JUDGMENT : Sri Rahul Mishra, learned counsel for the revisionist, Sri Narendra Singh, learned counsel for the opposite party no.2 and learned A.G.A. for the State are present. Order on Criminal Misc. Amendment Application No. 5 of 2024 An amendment application has been filed on behalf of the revisionist seeking amendment in the prayer clause. The amendment application is allowed. Let necessary amendment be carried out during the course of the day. Order on Criminal Revision 1. This criminal revision by revisionist Ram Lakhan has been filed against O.P. No. 2 Sangeeta Devi and four others challenging the order dated 26.03.2022 by which the victim was directed to be kept in a child care institution and further the order dated 10.05.2022, by which the application for obtaining custody of the victim was rejected by C.W.C. By means of this revision a further prayer has been made by the revisionist to set aside the order dated 26.08.2022 passed by lower appellate court in Criminal appeal no. 32 of 2022 (Ram Lakhan Vs. State of U.P. and others) arising out of case crime no. 05 of 2022, under sections 363, 366, 376(3) I.P.C. and section ¾ of POCSO Act, by which the appeal filed challenging the order dated 10.05.2022, has been dismissed. 2. The facts relevant for the purpose of this revision are as below: (i) Sangeeta Devi lodged an F.I.R. naming Ram Lakhan (the instant revisionist) with the allegation that he enticed away his 14 years old daughter. The matter came under investigation and the victim got recovered. In her statement under section 161 Cr.P.C., she in essence stated that she has been in love relationship with Ram Lakhan since last two years and that her mother Sangeeta Devi arranged her marriage with Ram Lakhan but her father objected to such a marriage. In these circumstances she went to Pune with him and they were staying there as husband and wife. She stated her age as 15 years in the statement recorded on 20.03.2022 by the I.O. (ii) Her statement under section 164 Cr.P.C. was recorded three days after the statement recorded under section 161 Cr.P.C., in which she said that she is 18 year in age and that she voluntarily got married to Ram Lakhan and has been staying with him. She further said that she is his wife and is willing to stay with Ram Lakhan only and that she has pregnancy of two months. She also stated that false mark sheets have been prepared to show her below 18 years. (iii) As per the report of CMO, Fatehpur, she was about 19 years in medical opinion. (iv) by the impugned order dated 26.03.2022 passed by the C.W.C., she was directed to be kept in a women protection home at Khuldabad, Prayagraj. Revisionist- the alleged husband moved an application but the same was dismissed by C.W.C by another impugned order dated 10.05.2022. The order dated 10.05.2022 was challenged by Ram Lakhan by filing a criminal appeal no. 32 of 2022, which too has been dismissed. Now, the revisionist Ram Lakhan is before this Court in this criminal revision filed under section 102 of the J.J. Act, 2015 and has challenged all the three orders. 3. It is submitted by the revisionist that C.W.C completely ignored the medical certificate showing her as 19 years and instead illegally relied upon education paper of primary school, against the provisions of J.J. Act, 2015. Neither a matriculation nor education certificate or some school leaving certificate has been produced before the CWC. The victim categorically expressed her desire to go with her husband Ram Lakhan, as is very clear from the statement given by her under section 161 and 164 Cr.P.C. She is detained in a women home against her consent. He further submitted that she is above 18 years as per medical certificate and even if she is treated as minor at the time of entry in that institution, she has become adult now and should be set free. 4. Further important submission from the side of the revisionist is that she has given birth to a child and the child now requires special care, therefore, it is not at all appropriate to keep her along with her infant child detained in a women home. 5. O.P. No.2 Sangeeta Devi, who is admittedly real mother of the detenue has opposed the revision saying that the instant revisionist is an accused person in the criminal case and that her daughter is a minor; the C.W.C. and the appellate court committed no mistake in declining to release her in care and custody of the revisionist-the so called husband. 6. Several important issues arise in this case. 6. Several important issues arise in this case. First, whether a male or a female below 18 years can be detained in a child care institution even when he/she is unwilling to be lodged there. It may be noted that the J.J. Act, 2015 is a comprehensive act dealing with two types of juveniles. First category being of children in conflict with law and the other, the children in need of care and protection. It appears that the C.W.C. trated the victim girl as child in need of care and protection. The Act empowers CWC to pass suitable orders with regard to children in need of care and protection, however, the prerequisite for dealing a child/victim as such, is that it must precede with an inquiry, before it can be done 7. This Court in Ram Bahadur Singh Vs. State of U.P. and Another, in Criminal Revision No. 617 of 2024, observed in para 6 of the judgment as below: “6. The J.J. Act, 2015 is a comprehensive act dealing with two types of juveniles first those who are treated as “child in conflict with law”, secondly, those who are treated as “child in need of care and protection”. Certain things are noticeable viz.-: • Separate chapters deal with two types of children. The Chapter VI of the J.J. Act, 2015 has provisions which specifically apply to latter type i.e. “child in need of care and protection”. • When a child shall be treated as a ‘child in need of care and protection’ is provided in section 2 (14) of the Act which broadly provides that any child who has parents or guardian and such parents and guardian are found to be unfit to take care for and protect the safety and well being of a child or where a child does not have parents and no one is willing to take care of him/her, or where a child has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts, may also be treated as child in care of need and protection, besides children falling in several other categories. • The Child Welfare Committees have been constituted for children in need of care and protection under the Act. • The Child Welfare Committees have been constituted for children in need of care and protection under the Act. • Chapter VI of the J.J. Act, 2015 provides for procedure beginning from production of such child before such a committee and also provides for procedure to hold inquiry under section 36 of the J.J. Act, 2015 and the orders which may be passed with regard to such a child under section 37 of the J.J. Act, 2015. • Section 37 of the Act importantly provides that the committee, on being satisfied on the basis of inquiry held by it, declare that a child is in need of care and protection. • The committee has power to place the child in a Child Care Institution of the type as provided in section 37 of the J.J. Act, 2015 and it may also restore the child to parents or guardians or family with or without supervision of Child Welfare Officer. Further the Committee has power to restore the child in need of care and protection to his parents, guardian or fit person as the case may be, after determining suitability of the parents or guardian or fit person and give them suitable directions as provided in section 40 of the Act. • Another very important provision is under section 104 of the J.J. Act, 2015. Section 104 of the J.J. Act is as below: Section 104- Power of the Committee or the Board to amend its own orders. “(1) Without prejudice to the provisions for appeal and revision contained in this Act, the Committee or the Board may, on an application received in this behalf, amend any orders passed by itself, as to the institution to which a child is to be sent or as to the person under whose care or supervision a child is to be placed under this Act: Provided that during the course of hearing for amending any such orders, there shall be at least two members of the Board of which one shall be the Principal Magistrate and at least three members of the Committee and all persons concerned, or their authorised representatives, whose views shall be heard by the Committee or the Board, as the case may be, before the said orders are amended. (2) Clerical mistakes in orders passed by the Committee or the Board or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Committee or the Board, as the case may be, either on its own motion or on an application received in this behalf.” 8. In the same case the Court went on to discuss the provisions of section 104 of the J.J. Act, 2015 where 'committee' or 'board' has been empowered to amend its own order for good reasons. The Court further observed in para 7 and 8 as below: "7. This is quite significant to note that this provision gives very wide and ample powers to the committee to amend its own order, wherever required, for any good reason which, in my opinion, may include change in circumstances. Section 104 of the J.J. Act, 2015 prescribes a procedure before an order already passed can be amended. It says that “all persons concerned” or their authorised representatives shall be heard by the committee before such an order is amended. 8. A bare look on the relevant provisions of the J.J. Act, 2015, gives an impression that any detention in a protection home, of a child in need of care and protection is purely temporary in nature and rightly so. This fact should not be relegated to the background that the J.J. Act, 2015 has been enacted keeping in mind the general principles, as have been enumerated in Chapter II of the Act itself. The general principles include the principles of best interest, principle of family responsibility, principles of safety, principle of institutionalization, principle of repatriation and restoration. All the aforesaid principles are guiding factors for the Board as well as for the C.W.C. while implementing the provisions of this Act. These principles may act as a becon light while considering and deciding upon the matter of lodging a child, particularly a child in need of care and protection, in a juvenile home or when releasing her/ him in care or custody of any suitable person or a family member. These principles may act as a becon light while considering and deciding upon the matter of lodging a child, particularly a child in need of care and protection, in a juvenile home or when releasing her/ him in care or custody of any suitable person or a family member. In my opinion the committee is expected to take a reasoned decision, after due deliberations as regard where it would be best suited to lodge a “child in need of care and protection” in the facts and circumstances of a case and that where his best interest shall be served and therefore, which institution or which person/family member shall be in better position to take care of his well being. The C.W.C. may also review or revise its own order where circumstances prompt for such an action or where any new development takes place, compelling it to take a different stand/view. Such powers have been vested in C.W.C., notwithstanding the powers of appellate court or the revisional court. I hasten to add that this is not to say that appellate court or the revisional court can not exercise its powers wherever it can and ought to." 9. Under the Act ‘child’ means a person who has not completed 18 years of age. Definitely a person who has attained age of 18 years is excluded from being treated as child in need of care and protection. However, when a child in need of care and protection attains 18 years of age during her/his stay in child care institution he shall ordinarily be released forthwith however, some of the provisions of the Act may still apply. During my working a Judge, I observed that C.W.C is not passing appropriate orders in time where child in need of care has turned 18 during his/her stay in a juvenile home. Where a child has turned 18, he/she should be released immediately. Certain provisions contained in Model Rules, 2016 has relevance in such circumstances. A few of such provisions contained in Model Rules of 2016, are being reproduced here as below: “25. After Care of Children Leaving Institutional Care. Where a child has turned 18, he/she should be released immediately. Certain provisions contained in Model Rules, 2016 has relevance in such circumstances. A few of such provisions contained in Model Rules of 2016, are being reproduced here as below: “25. After Care of Children Leaving Institutional Care. - (1) [The State Government through the District Magistrate shall] prepare a programme for children who have to leave Child Care Institutions on attaining eighteen years of age by providing for their education, giving them employable skills and placement as well as providing them places for stay to facilitate their re-integration into the mainstream of society. (2) Any child who leaves a Child Care Institution may be provided after care till the age of twenty-one years on the order of the Committee or the Board or the Children's Court, as the case may be, as per Form 37 and in exceptional circumstances , for two more years on completing twenty-one years of age. [(2A) The District Magistrate may facilitate scholarships for higher education; loan for education or starting small business for children leaving the Child Care Institutions and convergence with the Government schemes or private entrepreneurs may be explored for the purpose. (2B) The District Magistrate may facilitate campus placements and apprenticeship assignments in collaboration with the local businesses and industry, subject to the condition that such business or industry or agency is found suitable for engaging with the children and prescribes to the Child Protection Policy as mandated under the Protection of Children from Sexual Offences Rules, 2020. (2C) The District Magistrate may maintain oversight on such arrangements with the help of the Police and other stakeholders to ensure that the interest of children are not compromised in any manner.] (3) The District Child Protection Unit shall prepare and maintain a list of organizations, institutions and individuals interested in providing after care as per their area of interest such as education, medical support, nutrition, vocational training etc. and the same shall be forwarded to the Board or the Committee and all Child Care Institutions for their record. 4. ………… 5…………. 6………………. 7. ………….” 10. Some relevant provisions as mentioned in Rule 79 and Rule 82A of the The Juvenile Justice (Care and Protection of Children) Model Rules, 2016 are as below: “79. Release of a child from a Child Care Institution. 4. ………… 5…………. 6………………. 7. ………….” 10. Some relevant provisions as mentioned in Rule 79 and Rule 82A of the The Juvenile Justice (Care and Protection of Children) Model Rules, 2016 are as below: “79. Release of a child from a Child Care Institution. - (1) The Person-in-charge of the Child Care Institution shall maintain a roster of the cases of children to be released on the expiry of the period of stay as ordered by the Board or the Committee or the Children's Court. (2) The timely information of the release of a child and of the exact date of release shall be given to the parent or guardian and the parent or guardian shall be called to the Child Care Institution to take charge of the child on that date and if necessary, the actual expenses of the parent's or guardian's journey both ways and of the child's journey from the Child Care Institution shall be paid to the parent or guardian by the Person-in-charge at the time of the release of the child. (3) If the parent or guardian, as the case may be, fails to come and take charge of the child on the appointed date, the child shall be taken by the escort of the Child Care Institution; and in case of a girl, she shall be escorted by a female escort who shall hand over the custody to her parent/guardian. (4) At the time of release or discharge, a child may be provided with a set of suitable clothing and essential toiletries. (5) When the child attains the age of eighteen years, he may be placed, if eligible, in an aftercare programme, subject to the consent of the child and the approval of the Board or the Committee or the Children's Court. (6) In case the date of release falls on a Sunday or a public holiday, the child may be discharged on the preceding day with an entry to that effect being made in the register of discharge. (7) The Person-in-charge of the Child Care Institution may in appropriate cases, order the payment of subsistence money, at such rates as may be fixed from time to time, by the State Government, and the railway and/or road fares, as the case may be. (7) The Person-in-charge of the Child Care Institution may in appropriate cases, order the payment of subsistence money, at such rates as may be fixed from time to time, by the State Government, and the railway and/or road fares, as the case may be. (8) Where a [****] child [under eighteen years of age] has no place to go after release and requests for stay in the Child Care Institution after the period of stay is over, the Person-in-charge may, subject to the approval of the Board or the Committee or the Children's Court, allow her stay only for a limited period till the time, some other suitable arrangement is made by her. [(9) Where a girl, above eighteen years of age, is released from the Child Care Institution and has no place to go, she shall be provided with accommodation in the Working Women Hostels, or other such government facilities, till the time some other suitable arrangement is made by her.] [82A. Restoration and Follow-up for children in conflict with law. - (1) The Board or the Children’s Court may make an order in Form 44 for the release of the child placed in a Child Care Institution after hearing the child and his parents or guardian, and after satisfying itself as to the identity of the persons claiming to be the parents or the guardian. (2) While passing an order for restoration of the child, the Board or the Children’s Court shall take into account the reports of the Probation Officer Worker or the designated officer of the District Child Protection Unit or nongovernmental organisation, including report of a home visit prepared on the direction of the Board or the Children’s Court in appropriate cases, and any other relevant document or report brought before the Board or the Children’s Court. (3) When a child expresses his unwillingness to be restored back to the family, the Board or the Children’s Court shall interact with the child to find out the reasons for the same and record the same and the child shall not be coerced or persuaded to go back to the family. (4) The child would also not be restored back to the family where the parents or guardians refuse to accept the child back and in all such cases, the Board or the Children’s Court shall provide alternative means for rehabilitation. (4) The child would also not be restored back to the family where the parents or guardians refuse to accept the child back and in all such cases, the Board or the Children’s Court shall provide alternative means for rehabilitation. (5) The child may not be restored back to the family where the social investigation report prepared by the Probation officer or designated officer of the District Child Protection Unit or the Child Welfare Officer or the nongovernmental organisation establishes that restoration to family may not be in the interest of the child. (6) The order of restoration shall include an individual care plan prepared by the Probation Officer or the designated officer of the District Child Protection Unit or the non-governmental organisation. (7) The Board or the Children’s Court, while directing restoration of the child, may pass order for an escort in Form 45, where necessary. (8) Besides police, the Board may seek collaboration with the District Child Protection Unit to accompany the child back to the family for restoration. (9) In case of girls, the child shall necessarily be accompanied by female escorts. (10) The copy of the restoration order along with a copy of the order for escort shall be forwarded by the Board or the Children’s Court to the District Child Protection Unit which shall provide funds for the restoration of the child, including travel and other incidental expenses. (11) A follow-up plan shall be prepared as part of the individual care plan by the Child Welfare Officer or the Case Worker or the social worker or the non-governmental organisation. (12) The follow-up report shall state the situation of the child post restoration and the measures necessary in order to reduce further vulnerability of the child. 11. This becomes apparent from bare reading of the above provisions that the child in need of care and protection have to be released from the child care institution on attaining 18 years age and this release is actually restoration of child to parents or guardians. Certain alternatives course of action have been given where such a ‘child’ is unwilling to go with parents or guardians. Certain alternatives course of action have been given where such a ‘child’ is unwilling to go with parents or guardians. In certain circumstances the child who has attained 18 years of age, may be provided after care till the age of 21 years and in certain circumstances for two more years i.e. till the age of 23 years on the orders of the Committee or the Board or the children court. The combined reading of the provisions of law gives a clear indication that the child in need of care and protection is to be released on attaining 18 years of age, however, the supervisory powers of the Committee or the Board or the Children Court may continue till he or she attains age of 21 or 23 years, to facilitate their reintegration into the mainstream and this plan may include providing for places for their stay. Though, such a provisions for stay is just to facilitate for their education and for giving them employable skills or with the purpose to reintegrate them and to sustain them and such a stay at some suitable place is definitely not in the nature of any kind of restraint. Thus, in suitable cases where child has been detained in a child care institution and is released on attaining 18 years of age, a post release plan may be prepared in advance as per the needs of a particular case. In suitable cases, such powers can put to good use by the Authorities concerned so that the objective of this Act is actually served. 12. As far as the facts of instant case are concerned, the victim has been detained in “a child care institution” without adopting the procedure as regard determination of age, and without declaring her a child in need of care and protection. 13. The Supreme Court in Jarnail Singh Vs. 12. As far as the facts of instant case are concerned, the victim has been detained in “a child care institution” without adopting the procedure as regard determination of age, and without declaring her a child in need of care and protection. 13. The Supreme Court in Jarnail Singh Vs. State of Haryana 2013 (7) SCC 263 , decided on 01.07.2013, in para 20 of its judgment referred to Rule 12 of J.J. Care and Protection of Children) Rules, 2007 and has observed with regard to the provisions of age determination contained in the J.J. Act, 2000 as below: (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above………………………...” The above principle of law as regard determination of age of a victim has concretised since then. 14. Other relevant facts are that she claims to be above 18 and that she has expressed her disinclination to go with her parents; further that Sangeeta Devi, mother of the child has, so far not applied for her release in her care and custody. On the other had, alleged husband is claiming her release. All the contentious issues are still open and have not been dealt with properly, judiciously and in accordance with law by the Committee. 15. On the other had, alleged husband is claiming her release. All the contentious issues are still open and have not been dealt with properly, judiciously and in accordance with law by the Committee. 15. Further the settled law is that the age of the victim shall also be determined in the manner as provided for determination of age of a child in conflict with law but none of such procedure has been followed by the C.W.C. The C.W.C has passed the order in a cursory and casual manner. The appellate court too appears to have ignored the provisions of law and has passed the order without considering relevant provision of law applicable in such matters. 16. In view of the above this revision is allowed. The impugned orders dated 26.03.2022, 26.08.2022 and 10.05.2022 are hereby set aside. The matter is remanded back to C.W.C. to pass a fresh order, in accordance with law. 17. Let a copy of the order be sent to State Commission for Protection of Child Rights and all the C.W.C.s in the State.