Bhaliya Jayantibhai Ravjibhai vs State Of Gujarat
2023 Latest Caselaw 2971 Guj

     R/CR.RA/398/2023                                       ORDER DATED: 18/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 398 of 2023

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                        BHALIYA JAYANTIBHAI RAVJIBHAI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR SHAIVAL M PATEL(9950) for the Applicant(s) No. 1
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 18/04/2023

                                  ORAL ORDER

1. Since the juvenile in conflict with law on

produced before the Juvenile Justice Board,

Vadodara in connection with FIR no.

11197059220396/2022 of Jarod Police Station,

Vadodara Rural for the offence under

Sections 143, 147, 148, 149, 302, 323,

506(2), 504, 34 of the IPC, his bail

application came to be rejected, against

that, he through his parents filed Criminal

Appeal before the Children's Court under

Section 12 of the Juvenile Justice (Care and

R/CR.RA/398/2023 ORDER DATED: 18/04/2023

Protection of Children) Act, 2015

(hereinafter referred to as "the Act"),

which came to be rejected and has filed the

Revision Application challenging the

propriety and legality of the order passed

by both the authorities. This Court had an

occasion to deal with the bail application

of a child in conflict with law and while

granting bail, this Court had an occasion to

deal with the provisions of Section 12 of

the Act and had explicitly laid down that

Section 439 of the Cr.P.C. would not be

applicable on the issue of grant or denial

of bail to a child alleged to have committed

bailable or non-bailable offence which is

dealt with by the special statute i.e.

Juvenile Justice (Care and Protection of

Children) Act, 2015, which contains specific

provision for bail under Section 12 of the

Act. In the case of Child in Conflict with

R/CR.RA/398/2023 ORDER DATED: 18/04/2023

Law Through Savitaben Vitthalbhai Vasava v.

State of Gujarat, 2022 (0) AIJEL-HC 244005

(passed in CRRA no.901 of 2021 on

28.04.2022), it has been observed as under:-

"15. Explanation to Section 15 of the JJ Act, 2015 stipulates that in case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequence of the offence and the circumstances in which he allegedly committed the offence and then may pass an order in accordance with the provisions of sub-section (3) of Section

18. Thus, the whole endeavour of the JJ Act, 2015 is to protect a child in conflict with law from the path of destruction and being a menace to the Society. The object is reformative and not retributive.

16. Now, under these circumstances upon preliminary assessment made by the JJ Board under Section 15(2) of the JJ Act, 2015 and when the need is found for the trial of the child as an adult and his case is ordered to be transferred to the Children's Court, the relevant consideration would be whether the child in conflict with law de-jure become an adult to be treated as a child in the subsequent proceedings and thus the

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question would be whether the application for bail would be maintainable in the High Court under Section 439 for the child in conflict with law, who is sent for trial before the Children's Court or whether the application for bail should be considered under Section 12 of the JJ Act.

17. Section 12 of the JJ Act, 2015 which deals with the grant of bail to a child expressly contains the nonobstante phrase to be as ".... 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 ...". This very provision in Section 12 clarifies that provisions of Cr.PC is excluded in the case of bail plea of the child. Further, it requires to be noted that Section 12 is a specific provision under the special statute that deals with the matter of bail and accordingly, the application of Section 439 of the Cr.PC is also necessarily excluded. Cr.PC contains a corresponding clause which is for application on special lines. Considering this aspect in case of a bail application on behalf a child, it would be required to be concluded that such bail plea would not be maintable under Section 439 of Cr.PC.

18. The order under Section 18(3) of the JJ Act transferring the trial of the case to the Children's Court would not declare the child as an adult. Child in conflict with law is defined under Section 2(13) of the JJ Act, 2015 to mean a child who

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has not completed 18 years as on date of the commission of the offence.

19. Non-applicability of Section 439 of Cr.PC in case of child in conflict with law has been appreciated by various High Courts. This Court would like to refer to the decision of the High Court of Delhi in the case of CCL 'A' v. State (NCT of Delhi) in Bail Application No.2510/2020 (dated 19.10.2020), where the Court had observed as under :-

"44. In formulating the above position, this court finds support in the view taken by the Division Bench of the Chhattisgarh High Court in Tejram Nagrachi Juvenile vs. State of Chhattisgarh Through the Station House Officer4, where the Division Bench has opined that an application for grant of bail under section 437 Cr.P.C. or 439 Cr.P.C. would not be maintainable in the case of a juvenile. The relevant paras of the judgment are as under:

"7. A conjoint analysis of the provisions contained in Sections 437 and 439 of the Code viz a viz Sections 8, 10 and 12 of the Act, 2015 would discern that while there are certain general guidelines under Sections 437 & 439 of the Code, power in respect of grant of bail to a juvenile is more liberal in the nature of command under Section 12(1) that whenever an apparent juvenile alleged to have

R/CR.RA/398/2023 ORDER DATED: 18/04/2023

committed a bailable or non- bailable offence is detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code 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 officer or under the care of any fit person. The only rider for not releasing the apparent juvenile is that whenever there appears reasonable grounds for believing that the release is likely to bring that person (Juvenile) into association with any known criminal or expose the said person to moral, physical or psychological danger or his release would defeat the ends of justice, the Board shall record the reasons for denying the bail and circumstances that led to such a decision. This rider as contained in proviso to Section 12(1) requires the Board to record reasons for denying the bail. It would mean that ordinarily the bail is to be allowed to a juvenile. The denial being exceptional on certain reasons to be recorded by the Board as provided in the proviso. This special provision is not contained under Section 439 of the Code.

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"8. .......... While there is no denial of the fact that when the Court of Sessions exercises appellate power under Section 101(2) and the High Court exercises revisional power under Section 102 of the Act of 2015, it shall exercise power of the Board provided under Section 8(2), but this power of the Board would also be available to the Court of Sessions or to the High Court when it proceeds to examine the plea of juvenile for grant of bail whenever such occasion arises on account of bail application of juvenile being rejected under Section 12 of the Act of 2015. Therefore, by use of the term "otherwise" in Section 8(2), jurisdiction under Section 439 of the Code would not be attracted which is otherwise excluded by use of the term "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force", as occurring in Section 12 (1)." (emphasis supplied)

20. The law therefore, is clear on the aspect that since Section 12 of the JJ Act bears a non-obstante clause which indicates legislative intent that the source of power to grant bail under the JJ Act, 2015 is independent from that of

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the Cr.PC. Thus, it can be said to be concluded that Section 439 of the Cr.PC is not applicable on the issue of grant or denial of bail to a child alleged to have committed bailable or non-bailable offence who is to be dealt with by the Special Statute, i.e. JJ Act, 2015 which contains the specific provision for bail under Section 12 of JJ Act, 2015."

2. Mr. Shaival Patel, learned advocate for the

applicant stated that J.J. Board as well as

the Children's Court have failed to take

into consideration the probation officer's

report which is to be perused while

considering the application under Section 12

of the Act. Mr. Patel submitted that in all

there are 6 juveniles and 5 have been

granted bail by this Court and further

stated that in the bail order of 5 juveniles

in conflict with law, this Court, after

perusing the probation officer's report, had

granted bail. Mr. Patel submitted that

probation officer's report would clarify the

fact that of the necessity of the present

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juvenile in conflict with law to keep with

him a knife. Mr. Patel stated that as per

the report, the juvenile was in romantic

relations with the niece of the deceased and

thus, the deceased was often threatening him

and was creating an atmosphere of fear. As

per the report, the applicant had

discontinued his relations with the niece of

the deceased. Still however, the deceased

was threatening him and therefore, for his

own safety, juvenile in conflict with law

was holding the knife. Mr. Patel submitted

that on the day when the incident took

place, there was a dispute between 2 class

of the village and all the 10 accused have

been alleged to have played specific role of

injuring the deceased and the allegation

against the present applicant is of giving a

knife blow on the chest and abdomen of the

deceased.

R/CR.RA/398/2023 ORDER DATED: 18/04/2023

3. Advocate Mr. Pathan who has been appointed

from Gujarat High Court Legal Service

Authority on behalf of the complainant

submitted that the very act of the juvenile

of inflicting the deceased the knife blow

suggest the criminal mind of the juvenile

and stated that if at all he is released on

bail, then he may continue with his illegal

activities and would create an atmosphere of

fear in the village and thus, stated that no

bail should be granted.

4. While learned APP submitted that the major

role of this juvenile is of inflicting the

knife blows which has taken the life of the

deceased and stated that if at all the

juvenile had any fear because of the

deceased, he could have reported the same

and the parents could have filed an FIR

against the deceased.

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5. As per the prosecution case, on 3.10.2022,

there was some quarrel during Garba festival

on 8th day of Navratri. It is stated that

there was scuffle between Omkumar

Jayantibhai Bhaliya, Kinjalbhai @ Kartik

Manubhai Bhaliya and Kushkumar @ Karan

Maheshbhai Bhaliya and it is alleged that

video on the mobile phone was on and they

were abusing and according to the

complainant, his son - Pradipbhai Bhaliya

had asked them not to abuse, but the quarrel

initiated and which led to scuffle and

according to the complainant, his nephew -

Arjunbhai Pareshbhai Bhaliya had slapped

Kinjal @ Kartik Bhaliya and had asked not to

quarrel so that festival does not get spoil

and according to the complainant, both the

sides had settled for compromise. On the

next day i.e. on 4.11.2022, at the time when

there was procession for immersion of Javara

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of the goddess and were proceeding towards

pond, they had come near Vahanvati goddess

temple. According to the complainant, he,

his nephew and his son were sitting on the

bench, at that time at about 10.00 a.m.,

about 10 of them suddenly came there and

started scuffle with his nephew - Arjun

Pareshbhai Bhaliya and it is alleged that at

that time, Kalpesh Chimanbhai Dodiya gave a

blow on the head of the nephew with the

steel bracelet and according to the

complainant before he could understand

anything, all the boys started pulling Arjun

Bhaliya and it is alleged that the juvenile

in conflict with law with knife in his hand

gave blow on the chest and abdomen of

Arjunbhai. It is alleged that Arjunbhai fell

down on the ground and again the juvenile

gave blow with the knife on the back of the

head and the said juvenile and others

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started abusing him, shouting that they are

not going to leave him and would kill him.

Further, the allegation is that all the

persons standing there started pulling

Arjunbhai and gave kick and fist blows to

him.

6. As per the social investigation report, the

juvenile in conflict with law is having

cordial relations with his family members.

There is no criminal history of the family.

After SSC, he had continued his education in

ITI. The mental and physical status of the

juvenile is proper and is staying in a joint

family. The family could not even believe of

the quarrel to have ended up in the murder.

It is stated that often there was dispute

with regard to occupying the place near the

temple in the village and the juvenile is

paying attention to his education and is

also regularly doing his work. The probation

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officer's report reflects that in village,

Bhaliya community has about 50 houses and

there are two groups in the said community

who are staying in the same neighbourhood

and there are often quarrels between the

group regarding the space at the temple and

the juvenile would often play his role in

those quarrels and according to the

investigating report, the juvenile was in

romantic relations with the niece of the

deceased and therefore, the deceased was

often threatening him and had created an

atmosphere of fear, as a result, he had

discontinued his relations with the niece.

However, owing to the fear, he was keeping a

knife for his safety and that fact was not

known to the parents and at the time of the

quarrel, he had used the same.

7. The facts suggest that the juvenile was

under the threat and fear of the deceased.

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It is the responsibility of the elders of

the village to see that cohabitant lives

peacefully and a juvenile cannot be made

victim for such internal dispute between the

community members. The other co-juveniles in

conflict with law have been granted bail by

this Court. The rehabilitation of the child

with the parents is advisable. Since the

present juvenile in conflict with law is

pursuing his studies and taking into

consideration the facts of the incident,

bail is granted.

8. In the result, the present application

succeeds and is allowed. Juvenile in

conflict with law is ordered to be released

on bail in connection with FIR no.

11197059220396/2022 of Jarod Police Station,

Vadodara Rural on the applicant's father

executing a personal bond in sum of

Rs.10,000/- each (Rupees ten thousand only)

R/CR.RA/398/2023 ORDER DATED: 18/04/2023

with surety of like amount before the

Children's Court.

9. It is directed that the Probation Officer

shall monitor the conduct of the juvenile in

conflict with law and shall quarterly submit

the report before the Children's Court till

completion of the trial. Moreover, if the

Probation Officer considers any necessity of

sending the juvenile for any behaviour

modification, then necessary therapy and

psychiatric support be provided to the

juvenile in conflict with law.

10. The parents of the juvenile to ensure that

the juvenile will pursue his academic

career. Direct service is permitted.

(GITA GOPI,J) Maulik