Patna High Court
Sitbiya DeviversusThe State of Bihar through the Principal Secretary, the Deptt. of Home, Govt. of Bihar,
- Decided
- Disposal
- ALLOWED
- Bench
- ARUN KUMAR JHA
Holding
A Judicial Magistrate cannot alter a final order under Section 403 of the Bharatiya Nyaya Sanhita; consequently, the order dated 27‑05‑2025 was set aside and the earlier order of 30‑04‑2025 restored.
Summary
The petitioner, Sitbiya Devi, sought a writ to release her daughter‑in‑law, Shweta Kumari, who had been placed in the custody of the Child Welfare Committee (CWC) after a Judicial Magistrate’s order on 27‑05‑2025. The magistrate had earlier, on 30‑04‑2025, allowed the girl, who claimed to be 19 and married, to return to her matrimonial home. The State argued the girl was a minor and required protection under the Juvenile Justice Act, justifying the CWC custody. The petitioner contended that the magistrate’s later order unlawfully altered a final order, violating Section 403 of the Bharatiya Nyaya Sanhita and principles of natural justice. The Court examined whether a magistrate can review a final order and whether the CWC custody was lawful without notice. It held that the 27‑05‑2025 order was illegal as a final order cannot be altered, set it aside, and restored the earlier order, directing any further determination of age to follow due process. The writ petition was allowed.
Issues considered
- Whether a Judicial Magistrate can alter or recall a final order under Section 403 of the Bharatiya Nyaya Sanhita.
- Whether the placement of the girl in CWC custody without notice violates principles of natural justice.
- Whether the girl is a minor requiring protection under the Juvenile Justice (Care and Protection of Children) Act.
- Whether the High Court has jurisdiction to entertain a writ petition challenging the magistrate’s order.
Legislation cited
- Indian Penal Code (IPC) — s. 366A
- Juvenile Justice (Care and Protection of Children) Act — s. 27(1), 36, 94
- Protection of Children from Sexual Offences Act (POCSO) — s. 4, 8
Subjects
- Child Welfare Committee
- Juvenile Justice Act
- Bharatiya Nyaya Sanhita
- Section 403
- Writ jurisdiction
- Minor protection
- Natural justice
- Review of orders
- Criminal Procedure Code
- Marriage age
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.2451 of 2025
In
Criminal Writ Jurisdiction Case No.1760 of 2025
Arising Out of PS. Case No.-55 Year-2025 Thana- PARWALPUR District- Nalanda
======================================================
Sitbiya Devi W/o Late Mohan Chouhan R/o vill - Mohinuddinpur, P.O. -
Pesaur, P.S.- Biharsharif, Distt.- Nalanda
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, the Deptt. of Home,
Govt. of Bihar, Patna
2. The Principal Secretary, The Deptt. of Home, Govt. of Bihar, Patna
3. The District Magistrate, Nalanda at Biharsharif Bihar
4. The Chairman, Child welfare Committee, Nalanda at Biharsharif Bihar
5. The Superintendent, child Welfare Committee, Nalanda at Biharsharif Bihar
6. The District Magistrate, Nawada Bihar
7. The Chairman, Child Welfare Committee, Nawada Bihar
8. The Superintendent, Child Welfare Committee, Nawada Bihar
9. The Station House Officer, Parwalpur Police Station, Distt.- Nalanda Bihar
10. The Investigating Officer, Parwalpur P.s. case no. 55/2025, Distt- Nalanda
Bihar
11. Rekha Devi W/o Sanjeev Prasad R/o vill - Fatehpur, P.S.- Parwalpur, Distt.-
Nalanda
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Niranjan Kumar, Adv.
Mr. Abhijeet Kumar, Adv.
For the State : Mr. Prabhu Narayan Sharma, AC to AG
For the Respondent no.11: Mr. Amrendra Kumar Singh No. 1, Adv.
Mr. Shilendra Kr. Singh, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 28-01-2026
The petitioner has filed the present writ seeking the
following reliefs:-
(I) For issuance of writ in the nature of
‘Certiorari’or any other appropriate writ for
release of the dughter-in-law of the petitioner
namely, Shweta Kumari forthwith, who has
illegally and erroneously been detained in the
Child Welfare Committee (C.W.C.), Biharsharif,
Nalanda since 27.05.2025 (now shifted to C.W.C.,
Nawada) by the order dated 27.05.2025 passed in
Parwalpur P.S. Case No. 55/2025 passed by the
Learned court of Sri Divyesh Kumar, J.M.-V 1st
Class, Hilsa, Nalanda by reviewing his own order
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dated 30.04.2025 having without authority of law
and the same is not permissible in the entire
provisions of B.N.S.S., 2023 and by quashing the
order dated 27.05.2025 passed in Parwalpur P.S.
Case No. 55/2025 by reviewing its own order
although the Hon'ble Supreme Court of India has
clarified in catena of judgements that there is no
provision in the Criminal Procedure Code, 1973
(now B.N.S.S., 2023) that empowers a Magistrate
to review or recall an order passed by him.
ii) For issuance of writ in the nature of mandamus
or any other appropriate writ for payment of
adequate compensation to the petitioner/victim
woman for illegal detention and also take punitive
action against the police authorities/personnel,
who are in connivance with private respondent
no.-11, in the interest of justice.
iii) For issuance of any other order or orders
which your Lordships may deem fit and proper in
the facts and circumstances of the case.
02. Briefly stated facts leading to the institution of the
present writ are one FIR was lodged by respondent no. 11
against the FIR named accused persons and others for forcibly
taking away of her minor daughter and Parwalpur P.S. Case No.
55 of 2025 has been registered under Section 96 of the
Bharatiya Nyaya Sanhita (in short ‘BNS’). Subsequently, the
victim girl was produced before the learned Judicial Magistrate
and her statement under Section 183 of the BNSS was recorded.
It appears the age of the victim was assessed to be 19 years and
she also disclosed her age to be 19 years before the learned
Judicial Magistrate. In her statement recorded under Section 183
BNSS she stated that her father and one friend of his father has
been pressurizing her to marry somewhere else whereas she has
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already solemnized marriage and on 06.04.2025 she reached her
matrimonial home and started living in her matrimonial home.
On coming to know about lodging of the present case, she
reached the police station. She further deposed that she was not
kidnapped and she also showed her willingness to return to her
matrimonial home. It further transpires that on 30.04.2025, the
learned Judicial Magistrate-V took note of the statement of the
victim girl recorded under Section 183 BNSS and made query
from the victim girl as to where she wanted to go. Before the
learned Judicial Magistrate, the victim girl stated that she
wanted to go to her matrimonial home with her mother-in-law
Sitbiya Devi, the petitioner herein. The petitioner was present
before the court and she was allowed to take the victim girl with
her to her house. It is pertinent to note here that the victim girl is
claimed to have solemnized marriage with the son of the
petitioner namely Vikash Kumar on 13.07.2024 and a certificate
to this effect has been issued by Vedic Samaj Kalyan Samiti,
Ghaziabad. Further the marriage has been registered on
15.07.2024 in accordance with Uttar Pradesh Marriage
Registration Rules, 2017. It also transpires that earlier the
mother of the victim girl had lodged Parwalpur P.S. Case No. 91
of 2024 on 17.06.2024 under Section 366A of the IPC and
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Section 4, 8 of the POCSO Act and the husband of the victim
girl was taken into custody. Subsequent to the order passed on
30.04.2025 allowing the victim girl to go to her matrimonial
home, an application has been filed by the mother of the victim
girl through the learned public prosecutor mentioning therein
that victim is minor and lodging of earlier Parwalpur PS. Case
No. 91 of 2024. Learned Judicial Magistrate-V taking note of
the application filed by the mother of the victim and going
through the education certificates found the victim girl to be
minor, and considering her safety and security, ordered her to be
kept in the custody of Child Welfare Committee, Bihar Sharif.
This order has been challenged before this Court.
03. Learned counsel for the petitioner submitted that
the impugned order is completely illegal as after passing the
order dated 30.04.2025, the learned Judicial Magistrate was not
competent to recall/review the said order and reviewing its order
is against the provision of Section 362 of CrPC/ 403 of the
BNSS. The Hon’ble Supreme Court, in a number of decisions,
has held that once the Court has passed the orders, it has got no
power to recall the said order. Therefore, order dated 27.05.2025
is bad in law and against the provisions of BNSS. The order
dated 27.05.2025 passed in Parwalpur P.S. Case No. 55 of 2025
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is in complete violation of principles laid down in a catena of
decisions by the Hon’ble Supreme Court.
04. Learned counsel further submitted that the age of
the victim girl was assessed to be 19 years by the learned
Judicial Magistrate. The medical board constituted under the
Chairmanship of Civil Surgeon/CMO Nalanda gave its opinion
that the age of victim girl was 18-19 years. The victim girl also
stated her age to be 19 years before the learned Judicial
Magistrate and showed her willingness to lead her life according
to her wishes. The victim girl is competent to take any decision
for herself being able to understand the consequences of her
acts. Therefore, her rights could not be curtailed on saying of
her mother or any of her family members. The victim has
categorically expressed her desire to go to her matrimonial
home and exercise her fundamental right of life and liberty and
freedom of movement and the said freedom has been curtailed
by the illegal order of the learned Judicial Magistrate. Learned
counsel further submits that the victim girl is pregnant and she
has been kept confined in the custody of the Child Welfare
Committee, Nalanda whereas the petitioner who is her mother-
in-law is ready to take her back to her home to take care of her
but due to orders of the Court, this piquant situation has arisen.
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05. Learned counsel also submitted that even though
judicial orders of Civil Court are not amenable to writ
jurisdiction under Article 226 of the Constitution, the manifest
illegality in the impugned order needs interference by this
Court. Such order could be considered and set aside by this
Court under writ jurisdiction. Such illegal orders should not be
allowed to remain on record. In this regard the learned counsel
referred to the decision of the Division Bench of this Court in
the case of Rikhab Chand Jain Vs. State of Bihar, 1979 PLJR
5. Learned counsel also referred to the case of Sweta Kumari
Vs. State of Bihar and Ors., Cr. WJC No. 253 of 2008 wherein
the Hon’ble Division Bench of this Court allowed the petitioner
to live with her husband and further allowed her to go with the
family members of her husband finding that petitioner was
major and intelligent enough to appreciate her future. Learned
counsel also referred to the case of Rahul Kr. Singh & Anr. Vs.
State of U.P. and Ors., 2015 SCC OnLine All 8557 in support
of his contention.
Learned counsel further submitted that the victim girl
is not an accused and she is not a victim as being alleged. She
has voluntarily left her house and solemnized marriage with the
son of the petitioner but instead of honouring her wishes, her
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life and liberty has been curtailed by a judicial order which is
illegal in itself. Therefore, after setting aside the impugned order
the victim girl be released and be allowed to go to her
matrimonial home.
06. Learned counsel appearing on behalf of the
informant, at the outset, submitted that the petitioner has no
locus. Her son Vikash Kumar is already married and is also
having a child. There is no question of reviewing or recalling its
order by the learned Judicial Magistrate as no determination of
age was made and the order dated 30.04.2025 was passed
considering the mere statement of the victim girl under Section
183 of the BNSS. But the victim girl is minor and her
educational certificate showed her date of birth to be 10.09.2010
and therefore, she is still a minor. It is the duty of the Court to
protect the child victim and pass orders for such protection
keeping in mind the interest of the child. Therefore, when the
documents were produced before the learned Judicial Magistrate
it went on to pass orders handing over the custody of the victim
to Child Welfare Committee as her parents were not present
before the Court.
07. Learned counsel appearing on behalf of the
State/respondents submitted that the victim in this case is a child
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in need of care and protection. Further Section 27(1) of the
Juvenile Justice (Care and Protection of Children) Act (in short
‘the JJ Act’) prescribes that the State Government shall
constitute for every district one or more Child Welfare
Committees for exercising the powers and to discharge the
duties conferred on such Committee in respect of children in
need of care and protection. Thereafter, Section 36 of the JJ Act
provides that on production of a child, the Committee shall hold
an inquiry and may pass an order to send the child to the
children home or shelter home or a fit facility or a fit person.
Further, it is the Child Welfare Committee which is competent
to determine the age of the child in need of care and protection
under Section 94 of the JJAct. Therefore, the order of learned
Judicial Magistrate allowing the victim girl to go to her
matrimonial home with the petitioner was only a temporary
order and no finality was attached to it as there was no
determination of age of the victim girl. Therefore, passing of
further order dated 27.05.2025 is not hit by Section 362 of the
CrPC/403 of the BNSS and the impugned order is perfectly
legal and does not need any interference by this court.
08. I have given my thoughtful consideration to the
rival submission of the parties.
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09. The issue before this Court is whether the learned
Judicial Magistrate-V, Nalanda was justified in passing the order
dated 27.05.2025 once he passed the order dated 30.04.2025 and
allowed the victim of Parwalpur P.S. Case No. 55 of 2025 to go
to her matrimonial home with her mother-in-law.
10. Section 403 of the BNSS (erstwhile Section 362
of the CrPC) provides as under:-
403. Court not to alter judgment.
Save as otherwise provided by this
Sanhita or by any other law for the time
being in force, no Court, when it has
signed its judgment or final order
disposing of a case, shall alter or review
the same except to correct a clerical or
arithmetical error.
11. So it is clear that once a Court has delivered a
judgment or passed a final order, it cannot subsequently alter or
recall this order by passing a subsequent order. It has been
vehemently contended on behalf of the respondents that no final
orders were passed by the learned Judicial Magistrate and the
learned Judicial Magistrate has rightly proceeded in the matter
and entrusted the custody of the victim to Child Welfare
Committee which in turn has kept her in shelter home.
12. But I am not convinced with such argument. Once
the learned Judicial Magistrate has taken a view that the victim
girl was major and solicited her wishes and she showed her
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desire to go with the petitioner to her matrimonial home, it was
a final order. The subsequent order does not show for a moment
that the previous order was passed temporarily or was a
transient order and final orders were yet to be passed. Therefore,
however erroneous might be the previous order, no Court is
allowed to alter or withdraw it in contravention of the provision
under Section 362 of the CrPC/Section 403 of the BNSS.
Hon’ble Supreme Court in the case of Mohammed Zakir Vs.
Shabana & Ors., 2018 (15) SCC 316 and in the case of
Rambali Sahni Vs. State of Bihar, SLP No. 357 of 2026
observed that Section 362 of the CrPC clearly mandates that
once the judgment or order is signed, no alteration or review of
the same is permissible except to correct a clerical or
arithmetical error.
13. There is another aspect of the matter. Once the
victim girl was held to be a minor and allowed to go to her
matrimonial home with the petitioner, overturning the said order
and allowing her custody, now to the Child Welfare Committee
without serving any notice to the victim girl or the petitioner is
against the principles of natural justice. If the Court was
inclined to pass orders against the petitioner or the victim girl, it
was duty bound to serve a notice to them and not serving such
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notice makes the order of the learned Judicial Magistrate bad in
the eyes of law and therefore unsustainable even on this ground.
Therefore, the impugned order is not sustainable due to manifest
illegality.
14. Having regard to the aforesaid discussion, and
considering the manifest illegality in the proceeding before the
learned trial court, I have no hesitation in interfering in the
matter under extraordinary jurisdiction of this Court to set aside
this wrong perpetrated by a judicial order. Therefore, the order
dated 27.05.2025 is set aside and order dated 30.04.2025 is
restored.
15. If the court concerned feels that there needs to be
proper adjudication with regard to determination of age, it can
pass appropriate orders but only after giving opportunity of
hearing to the victim.
16. Accordingly, the present writ petition stands
allowed.
(Arun Kumar Jha, J)
Anuradha/-
AFR/NAFR NAFR
CAV DATE 09.01.2026
Uploading Date 28.01.2026
Transmission Date 28.01.2026
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