Jasvantbhai Lallubhai Bhaliya ... vs State Of Gujarat
2023 Latest Caselaw 2120 Guj

     R/CR.RA/161/2023                                     ORDER DATED: 07/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 161 of 2023
                               With
          R/CRIMINAL REVISION APPLICATION NO. 162 of 2023
                               With
          R/CRIMINAL REVISION APPLICATION NO. 163 of 2023
                               With
          R/CRIMINAL REVISION APPLICATION NO. 164 of 2023
                               With
          R/CRIMINAL REVISION APPLICATION NO. 121 of 2023

==========================================================
     JASVANTBHAI LALLUBHAI BHALIYA (FATHER OF JUVENILE IN
                     CONFLICT WITH LAW)
                            Versus
                      STATE OF GUJARAT
==========================================================
Appearance:
ANAND R PATEL(7352) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, APP for the Respondent-State in CRRA 161/23,
162/23 & 163/23
MS SHRUTI PATHAK, APP for the Respondent-State in CRRA 164/23,
121/23
==========================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 07/03/2023

                                ORAL ORDER

1. Since all the juveniles in conflict with law

were 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,

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

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

application came to be rejected. Against

that, they through their parents filed

Criminal Appeal before the Children's Court

under Section 12 of the Juvenile Justice

(Care and Protection of Children) Act, 2015

(hereinafter referred to as "the Act"),

which came to be rejected and have filed

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

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

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

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

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

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 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

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

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:

"7. A conjoint analysis of the provisions contained in Sections 437 and 439 of the Code viz a viz Sections 8, 10

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

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

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

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 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

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

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."

2. The bail for the juvenile in conflict of law

who is also ordered to be tried in the

Children's Court as that of an adult in an

offence alleged to have been committed

heinous offence, both the authorities while

dealing with the bail application is

required to keep in mind the provision of

Section 12 of the Act. In all the matters,

J.J. Board and the Appellate Court has

referred to the Probation Officer's report.

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

3. In Criminal Revision Application no.121/23,

the report suggests that there is no

criminal history of the family members. The

child respects his elders who is studying in

Std.12 pursuing Arts faculty and according

to the child, he was not involved in the

incident and further, the Probation

Officer's report suggests that the child is

interested in studies.

3.1 While in Criminal Revision Application

no.161/23, the Probation Officer has

observed that there is no criminal history

of the family and the juvenile has good

relations with the family members. He has

completed his studies of Std.10. He was

present at the place of incident. However,

it has been noted by the officer that he had

gone to the place of incident by stating the

false facts before mother and he is not

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

under the control of his parents. However,

it is further observed that the child is

regular and cool minded and earlier, there

was no name of the child in the quarrel. He

has good relations with the deceased's

family and as per the Probation Officer, he

was there to see the quarrel.

3.2 In Criminal Revision Application no.162/23,

as observed by J.J. Board, the Probation

Officer's report suggests that the child

respects his elders and that he had not done

any such kind of offence, but the Probation

Officer has noted that as per the FIR, the

present applicant had caught hold of the

deceased.

3.3 In Criminal Revision Application no.163/23,

the Probation Officer's report suggest that

the child is staying with his parents and

younger sister. He is pursuing his education

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

in ITI after Std.10, but the Probation

Officer records that the parents of the

child had expressed no remorse for the

offence and as per the Probation Officer, it

would serve no purpose if the child is

rehabilitated with the parents since the

parents are not understanding the

grievousness of the offence.

3.4 In Criminal Revision Application no.164/23,

the child is staying with his parents and

grand parents and his younger sister. As per

the Probation Officer's report, the parents

have shown no repentance for the offence and

thus, according to him, it would not be

fruitful to rehabilitate the child with the

parents.

4. 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

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

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

of the goddess and were proceeding towards

pond, they had come near Vahanvati goddess

temple. According to the complainant, he,

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

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

started abusing him, shouting that they are

not going to leave him and would kill him.

Further, the allegation is that all the

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

persons standing there started pulling

Arjunbhai and gave kick and fist blows to

him.

5. Ms. Shruti Pathak, learned APP for the

respondent-State submits that the Probation

Officer's report itself reflects the fact

that the juvenile in conflict with law are

not under the discipline of the parents. The

atmosphere in the village between two

sections has worsen, which had created the

law and order situation and thus, submits

that if at all these juveniles are released

on bail, they may again create an atmosphere

of distress and fear, which may lead to

conflict and may result into further

criminal offence. Ms. Pathak submits that

the very intention of Section 12 is to

ensure that the children do not get expose

to such criminality and further their

physical and psychological status does not

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

get affected and thus, stated that the

releasing them on bail would perpetrate more

offence and hence, urged to reject the

application.

6. Ms. Akshitaba Solanki, learned advocate for

the complainant states that she has

instructions to appear in the matter. She

seeks permission to file the Vakalatnama for

the complainant in all the matters. She

states that release of the juveniles would

further create an atmosphere of fear in the

village and that the juveniles who have

participated in the crime had played active

role and thus, urged to reject the

applications.

7. The allegations against the present

applicants are that they were present at the

place of crime and further it is alleged

that they had participated in the quarrel

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

and specific allegation is that they have

given kick and fist blows to the deceased.

8. The Probation Officer's report in Criminal

Revision Application nos.121/23, 161/23 and

162/23 does not reflect that rehabilitating

the applicants with parents would create any

bad influence. The quarrel which ensued was

between two groups of persons and as per the

FIR on the earlier day, the deceased himself

had given a slap to one of the juvenile. The

report of the Probation Officer in Criminal

Revision Application nos.121/23, 161/23 and

162/23 suggests that if the applicants are

rehabilitated, they may be taken care by the

parents.

9. While in Criminal Revision Application

nos.163/23 and 164/23, the report of the

Probation Officer has not been found very

conducive to consider the release of the

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

applicants on bail. The Appellate Judge in

Criminal Appeal nos.23/22 and 24/22 has

after observing the report of the Probation

Officer has directed the parents to file the

bail application again after conclusion of 3

months and the Juvenile Justice Board is

directed to call upon the necessary report

and to decide the bail application on

merits. Since the liberty is reserved to the

parents to approach Juvenile Justice Board

to consider the bail application on the

basis of the report, this Court finds that

the order so passed by the Children's Court

in Criminal Appeal nos.23/22 and 24/22

requires no interference and hence, the

Criminal Revision Application nos.163/23 and

164/23 stand rejected with similar direction

to the parents to approach the Juvenile

Justice Board. Thus, the board would require

to consider the bail application on merits

R/CR.RA/161/2023 ORDER DATED: 07/03/2023

by calling upon the necessary report.

10. While in Criminal Revision Applications

no.121/23, 161/23 and 162/23, the report of

the Probation Officer is found to be

positive. The rehabilitation of the child

with the parents is found advisable.

11. In the result, Criminal Revision Application

nos.121/23, 161/23 and 162/23 succeed and

are allowed. Juveniles in conflict with law

are ordered to be released on bail in

connection with the FIR no.

11197059220396/2022 of Jarod Police Station,

Vadodara Rural on the applicants'

father/mother executing a personal bond in

sum of Rs.10,000/- each (Rupees ten thousand

only) with surety of like amount before the

Children's Court.

12. It is directed that the Probation Officer

shall monitor the conduct of the juveniles

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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 juveniles for

any behaviour modification then necessary

therapy and psychiatric support be provided

to the juveniles in conflict with law.

13. The parents of the juveniles to ensure that

the juveniles will pursue their academic

career.

Direct service is permitted.

(GITA GOPI,J) Maulik