Rehan Parvezbhai Kureshi Thro ... vs State Of Gujarat
2023 Latest Caselaw 5543 Guj

                                                                             NEUTRAL CITATION




      R/CR.RA/973/2023                        ORDER DATED: 02/08/2023

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     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL REVISION APPLICATION NO. 973 of 2023

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  REHAN PARVEZBHAI KURESHI THRO TAJMOHAMMAD
                         KURESHI
                           Versus
                 STATE OF GUJARAT
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Appearance:
A S TIMBALIA(7372) for the Applicant(s) No. 1
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                          Date : 02/08/2023

                          ORAL ORDER

1. This revision application has been filed by the juvenile in

conflict with law under Section 102 of the Juvenile Justice (Care &

Protection of Children) Act, 2015 (JJ Act) challenging the order

dated 28.06.2023 passed by the learned Principal Magistrate,

Juvenile Justice Board, Junagadh (JJ Board) in Criminal Misc.

Application No. 630 of 2023 and the order dated 24.07.2023 passed

by the learned 3rd Additional Sessions Judge, Junagadh (Children's

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Court) in Criminal Appeal No. 41 of 2023, whereby, the bail

applications of the juvenile in conflict with law came to be rejected.

The FIR being C.R. No. 11203023230610 of 2023 was registered on

17.06.2023 with 'A' Division Police Station, Junagadh for the

offences punishable under Sections 302, 307, 326, 324, 323, 332,

333, 353, 143, 144, 145, 147, 149, 151, 152, 341, 427, 435, 440, 34,

120-B of the Indian Penal Code, 1860 (IPC), Sections 3 and 4 of the

Prevention of Damage to Public Properties Act, 1984 and Section

135 of the Gujarat Police Act against 31 accused persons.

2. Learned advocate Mr. A. S. Timbalia for the juvenile in

conflict with law submitted that this application is filed by the

juvenile in conflict with law through his father. That, on

16.06.2023, the incident had occurred at Junagadh city where,

demolition of religious place was in process and mob had gathered

there to protect the place and in the result, conflict took place

between the police and the mob and because of some stone pelting,

one person died and thereafter, the FIR came to be registered. Mr.

Timbalia submitted that the role, which has been attributed to the

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applicant - juvenile in conflict with law is of his presence at the time

of incident, which could be gathered as the juvenile had recorded the

whole incident in his mobile where, Mr. Timbalia stated that

actually, he had gone to a market place for purchase of food for

dinner for the family and on the road, when he saw the incident, he,

out of his childlike inquisitiveness, recorded the incident and the

police having found the video in his mobile has arraigned him in the

crime. Mr. Timbalia further stated that the very act of recording the

incident itself suggest that he would not have been the party to the

crime.

2.1 Referring to the Social Investigation Report (SIR), Mr.

Timbalia stated that the report also suggests the said fact which

discloses that the present juvenile along with his friend, had gone to

the place where there were about more than 250 people; the crowd

had gathered and away from the Dargah, he was recording the

incident in his mobile to prepare a video and thereafter, he had gone

away from the place. The child has accepted that there was some

stone pelting at the place of incident.

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3. Ms. Jirga Jhaveri, learned Additional Public Prosecutor for the

respondent - State submitted that the learned JJ Board has

considered SIR and has found that the juvenile in conflict with law

has created interference in the police duty and has committed the

offence of throwing stones and thus, stated that discretion should not

be exercised in favour of the juvenile.

4. The juvenile is aged about 16 years and 5 months. Any order

passed under Section 15 of the JJ Act, is not depicted in the order of

the learned Courts below.

4.1 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 CrPC 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

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Section 12 of the Act. In the case of Child in Conflict with Law

Through Savitaben Vitthalbhai Vasava v. State of Gujarat, 2022

(0) AIJEL-HC 244005 (passed in Cr.RA 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 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

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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 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:

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"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 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.

"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

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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 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."

4.2 The Psychological Report dated 10.07.2023, which is in the

SIR, records that the juvenile does not know how to deal with his

emotional anxiety etc. As per the finding, the juvenile feels that he

is no getting success in any field and that he is not studying well and

since he is not earning, his parents are not happy with him. The

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Report says that he may have mild depression. In column No. 42 of

SIR, the short summary of involvement of juvenile has been

recorded and according to the report, at about 8:30 p.m. he had gone

with his friend and thereafter, had gone to the place of incident

where, he saw about 250 people. He was in the crowd but he had

recorded the incident in the phone standing away from Dargah and

thereafter, he had gone back. The report does not state that he was

involved in any stone pelting or that the deceased was injured by any

of the act of the present juvenile. Recording of the incident, per se,

is not a crime.

4.3 The psychological background of the child is required to be

taken into consideration while dealing with the application under

Section 12 of the JJ Act. The Behavioural Observations of the

Psychologist show that the juvenile was attentive and alert. He was

cooperative and adequately motivated to perform. He could easily

comprehend the test instructions and his rapport was adequate for

the purpose of the test. The Test Findings show that he falls short of

average range of 20-45 responses which indicates under-productivity

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of responses owing to lowered mental output especially the ability of

integration. He lacks responsiveness to condition of strong

environmental impact and is not able adjust with his emotions while

his interpersonal relations are not good and he feels that others hurt

him. Thus, the report does not suggest that the child is having the

understanding about the consequences of the act.

4.4 Section 12 of the JJ Act mandates that the juvenile, in a

bailable or non-bailable offence, is arrested or detained or appears or

brought before the Court, has to be released on bail with or without

surety or place under the supervision of the Probation Officer or

under the care of any fit institution of fit person but shall not be so

released if there appear reasonable grounds for believing that the

release is likely to bring him into association with any known

criminal or expose him to moral, physical or psychological danger or

that his release would defeat the ends of justice.

4.5 The JJ Board as well as the Children's Court were required to

deal with this aspect. While JJ Board referring to the provisions of

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Section 12 and having considered the violence in the incident and

the antisocial elements attached in the violence, the Children's Court

assumed that there are all possibilities that the juvenile may be

drawn to such ways of illegal activities and the Children's Court

found that counselling was necessary and had approved of the order

of the JJ Board, keeping in mind the family situation of the juvenile

and on that ground, bail application came to be rejected. The JJ

Board had rejected the application observing that the juvenile

requires counseling for his mental development and therefore,

deemed fit to keep the juvenile in the Juvenile Observation Home at

Rajkot rather than handing him to the parents.

4.6 Both the Courts below had failed to appreciate the object of

the provisions of Section 12 of the JJ Act. The rejection of the bail

could be only on the ground if there is any likelihood of the juvenile

being associated with known criminals or he would get exposed to

moral, physical or psychological danger or when his release would

defeat the ends of justice. While, here, learned Courts below

rejected the bail applications on the ground that the juvenile requires

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proper counseling and therefore, observing that he should be sent to

Juvenile Observation Home, rejected the bail applications.

4.7 Further, the learned Children's Court had gone into the details

of FIR, which had shown that the crowd was of 500-550 people and

34 accused were arrested and the investigation still is not concluded

and therefore, found that the juvenile, if released, may come in

contact with unknown persons and some antisocial elements.

4.8 The orders of the learned Courts below do not reflect that any

order passed under Section 15 of the JJ Act. The order of the JJ

Board rejecting the bail is on the ground that the juvenile requires

special counseling. Such special counseling can even be ordered by

the JJ Board during the course of the trial, while handing over the

custody of the juvenile to the parents. This Court has not found any

ground to observe that the juvenile may come in association with

any known criminals or he may expose himself to any danger or his

release would effect the ends of justice. The incident of demolition

of the religious place, was by the crowd and there was dispute

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between the police and the mob. The juvenile incidentally happened

to be at the said place and he, out of curiosity, started recording the

incident. There is no allegation of any overt act by the juvenile, to

have injured any of the persons. The allegation of injury to the

deceased by the stone pelting is not attributed to the present

applicant.

4.9 In case of Barun Chandra Thakur v. Master Bholu And

Another, 2022 (0) AIJEL-SC 69520, the Hon'ble Apex Court while

considering the provisions of Sections 15 and 18 of the Juvenile

Justice (Care and Protection of Children) Act, 2015, has impressed

upon the language used in Section 15 "ability to understand

consequences of offence", and has laid down that the expression

used is in plurality i.e., "consequences" of offence therefore, would

not just be confined to immediate consequence offence or that

occurrence of offence would only have its consequence upon victim

but would also take within its ambit consequences which may fall

upon not only victim as result of offence, but also on family of

victim, on child, his family, and that too not only immediate

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consequences but also far reaching consequences in future. The

Board while considering the preliminary assessment has to obtain

the assistance of experienced psychologist and psycho-social worker

or other expert to assess the ability to understand the consequences

and also circumstances in which the alleged offence was committed.

4.10 The world acknowledges that children in conflict with law

should be treated differently than adults in conflict with law. The

reason is that the mind of the child has not attained maturity and it is

still developing. Therefore, the child should be tested on different

parameters and should be given an opportunity of being brought into

the main stream if, during his juvenility, has acted in conflict with

law. To understand psychology of the child, huge rounds of studies

have been made not only recently but from old times and child

psychology is a subject which is being studied world over and there

are institutes specifically dealing with the developments and

research on the said subject. The enactments dealing with children

are enacted world over.

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5. For the observations and discussion made herein above, the

present application succeeds and is accordingly, allowed. The orders

impugned in this revision of the JJ Boad and the Children's Court,

referred herein above, are set aside. The juvenile in conflict with

law is ordered to be released on bail in connection with the aforesaid

FIR on his father's executing a personal bond in sum of Rs.10,000/-

(Rupees ten thousand only) with surety of like amount before the JJ

Board.

5.1 The parents of the juvenile to ensure that the juvenile will

pursue his studies. The Probation Officer shall monitor the conduct

of the juvenile and if necessary, send the juvenile for any behaviour

modification providing psychological or psychiatric support during

trial.

5.2      Direct service is permitted.


                                                       [ Gita Gopi, J. ]
hiren
/PC-16