIC 189, this
Court has held that in any event, the
question of age is not very material in the
petition of the nature of Habeas Corpus as
even a minor has a right to keep her person
and even the parents cannot compel the
detention of a minor against her will unless
there is some other reason for it.

15.

In
Raj
Kumari
Vs.
Superintendent,
Women
Protection
Home, Meerut and another, 1998 Cr.L.J.
654, a Division Bench of this Court after
considering series of judgement held that it
948 INDIAN LAW REPORTS ALLAHABAD SERIES
is well settled view of this Court that even a
minor cannot be detained in Government
Protective Home against her wishes.

16. In Seema Devi alias Simran
Kaur Vs. State of Himachal Pradesh,
1998 (2) Crimes 168, the Himachal Pradesh
has held as under:

"There is no provision of law,
which permits a Court to give such a
direction even in a case of minors when it
is against their will. Even if the petitioner is
only a minor aged about 15 years, her
wishes should be ascertained before
placing her in the custody of any person or
institution.
In
this
case,
she
had
categorically stated before the additional
chief judicial magistrate that she would not
live with her parents and she wanted to live
with her husband the 1st accused in the
case.
The
additional
chief
judicial
magistrate should have given credence to
her wish and only directed her custody to
be with the 1st accused and not with the
Nari Niketan."

A Division Bench of this Court
after considering the provisions of the
Juvenile Justice (Care and Protection of
Children) Act, 2015 as well as the law laid
down by various Court has referred the
following question to Hon'ble the Chief
Justice for being decided by the Larger
Bench of this Court:

"(1) xxxxxxxxxxxxxx

(2) xxxxxxxxxxxx

(3) Under the Scheme of the
Juvenile Justice (Care and Protection of
Children) Act, 2015, the welfare and
safety of child in need of care and
protection is the legal responsibility of the
Board/Child Welfare Committee and as
such, the proposition that even a minor
cannot be sent to Women Protection
Home/Nari Niketan/Juvenile Home/Child
Care Home against his/her wishes, is
legally valid or it requires a modified
approach in consonance with the object of
the Act ?"

17. The Larger Bench of this Court in
the case of Km. Rachna and another Vs.
State of U.P., AIR 2021 All 109 (FB) after
considering plethora of judgements of this
Court as well as other High Court, has
answered the question in the following
words:

"Under the J.J. Act, the welfare
and safety of child in need of care and
protection is the legal responsibility of
the Board/Child Welfare Committee and
the Magistrate/ Committee must give
credence to her wishes. As per Section 37
of the J.J. Act 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 submitted by Child Welfare
Officer 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 orders mentioned in
Section 37 (1) (a) to (h).

18. In view of the verbose discussion
as well as considering the statements made
by the victim and her mother, this Court
feels it appropriate in the interest of justice
to hand over the custody of the victim to
her mother.

19. Accordingly, impugned order
dated 24.1.2022 passed by the Child
Welfare Committee, Kasganj is hereby set
aside. The revision is allowed.

20. The victim is given in the custody
of her mother (second revisionist) with the
11 All. Ahamad Ali & Anr. Vs. State of U.P. & Anr.
949
condition
that
whenever
personal
appearance of the victim is required before
the court concerned in case No. 307 of
2021, under Section 363, 366 IPC, police
station Patiyali, district Kasganj, she shall
produce her in court.
----------
(2022) 11 ILRA 949
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Revision No. 2622 of 2022

Ahamad Ali & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Sunil Kumar

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Section 319 - Power to
proceed against other persons appearing
to be guilty of offence, Indian Penal
Code, 1860 - Section 302, 506 , The
Juvenile Justice (Care and Protection)
Act, 2015 - unamended Section 18 (new
section 23) - No joint proceedings of
child in conflict with law and person not
a child - juveniles in conflict with law
are to be tried and proceeded with by
the Juvenile Justice Board in accordance
with the provisions of the Act and the
other accused persons, who are not
juveniles, are to be tried by regular
court - Even Juvenile Justice Board in
exercise of the power conferred in
Section 319 Cr.P.C. for summoning the
additional accused may summon either
suo moto or an application filed by the
prosecution. (Para -22)
Application preferred by State under Section 319
Cr.P.C. - allowed by Juvenile Justice Board -
revisionists were summoned to stand trial -
revisionists at the time of alleged incident were
major - hence instant criminal revision -
question before Court - whether the Juvenile
Justice Board can use its powers under Section
319 of Cr.P.C. to summon the accused for trial.
(Para - 2,14,18)

HELD:- Power under Section 319 of the Cr.P.C.
can be exercised by the Juvenile Justice Board
and if the summoned accused is found to be not
a juvenile, his trial can be separated and such
person can be sent for trial to the regular court
of competent jurisdiction. No interference in
order passed by Juvenile Justice Board. Board
directed to proceed in accordance with law.
(Para -24,25)

Revision dismissed. (E-7)

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Sunil Kumar, learned
counsel for the revisionists, Sri Mithilesh
Kumar, learned AGA for the State and
perused the record.

2. Instant criminal revision has been
preferred against the impugned order dated
26.05.2022 passed by the Juvenile Justice
Board, Bulandshahar in Criminal Case No.
140 of 2015 (State vs Saleem @ Julla)
arising out of Case Crime No.819 of 2015,
under Section 302, 506 IPC, Police Station-
Khurza
Nagar,
District
Bulandshahar,
whereby the application preferred by the
State under Section 319 Cr.P.C. dated
28.10.2021 was allowed by the Juvenile
Justice Board, Bulandshahar and the
revisionists were summoned to stand trial
under Sections 302, 506 IPC.

3. Factual matrix of the case is that
first information report was lodged on
13.08.2015 in Case Crime No. 819 of 2015,