Shubham @ Bablu Milind ... vs The State Of Maharashtra
2022 Latest Caselaw 11226 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION
                  BAIL APPLICATION NO.2282 OF 2021


Shubham     @                    Bablu       Milind   ..     Applicant
Suryavanshi
                       Versus
The State of Maharashtra                              ..     Respondent


                            ...
Ms.Sahana Manjesh for the Applicant.
Ms.A.A.Takalkar, A.P.P. for the State/Respondent.
PI Vijay Madage, attached to Borivali Police Station, present.
                                            ...

                          CORAM: BHARATI DANGRE, J.

DATED : 21st OCTOBER, 2022

P.C:-

1. Heard Advocate Ms.Sahana Manjesh for the applicant,

who is a juvenile in confict with law (CCL) and seeks his

release on bail in C.R.No.141 of 2020, registered with Boriwali

Police Station. The applicant is aged 17 years 11 months and 6

days and is one of the accused charged for committing murder.

He came to be arrested on 13/03/2020 and seeks his release

by taking beneft of the statutory provision in form of Section

12 of the Juvenile Justice (Care and Protection of Children)

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Act, 2015 (for short, "The J.J. Act").

2. Learned counsel for the applicant would vehemently

submit that the incident complained of, is alleged to have

taken place on 12/03/2020 and the applicant came to be

arrested on 13/03/2020, when he was a juvenile. On

completion of investigation, charge-sheet was fled under

Section 302 read with Section 34 of I.P.C. and the Juvenile

Justice Board (for short, "The JJB"), directed the applicant to

be tried as an adult. He preferred an application before the

Sessions Court at Dindoshi, who rejected his application on

wrongful consideration of Section 12 by holding that, since he

was tried to be an adult, he was not entitled to be released on

bail.

Learned counsel would place reliance upon the mental

health report of the applicant as well as the report of the CCL

from the Probation Department and also the preliminary

assessment report of the applicant.

Learned counsel would also place reliance upon various

authoritative pronouncements, including the decision of the

Delhi High Court in the case of the CCL 'A' Vs. State (NCT of

Delhi)1, the decision in case of the Re-A Juvenile Vs. State of

1 2021 Cri.L.J.1251

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Orissa2 and an order passed by this Court in Bail Application

No.3838 of 2021, to support her submission that the applicant,

being juvenile, is entitled for being extended the protection

under Section 12 of J.J.Act.

Per contra, learned A.P.P. would strongly oppose the

application and submit that the date of birth of the applicant is

06/04/2002 and on being arrested, he was produced before

the JJ Board, which directed to retain the applicant in the

Observation Home at Dongri. Inviting my attention to the

grave role attributed to the present applicant, learned A.P.P.

would submit that at the time of commission of offence, the

applicant was aged 17 years, 11 months and 24 days. She

would submit that in terms of Section 15 of J.J.Act, which

specifcally provide that in case the child is between 16 to 18

years and he has committed a heinous offence, then the JJ

Board may conduct a preliminary assessment in order to

assess the maturity level of the child, his mental and his

physical capacity to conduct such an act and it may take the

aid of experienced psychologists and psycho-social workers to

reach a conclusion, whether he is to be tried as a child or as an

adult. She would submit that in case the Board is of the

2 2009 Cri.L.J. 2002

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opinion that the child is not to be tried as an adult, it would

pass the order as per the guidelines issued under Section 18 of

the Act.

Learned A.P.P. would rely upon the said guidelines, which

are reproduced in the affdavit and read thus :-

"18. Procedure to be followed in respect of sections 21,22,23,24, 25 and 26 of the Act.-

(3) The offences against a juvenile in confict with law or a child specifed in sections 23, 24, 25 and 26 shall be either bailable or non bailable besides being cognizable under the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) and the procedures shall apply on the Police, the Board and the concerned authorities and functionaries accordingly."

The contention of the Applicant that he being a juvenile should compulsorily be released on bail and that he cannot be detained under any circumstances does not hold good and is not maintainable under the provisions of law. That proviso to sub-section (1) of Section 12 of the Juvenile Justice Act, 2015 mentions in clear terms that, "Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision."

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Learned A.P.P. would urge that Section 12 of the Act

cannot come to an aid of the applicant, as he is directed to be

tried as an adult by the Sessions Court and, therefore, no

affdavit can be derived.

3. With the able assistance of the respective counsel, I have

perused the material against the present applicant as compiled

in the charge-sheet. The prosecution case is, on 12/03/2020,

the applicant and the main accused, one Ajay Shinde

approached a group of three friends, who were chatting. It is

alleged that there was a old rivalry between accused Ajay

Shinde and these three friends. When the approached towards

the group of these three people, the applicant was allegedly

holding piece of broken glass in his hands, whereas accused

Ajay Shinde was holding a beer bottle. On sensing that the two

are approaching towards them, the three persons tried to fee

away from the spot, but the accused persons caught hold of one

of the three friends, namely, Vighnesh and stabbed the piece of

glass in his body, which resulted in bleeding injury. He was

taken to the hospital, where he was declared dead.

4. The main accused-Ajay Shinde surrendered himself

before Borivali Police Station and he named the present

applicant, who came to be formally arrested on 13/03/2020.

M.M.Salgaonkar





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As the applicant was a minor, he was remanded to Children's

Home in Dongri. The applicant was directed to be tried as an

adult and his case was committed to the Sessions Court,

Dindoshi (Children's Court), where the case is numbered as

Sessions Case No.425 of 2020.

5. It can be seen that the applicant preferred a bail

application and on 29/10/2020, the Principal Magistrate,

Suburban Juvenile Justice Board, recorded as under :-

"By preliminary assessment order dated 29/10/2020, this case is transferred for trial to Children's Court. Considering the heinous nature of offence and the fact that Children's Court will be trying the offence it will not be proper for the Board to decide bail application, so the bail application be put up before Children's Court."

The said order was passed, after examining the mental health

report received from Sir J.J.Group of Hospitals in respect of

the psychiatric evaluation of the juvenile as well as his

physical examination to ascertain the physical capacity. A

report from the Probation Department from Police Station

Boriwali was also forwarded to the JJ Board, where it is

recorded as under :-

"CCL Shubham has been staying in the Observation Home for more than 7 months. During his stay in the Home, on few occasions he had exchange of words with the staff of

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home as well as other inmates on discipline issues. Most of the time he found to be decent-well behaved, he actively participated in independence day cultural program, performed well the acts, noticed full of zest in the task various tasks allocated to him, showed leaderships skills. Daily attending physical training sessions. He is at present learning carpentry work, feedback from the Carpentry teacher is positive about Shubham. CCL Shubham regularly attended counselling sessions through video calls with the counselor.

Overall behaviour of the CCL Shubham noticed to be good."

6. The JJB on 29/10/2020, transferred the trial of the case

to the Children's Court having jurisdiction, by considering the

preliminary assessment report as well as the mental health

report placed before it and it recorded as under :-

"9. The Medical Superintendent, Sir J. J. Hospital has submitted medical certifcate wherein it is mentioned that, on physical examination of the said C.C.L., no abnormality noted which can prevent him to commit the offence registered against him.

10.Mental Health Report dated 27/07/2020 is also on record. The said report is as follows :

He understands seriousness of allegation against him and that it is against law. No perceptional abnormality. No delusions. Insight present. Judgment intact.

Impression : No active psychopathology at present and in the

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past.

Conclusion : No evidence of mental incapacity to commit the offence.

11. The sequence in which the events unfolded during the alleged incident reveal that C.C.L. and the major accused had predetermined to commit the crime, followed victim to the spot and left the scene only after causing deadly injuries to the victim. These circumstances and the Physical and Mental Health Report of C.C.L. necessitate that there is need for trial of the said child as an adult. So, the case shall have to be transferred for trial to the Children's Court."

On the application being preferred before the Sessions Court at

Dindoshi, it came to be rejected on 29/01/2021, by recording

as under :-

"5. As per the FIR, the applicant stabbed the deceased with a piece of bottle on his neck, resulting into his death. The offence is committed by the applicant with pre-meditation, as he approached the deceased with the piece of bottle, and thereafter, stabbed him. Considering the gravity of the crime, the applicant does not deserve to be enlarged on bail. Section 12 of the Juvenile Justice Act cannot come to an aid of the applicant, as he has to be tried as adult by this Court. Section 12 enables the Juvenile Justice Board to enlarge a juvenile on bail."

7. It can be seen that the application of the applicant has

been rejected on the ground that Section 12 of the Act cannot

come to his rescue, as he is directed to be tried as an adult and

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Section 12 enables the Juvenile Justice Board to enlarge a

juvenile on bail.

The question that arises for determination is, whether on

being tried as an adult, is the juvenile denuded of the statutory

right available to him under Section 12 of the Act.

8. The said question is no more res integra and has been

deliberated upon by several High Court, including the Bombay

High Court. Before I proceed to deal with the said decision, it

would be necessary to reproduce Section 12 of the Act, which

is a provision pertaining to the release of a child alleged to be

in confict with law and it reads thus :-

12. Bail to a person who is apparently a child alleged to be in confict with law. (1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation offcer or under the care of any ft person:

Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.

(2) When such person having been apprehended is not released on bail under sub-section (1) by the offcer-in-charge of the police station, such offcer shall cause the person to be kept only in an observation home '[or a place of safety, as the case

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may be,] in such manner as may be prescribed until the person can be brought before a Board.

(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specifed in the order.

(4) When a child in confict with law is unable to fulfll the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modifcation of the conditions of bail."

9. Reading of Section 12 makes it imperative to release the

applicant, who is alleged to have been committed bailable or

non-bailable offence and this power has to be exercised

notwithstanding anything contained in the Code of Criminal

Procedure, which expect a decision of release, taking into

account the provisions of Section 439 of Cr.P.C. It is not in

dispute that the applicant is a child at the time of commission

of offence and would fall within the meaning of 'child in confict

with law', as defned in the Act of 2015.

In the scheme of enactment, it can be seen that Section

12 contains an imperative mandate to release a child on bail,

when he is apprehended or detained in connection with an

offence and it is a special provision, which stand to the

exclusion of the Code of Criminal Procedure. Section 5 of the

Cr.P.C. contained a saving clause, which reads thus :

"5. Saving.- Nothing contained in this Code shall, in the

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absence of specifc provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred or any special form of procedure prescribed, by any other law for the time being in force."

The parameters for considering an application for bail fled by

a juvenile under Section 12 of the Act of 2015 are clearly

distinguishable from the application fled under Section 439 of

Cr.P.C. and after following the procedure as prescribed under

the Act i.e. from Sections 15 to 18 when a decision is taken to

try a juvenile as an adult, the issue that arises for

consideration is, upon such a contingency, whether the beneft

of Section 12 can be denied to him.

This precise question arose for consideration before the

High Court of Delhi in case of CCL 'A' (supra) and vide a details

judgment delivered by the learned Single Judge on October 19,

2020, the issue has been specifcally answered and on going

through the said law report, I cannot disagree, but express

concurrence with the view expressed by Justice Anup Jairam

Bhambani.

10. A similar issue was answered by the Delhi High Court in

CCL 'A' (supra), when a similar point arose for determination

and it was answered by recording that bail plea on behalf of a

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juvenile must always be considered on the criteria and

parameters set-out in Section 12 of the J.J.Act.

11. The precise questions that were framed by the learned

Judge of the Delhi High Court read as under :-

"(a) When upon a preliminary assessment made by the JJB under section 15(2) of the JJ Act, the JJB is of the opinion that there is need for trial of the child as an 'adult' and it transfers the trial to the Children's Court, does the child in confict with law de-jure become an 'adult', to be treated as such in all subsequent proceedings ?

(b) Whether an application for bail is maintainable before the High Court under section 439 Cr.P.C. for a child in confict with law, who is sent-up for trial as an adult before the Children's Court ?

On detailed analysis of the statutory scheme, the

questions were answered as under :-

"26. Clearly therefore, even when a child is sent-up for trial as an adult before a Children's Court, the child does not become an adult or 'major', but is only to be treated differently considering the heinous nature of the offence alleged and consequent need for a stricter treatment of the offender, though still as a juvenile in confict with law. It must be borne in mind that the Legislature has created this categorization based upon an assessment of the child's "mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence". If the intention of the Legislature was that upon such assessment, the child would de-jure become an adult, then the question of there being a

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separate Children's Court to try him with specifc safeguards provided for the trial would not arise. That however is not the case.

27. ... ... ...

28. With specifc reference to the application at hand, it bears mentioning that even though a child may be sent-up for trial before the Children's Court as an adult, there is no provision in the JJ Act that requires any departure from considering the matter of release of such child on bail under section 12. This court is supported in this view by the judgment of a Co-ordinate Bench of this court in A.C. v. State of NCT of Delhi Para 11. Is a child's bail plea maintainable before the High Court under section 439 Cr.P.C."

12. It is to be noted that the Juvenile Justice Act is a

benefcial piece of legislation and it must be construed by

taking into consideration the object behind it's enactment,

being to provide for the care, protection, treatment,

development and rehabilitation of neglected or delinquent

juveniles. It is a benefcial legislation aimed at making

available the beneft of the Act to the neglected or delinquent

juveniles.

While construing the provision contained in Section 12,

which contemplate that a juvenile shall be released on bail

notwithstanding anything contained in the Cr.P.C. and Section

12 further stipulates that he may be released with or without

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sureties, or may even place under the supervision of the

Probation Offcer or under the care of any ft person. The only

embargo in not releasing such a person on bail is the proviso,

which prescribes that if there appears reasonable grounds for

believing that the release is likely to bring that person into

association with any known criminal or expose the said person

to moral, physical or psychological danger or the person's

release would defeat the ends of justice.

None of the Court i.e. JJB or the Children's Court had

adverted to the said aspect of the matter. The Probation

Offcer, in his report has clearly recorded as under :-

"This is First time the CCL was involved in a criminal act. CCL Shubham clearly accepted his presence at site of offence, his active role in the offence. CCL also articulated vigorously that it was unintentional to cause any grievous hurt to the victim & the offence committed under infuence of narcotic substances. Trace of repentance is noticed & Shubham expressed the same.

CCL is regularly attending counselling sessions, he need to undergo more counseling sessions on regular basis to curb his anger consequences of addiction & realize the consequences of his act.

Father of the CCL is ready to take custody of the CCL, ensuring his wellbeing. Concrete Betterment plan from parent need to taken for progress & good behavior of the CCL.

Supervision on CCL is necessary, CCL Shubham can be directed to report Probation Offcer once a month to monitor his behavior and progress & suitable NGO can be directed to monitor CCL.

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Considering the interest of CCL further order can be passed."

13. The report of the Probation Offcer has also specifcally

recorded that the CCL has committed the offence under the

infuence of the drug and in the ft of anger and he had no

intention to kill the victim, but his intention is only to beat

him.

14. The applicant was taking education in standard 10th in

English medium. He was working in and around Pune, after

being dropped out of the school and earning some money for

himself. The Probation Offcer report also reveal that at

present, he is learning carpentry work and feedback from the

teacher is positive. He is also attending counselling sessions

through video calls. The remark of the Probation Offcer is,

"overall behavior of CCL Shubham noticed to be good".

15. In the aforesaid circumstances, when the Children's

Court has rejected his application, without adverting to the

said facts and also the statutory mandate of Section 12, is an

unfortunate part. Merely because, he is directed to be tried as

an adult, he cannot be denied the beneft of Section 12. I am

fortifed by the earlier view taken by this Court in the case of

Sandeep Ayodhya Prasad Rajak (Bail Application No.3838 of

2021 decided on 22/08/2022) and also in the case of Prasad

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Subhash Khade Vs. State of Maharashta (Bail Application

No.1647 of 2020 decided on 18/03/2021)

16. In any case, the J.J.Act focuses on a principle of

presumption of innocence and on the principle of best interest

as well as principle of repatriation and restoration, by virtue of

which, the applicant, who is a juvenile, has a right to be re-

united with his family at the earliest and to be restored to the

same socio-economic and cultural status that he was in, before

coming under the purview of this Act, unless such restoration

and repatriation is not in his best interest. The co-accused is

already undergoing incarceration and the father of the CCL is

ready to take his custody, ensuring his well being. In the wake

of the above circumstances, emerging from the facts and

circumstances of the case, I deem it appropriate to release him

on bail. Hence, the following order.

: ORDER :

   (a)           Application is allowed.

    (b)          Applicant       -Shubham     @      Bablu         Milind

Suryavanshi shall be released on bail in connection with

C.R.No.141 of 2020 registered with Boriwali Police

Sation on furnishing P.R. Bond to the extent of

Rs.25,000/- with one or two sureties in the like amount.

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The applicant shall be relesed on cash bail of

Rs.25,000/- for a period of six weeks. During the said

period, he shall arrange for the sureties.

(c) The applicant shall attend the trial on regular

basis.

(d) The applicant shall report to the Probation

Offcer once in every two months and his performance

and conduct shall be monitored by the Probation Offcer.

(e) The applicant shall not directly or indirectly

make any inducement, threat or promise to any person

acquainted with the facts of the case so as to dissuade

him from disclosing the facts to Court or any Police

Offcer. The applicant shall not tamper with evidence.

(f) On being released on bail, the applicant shall

furnish his contact number and residential address to

the Investigating Offcer and shall keep him updated, in

case there is any change.

( SMT. BHARATI DANGRE, J.)

M.M.Salgaonkar