Allahabad High Court
Victim Of Case Crime No.-54/2025, ... vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 11 September, 2025
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:55063-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
HABEAS CORPUS WRIT PETITION No. - 339 of 2025
Victim Of Case Crime No.-54/2025, P.S.-Kotwali Nagar, Distt. Bahraich Thru. Her Husband
.....Petitioner(s)
Versus
State Of U.P. Thru. Prin. Secy. Home Lko. And Others
.....Respondent(s)
Counsel for Petitioner(s)
:
Sandeep Singh
Counsel for Respondent(s)
:
G.A.
Court No. - 9
HON'BLE RAJESH SINGH CHAUHAN, J.
HON'BLE SYED QAMAR HASAN RIZVI, J.
1. Heard Sri Sandeep Singh, learned counsel for the petitioner, Sri G.D. Bhatt, learned Additional Government Advocate for the State respondent and perused the record.
2. In view of the proposed order being passed, notice to respondent No. 6 is hereby dispensed with.
3. This Habeas Corpus Writ Petition has been filed with the following main prayer:-
"(i) Issue a writ, order or direction in the nature of Habeas Corpus, commanding and directing the opposite party no. 5 to produce the detenue/petitioner before this Hon'ble Court and set her free forthwith."
4. The case of the petitioner is that the petitioner corpus married with one Ranjeet alias Ram Narayan against the will of her parents, as such, the respondent no. 6 lodged an FIR against Ranjeet alias Ram Narayan (husband of the corpus) alleging that he enticed her minor sister. During investigation, the corpus was recovered and taking into consideration her age as minor girl as per the educational document, she was sent to 'Balika Grih', District Gonda, vide order dated 04.07.2025 passed by 'Child Welfare Committee', Bahraich,. On being medically examined, she was found pregnant. Her alleged husband was taken into judicial custody and sent to jail, however, he has been granted bail by this Court vide Order dated 20.06.2024. The alleged husband of the petitioner challenged the aforesaid order dated 04.07.2025 by way of an appeal being Appeal No. 63 of 2025 under Section 101 of the Juvenile Justice Act, 2015 before the Court of Additional Sessions Judge/Special Judge (POCSO Act), Bahraich, which is still pending for consideration.
5. The fact of pendency of an appeal under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015, against the order dated 04.07.2025 before the Additional District & Sessions Judge/Special Judge (POCSO Act), Bahraich, having Appeal No. 63 of 2025 (Ranjeet alias Ram Narayan versus State of Uttar Pradesh) has not been denied by the learned counsel for the petitioner.
6. Sri G.D. Bhatt, learned A.G.A., on the basis of instructions received from Sub Inspector/Investigating Officer, Police Station Kotwali Nagar, Bahraich dated 10.09.2025, has stated that at present the petitioner corpus has been placed at 'Balika Grih', Gonda, under the judicial order of 'Child Welfare Committee', Bahraich. He further submitted that there is some contradiction in the age of the corpus. The copy of instructions is taken on record. The relevant part of the instructions is extracted herein below:-
"11. ?? ??????? ?? ??????? ??? ???? ????? ?? ?? ?????? ???? ?? ??????? ????? 04.4.2025 ?? ?? ??? ????? ?????? ?? ?????? ??????? ?? 29 ???? 4 ??? ??????? ???? ???? ??? ??? ??????? ?? ???? ??????? ???? ??? ?????? ????? ?????? ?? ????? ???????? ???? ???? ?????? ?????? ???? ??????? ?? ??? ???? ?? ???? ???? ?? ??? ?????? ????? ?????? ?????? ?????? ?? ?????? ? ???? ?????? ?? ????? ???? ??? ???? ??????? ???? ?????? ??? ?????? ???? ???? ???? ?? ?????? ???? ???? ?????? ?? ??? ?????? ???"
12. ?? ??????? ?? ??????? ??? ???? ????? ?? ?? ???? ???????? ?? ?????? ??? ?????? ????? ?????? ?????? ?????? ???? ?? ?????? ? ???? ?????? ?? ????? ??? ???? ??? ?????? ?? ?????? ??? ?????? ???? ??? ??? ???? ?????? ???? ???? ?????? ?? ??? ?????? ????
13. ?? ??????? ?? ??????? ??? ???? ????? ?? ?? ???? ???????? ?? ?????? ??? ?????? ????? ?????? ?????? ?????? ???? ?? ?????? ? ???? ?????? ?? ????? ??? ???? ??? ??????? ?? ?????? ??? ?????? ???? ??? ??? ??? ?????? ???? ???? ?????? ?? ??? ?????? ???
14. ?? ??????? ?? ??????? ??? ???? ????? ?? ?? ????????? ????? ?????? ?????? ???? ???????? ?? ?????? ?????? ???? ?? ?????? ? ???? ?????? ?? ????? ??? ???? ??? ??????? ?? ?????? ??? ?????? ???? ??? ??? ??? ?????? ???? ???? ?????? ?? ??? ?????? ???
15. ?? ??????? ?? ??????? ??? ???? ????? ?? ?? ?? ??????? ?? ??????? ??? ???? ????? ?? ?? ???? ?????? ?????? ???? ??? ???? ????? ???? ??? ????? ???? ?????????? ???? ????? ???? ?????? ?? ?????? ????? ?? ????????? ?????? ???? ?????? ?? ??? ???? ???? ?? ????? 15.05.2024 ?? ???????? ????? ?? ??? ?? ???? ?? ??????? ??? ???? ???? ????? ???? ?? ????? 28.03.2025 ?? ????????-54/2025 ???? 363 ????? ???? 1. ?? ?????? ????? ?????, 2. ???? ????? ?? ?????? 3. ?????? ????? ?? ?????? ???????? ???? ?????????? ???? ????? ???? ?????? ?? ?????? ???? ??????? ???? ???? ??????? ???????? ????? ?? ??? ????? ?? ??????? ???? ????? ??????? ?????? ??????? ?? ????????? ??????/?????? ???? ???? ?? ?????? 04.04.2025 ?? ????? ???? ??? ????? ????? ?? ?????? ?????? ???? ?????????? ???? ????? ???? ?????? ?? ??? ?? ????? ???? ???? ??????? ?? ???????? ???? ???? ??? ????? ????? ?? ?????? ?????? ???? ??????? ???? ????? ???? ?????? ????? ???? ?????? ?? ??? ???? ???? ?? ???? ????? ?? ???? ???? ?? ???????? ?? ??? ?? ???? ?? ??????? ???? ??? ????? ???? ?? ???????? ???? ???? ??? ????? ??????? ?? ???????? ?? ????? 04.04.2025 ?? ??????? ???????? ??? ???? ???? ??????? ?? ???????? ???????? ?? ?????? ?? ???? ?? ??? ?????? ?? ???? 11 ???? 9 ??? 07 ??? ?? ???? ???? ???? ????????? ?????? ???? ???? ?? ???? ?????? ???? 183 ???????? ??? ????????? ?? ????? ???????? ?? ????? ????? ???? ??? ???? ?????? ?? ???? ?????? ??? ???? ???? ??? ?????? ????? ?????? ?? ????? ???????? ???? ???? ??? ?????? ????? ?? ????????????? ?????? ???? ???? ?? ?????? ??? ?????? ???? ???? ?????? ?????? ???? ????? ??????? ?????? ??? ?????? 25.5.2025 ?? ?? ?????? ???? ?? ???? ???? ??? ??? ?????? ??????? ??? ???? ???? ?????? ?? ??? ?????? ??? ?????? ??? ?????? ????"
7. We have heard the submissions of the parties present before the Court and perused the available material. Before entering into the merits of the case, it would be apt to consider the issue of maintainability of the instant Writ of Habeas Corpus in the instant case.
8. At this stage it would be appropriate to go through the observations made by the Constitution Bench of Hon'ble Supreme Court regarding the Writ of Habeas Corpus, in the case of Kanu Sanyal versus District Magistrate, Darjeeling and Others; reported in (1973) 2 SCC 674. The relevant part of the same is extracted herein below:
"It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the Court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, "in order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restraint". The form of the writ employed is "We command you that you have in the King's Bench Division of our High Court of Justice -- immediately after the receipt of this our writ, the body of A.B. being taken and detained under your custody -- together with the day and cause of his being taken and detained -- to undergo and receive all and singular such matters and things as our court shall then and there consider of concerning him in this behalf". The italicized words show that the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy Patna High Court CR. WJC No.1355 of 2019 dt. 05-03-2020 for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C., in Cox v. Hakes (supra), "the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom" and his release, if the detention is found to be unlawful. That is the primary purpose of the writ; that is its substance and end. ..."
9. The Full Bench of this Court, in the case of Rachna and another versus State of U.P. and others; reported in AIR 2021 All 109 (FB) very categorically observed that writ of habeas corpus would not be maintainable, if the detention in custody is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction or by the 'Child Welfare Committee'. Suffice to indicate that even an illegal or irregular exercise of jurisdiction by the Magistrate passing an order of remand or by the 'Child Welfare Committee' under Juvenile Justice Act cannot be said to be an illegal detention. The grievance, if any, against such an order may be redressed by way of challenging the legality, validity and correctness of the order by filing an appropriate proceeding before the competent appellate or revisional forum under the applicable provisions of law but the same cannot be reviewed in a petition seeking writ of habeas corpus.
10. The Full Bench of this Court in the case of Rachna (Supra) , while deciding a reference made by a Division Bench considering various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the law laid down by various Courts; has answered as under:
"We accordingly come on our conclusions in respect of question nos. 1, 2 and 3 for determination as follows: -
Question No. 1: "Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?"
Answer: "If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus."
Question No. 2: "Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?"
Answer: "An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated an illegal detention."
Question No. 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 ?"
Answer: "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)."
11. Recently, Hon'ble The Supreme Court in the case of Nirmala versus Kulwant Singh and others; reported in (2024) 10 SCC 595, has been pleased to hold that the habeas corpus is a prerogative writ which is an extraordinary remedy and recourse to such a remedy should not be permitted unless the ordinary remedy provided by the law is either not available or is ineffective. It has also been held by the Hon'ble Supreme Court that in child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor is by a person who is not entitled to his legal custody. It has further been held that in child custody matters, the writ of habeas corpus is maintainable only where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.
12. The Juvenile Justice Act, 2015 provides a complete mechanism dealing with welfare of the child. The 'Child Welfare Committee' exercises the power of Magistrate in view of the provision of Section 27 of the Juvenile Justice Act, 2015 and for all purposes, the Committee acts like the Magistrate. Once the order has been passed by the Magistrate, then it can only be assailed before the appropriate Court by filing an appeal or any other remedy as provided under the law.
13. Section 2(12) of the Juvenile Justice Act, 2015 provides that if the corpus is found a child, he/she would fall in the category of 'child in need of care and protection' in view of Clauses (iii), (viii) and (xii) of Sub-section (14) of Section 2 of the Juvenile Justice Act, 2015. Hence the order passed by the 'Child Welfare Committee' placing the corpus in a protection home would be within its power conferred under Section 37 of the Juvenile Justice Act, 2015. Thus, the person aggrieved by an order passed by the Child Welfare Committee can file an appeal under Section 101 of the Juvenile Justice Act, 2015. Therefore, in such a situation, it cannot be presumed that in case the corpus is in Children's Home pursuant to an order passed by the 'Child Welfare Committee'; then the same is neither without jurisdiction nor illegal or perverse, keeping in mind the provisions of Juvenile Justice Act, 2015, the detention of the corpus cannot be said to be illegal and in case the petitioner is aggrieved by the order of the 'Child Welfare Committee', the petitioner is at liberty to take recourse of remedy of Appeal or Revision provided under Sections 101 & 102 of the Juvenile Justice Act.
14. Taking into consideration the aforesaid factual matrix and the settled law on the subject, more particularly, when it is an admitted case of the petitioner corpus that an appeal under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015, has already been filed before the Court of Additional Sessions Judge/Special Judge (POCSO Act), Bahraich, more particularly when the same has been entertained by the Court concerned on 10.07.2025, this Court is of the considered opinion that the writ of Habeas Corpus is not entertainable and it is accordingly dismissed.
15. Before parting with the case, on an earnest request made by the learned counsel appearing on behalf of the petitioner corpus, we observe that the case bearing Appeal No. 63 of 2025 under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015, pending before the Court of Additional Sessions Judge/Special Judge (POCSO Act), Bahraich, be decided expeditiously, strictly in accordance with law.
(Syed Qamar Hasan Rizvi,J.) (Rajesh Singh Chauhan,J.)
September 11, 2025
Arun
