Minor Manavbhai Bharatbhai ... vs State Of Gujarat
2023 Latest Caselaw 2196 Guj

     R/CR.RA/22/2023                                 ORDER DATED: 13/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL REVISION APPLICATION NO. 22 of 2023

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 MINOR MANAVBHAI BHARATBHAI THAKOR THROUGH BHARATBHAI
                   BIKHABHAI THAKOR
                         Versus
                   STATE OF GUJARAT
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 13/03/2023

                                 ORAL ORDER

1. This Revision Application under Section 102

of the Juvenile Justice (Care and Protection

of Children) Act, 2015 (hereinafter referred

to as "the Act") is moved by the applicant-

a minor, through his father praying for to

enlarge him on regular bail in connection

with FIR no. 11192064220162/2022 registered

with Dholka Rural Police Station, Ahmedabad

Rural for the offence punishable under

Sections 302, 201 and 114 of the IPC and

Section 135 of the Gujarat Police Act.

R/CR.RA/22/2023 ORDER DATED: 13/03/2023

2. Mr. Y.M. Thakore, learned advocate for the

applicant submits that the juvenile in

conflict with law at the time of the alleged

offence was 15 years and 11 months and thus,

states that he would be proceeded only

before the Juvenile Justice Board, where the

allegation against him is under Sections

302, 201 and 114 of the IPC. The allegation

against the juvenile in conflict with law is

that he had assisted another juvenile in

conflict with law, aged about 17 years, who

had inflicted knife blows on the deceased,

where the allegation is that both the

juveniles in conflict with law had called

another accused - Shaileshbhai to assist

them in disposing the dead body and

accordingly, as per the allegation,

Shaileshbhai came on his motorcycle bearing

registration no.GJ-38 AF-7640 and it is

alleged that all the 3 had disposed of the

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body in Narmada canal near Chandisar-

Ambaliyara.

3. Mr. Pranav Trivedi, learned APP submits that

if the juvenile in conflict with law below

the age of 16 is released on bail, he would

certainly fall in bad company and the

possibility of his improving would be very

minimal.

4. It appears that the report of the Probation

Officer has not been taken into

consideration by the J.J. Board. The J.J.

Board, though has referred to the provision

of Section 12 in the order and without even

calling for Probation Officer's report and

observing the same regarding the mental

status of the child without even following

the conditions as laid down in Section 18 of

the Act, has rejected the bail application.

The Appellate Court too has failed to even

consider the provisions of the Act and

R/CR.RA/22/2023 ORDER DATED: 13/03/2023

failed to observe the provisions as laid

down under Section 18 of the Act.

5. 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 preliminary assessment made by the JJ Board under Section 15(2) of the JJ Act, 2015 and when the need is found for the

R/CR.RA/22/2023 ORDER DATED: 13/03/2023

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 to be concluded that such bail plea would not be maintable under Section 439 of Cr.PC.

R/CR.RA/22/2023 ORDER DATED: 13/03/2023

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 and 12 of the Act, 2015 would discern that while there are certain general guidelines

R/CR.RA/22/2023 ORDER DATED: 13/03/2023

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

R/CR.RA/22/2023 ORDER DATED: 13/03/2023

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 for the time being in force", as occurring in Section 12 (1)." (emphasis supplied)

R/CR.RA/22/2023 ORDER DATED: 13/03/2023

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."

6. Section 18 of the Act is provided for the

orders regarding the child found to be in

conflict with law, where a Board is

satisfied on inquiry that a child

irrespective of age has committed a petty

offence or a serious offence or a child

below the age of 16 years has committed a

heinous offence or a child above the age of

16 years has committed a heinous offence and

the Board has, after preliminary assessment

under Section 15, disposed of the matter,

then, notwithstanding anything contrary

R/CR.RA/22/2023 ORDER DATED: 13/03/2023

contained in any other law for the time

being in force, based on the nature of

offence, specific need for supervision or

intervention, circumstances as brought out

in the social investigation report and past

conduct of the child, the board is required

to pass the orders as laid down under

Section 18 of the Act. Section 18 of the Act

reads as under:-

"18. Orders regarding child found to be in conflict with law.-

(1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,--

(a) allow the child to go home

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after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian;

(b) direct the child to participate in group counselling and similar activities;

(c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board;

(d) order the child or parents or the guardian of the child to pay fine: Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated;

(e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child's well-being for any period not exceeding three years;

(f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit

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facility for ensuring the good behaviour and child's well-being for any period not exceeding three years;

(g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home:

Provided that if the conduct and behaviour of the child has been such that, it would not be in the child's interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety.

(2) If an order is passed under clauses (a) to (g) of sub-section (1), the Board may, in addition pass orders to--

(i) attend school; or

(ii) attend a vocational training centre; or

(iii) attend a therapeutic centre; or

(iv) prohibit the child from

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visiting, frequenting or appearing at a specified place; or (v) undergo a de-addiction programme.

               (3) Where    the     Board      after
               preliminary    assessment       under

section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences."

7. According to the provision, here the child

is aged about 15 years 11 months and 3 days.

Considering the nature of offence and on the

need of supervision or intervention,

circumstances brought out in the social

investigation report, keeping in mind the

conduct of the child, the Board has to allow

the child to go home after advice or

admonition by following appropriate inquiry

and counseling to such child and to his

parents or the guardian and may direct the

child to participate in group counseling and

similar activities as laid down in Section

R/CR.RA/22/2023 ORDER DATED: 13/03/2023

18 of the Act and may direct the child to be

released on probation of good conduct and

placed under the care of any parent,

guardian or fit person on such parent,

guardian or fit person executing a bond,

with or without surety, as the Board may

require, for the good behaviour and child's

well being for any period not exceeding

three years.

8. Here in this case, the concerned Court has

not even called for the social investigation

report and the past conduct of the child has

not been considered. The facts of the case

suggest that it was a dispute between

another juvenile in conflict with law with

the deceased who is alleged to have an

affair with the sister. The petitioner does

not appear to be from any criminal

background. It is submitted by Mr. Thakore

that father of the child in conflict with

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law was serving at the said Village,

however, after the incident, they have

shifted to Soyla, Taluka Sanand and at

present, child is appearing for Std.10

examination.

9. Section 18 of the Act, thus, makes a

provision for the child below the age of 16

years even if he has committed a heinous

offence to put under the observation and in

care of parents or guardian for ensuring

good behaviour and well being of the child

as laid down in the said section.

Accordingly, since the juvenile in conflict

with law is below 16 years and considering

the accusation against him of the offence

under Section 201 of the IPC and the fact

that the juvenile is still pursuing his

education, juvenile in conflict with law is

ordered to be released on bail in connection

with the FIR no. 11192064220162/2022

R/CR.RA/22/2023 ORDER DATED: 13/03/2023

registered with Dholka Rural Police Station,

Ahmedabad Rural on the applicant's father

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. The father has to execute

the personal bond with a condition that he

would take care of his child for his good

behaviour and his well being and would see

that he completes his education.

10. 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 Juvenile Justice Board

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.

R/CR.RA/22/2023 ORDER DATED: 13/03/2023

11. Accordingly, the present application is

allowed in the above terms. Direct service

is permitted.

(GITA GOPI,J) Maulik