JUDGMENT :

1. Heard Sri M.S. Chauhan, learned counsel for the petitioner and Sri Patanjali Mishra, learned A.G.A.-I, for respondent nos. 1 to 5.

2. This writ petition has been filed seeking the following reliefs:-

"(A) Issue a writ, order or direction in the nature of Habeas Corpus to set the corpus free at her liberty from illegal detention of respondent no. 5.

(B) issue a writ, order or direction in the nature of mandamus commanding the respondents to handover the custody of corpus to the petitioner."

3. This writ petition has been filed on behalf of petitioner (corpus) through Smt. Usha Devi mother of the accused Ravishankar Thakur against whom F.I.R. No. 0050 dated 25.04.2020 under Section 363/366 I.P.C. was lodged. During course of the investigation Section 176(3) I.P.C. and Section 5(j)(ii), and 5(1)/6 of the POCSO Act were also added. As per the statement of the corpus recorded on 07.08.2020 under Section 164 Cr.P.C. in which she had stated her age to be 16 years. As per F.I.R. version the age of the corpus is 15 years. The corpus was sent in the custody of Superintendent, Balika Grih Social Welfare Society, district Mau by order dated 31.7.2020 passed by Chairman, Child Welfare Committee. As per education certificate of the corpus, her date of birth is 20.05.2005. On 23.11.2020 the aforesaid order was challenged by the mother of the accused by filing an application before Incharge, CWC, Ballia praying for the custody of the corpus Tanya Pandey This application was rejected by the Chairman by order dated 28.11.2020 on the ground that the corpus Tanya Pandey is minor. The aforesaid rejection order dated 28.11.2020 has not been challenged by the petitioner in the present writ petition. However, a photostat copy of the order has been produced by the learned counsel for the petitioner before the Court, which is kept on record.

4. Learned counsel for the petitioner submits that corpus Tanya Pandey, has given birth to a child on 18.12.2020 and, that therefore, custody of the corpus is illegal and she may be set free at her liberty and her custody may be given to the mother of the accused. He further submits that the child has born after filing the writ petition, therefore, no averment in this regard could be made in the writ petition.

5. Learned A.G.A. submits that the corpus is a child below 16 years as her date of birth is 20.05.2005. In her own statement recorded under Section 164 Cr.P.C. the corpus has stated her age to be as 16 years. Therefore, there is no illegality in the impugned order to keep the corpus in Balika Grih Social Welfare Society, district Mau/ Bal Kalyan Samti, Mau. The mother of the accused has no right to ask for the custody of the corpus to her, particularly, when the accused is in jail. The order passed by the CWC is a judicial order, which has not been challenged in the present writ petition and even against the said order remedy of appeal lies under Section 101 of Juvenile Justice (Care and Protection of Children) Act, 2015.

6. We have carefully considered the submissions of the learned counsel for the parties and perused the record of the writ petition.

7. Section 94(2) of the Juvenile Justice (Care and Protection), 2015 (hereinafter referred to as ‘the J.J. Act”) provides for presumption and determination of age, as under:

“(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 an ossification test or any other latest medical age determination test conduc