Gujarat High Court
Aakash Kalubhai Vaskale vs State Of Gujarat on 13 June, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/680/2024 ORDER DATED: 13/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR REGULAR BAIL) NO. 680 of
2024
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AAKASH KALUBHAI VASKALE
Versus
STATE OF GUJARAT & ANR.
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Appearance:
KUMAR H TRIVEDI(9364) for the Applicant(s) No. 1
MR RAJENDRA R CHAVDA(10209) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR HARDIK MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/06/2024
ORAL ORDER
1. RULE. Learned Additional Public
Prosecutor waives service of notice of Rule on
behalf of respondent - State.
2. The present revision application has
been filed by the applicant-revisionist under
section 102 of Juvenile Justice (Care And
Protection of Children) Act, 2015, (hereinafter
referred to as 'J.J. Act' for short), making a
prayer for regular bail to the applicant, who was
aged about 17 years at the time of alleged act.
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3. The FIR was registered before the
Junagadh Taluka Police Station as C.R.
No.11203025240006 of 2024 for the offences
punishable under sections 376(3), 376(2)n of IPC
and sections 5(j)(2), 5(L), 5(N), 6, 8 and 12 of
the Protection of Children from Sexual Offences
Act, 2012 (hereinafter referred to as the 'POCSO
Act').
4. The father of the juvenile in conflict
with law had moved the principal Magistrate of
Juvenile Justice Board of Junagadh by filing
Criminal Misc. Application No.251 of 2024, where
by an order dated 23.02.2024, the application
came to be rejected, thus thereafter moved the
Children Court by filing Criminal Appeal No.24 of
2024. The legality and propriety of the order is
under challenge before this Court in the present
revision application moved under section 102 of
the J.J. Act.
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5. Learned advocate Mr. Kumar H.Trivedi for
the juvenile in conflict with law submitted that
at the time of offence, as alleged, the juvenile
was in affectionate relation with the victim,
which culminated into physical relation, and the
victim and accused are relatives residing in the
same vicinity. Mr. Trivedi submitted that after
the physical relation, the victim girl who was
stated to be 13 years, got impregnated, but the
pregnancy was terminated by the order of the
concerned Court.
5.1 Advocate Mr. Trivedi submitted that
Radiologist opinion was recorded for the age of
the victim on 10.01.2024, where the Radiology
bone age of the victim was shown as 15+-2, hence,
the age factor is not definite.
5.2 Advocate Mr. Trivedi further stated that
the applicant himself is a juvenile, and stated
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R/CR.RA/680/2024 ORDER DATED: 13/06/2024
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that the trial court was required to call for the
psychological report to examine the mental
capacity of the juvenile in conflict with law.
Mr. Trivedi stated that the J.J. Board as well as
learned appellate Court was required to reflect
the opinion of the psychologist in the order to
examine the mental capacity of the juvenile. The
learned judge has not even referred to any
preliminary assessment, if at all of the
juvenile.
5.3 Advocate Mr. Trivedi submitted that sub-
section (1) of section 15 along with the proviso
deals with the preliminary assessment with regard
to physical and capacity to commit such offence
and ability of the juvenile to understand the
consequences of the offences, and even to observe
the circumstances under which the alleged offence
came to be committed and for that purpose the
Board is to required to take the assistance of
experienced psychologists or social workers or
NEUTRAL CITATION
R/CR.RA/680/2024 ORDER DATED: 13/06/2024
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other experts.
5.4 Advocate Mr. Trivedi further stated that
under section 19, the power of Children Court,
notes about receipt of the preliminary assessment
from the Board under section 15, and thereafter
the Children Court is required to decide whether
there is a need for trial of a child as an adult.
The Children Court may also take the assistance
of experience psychologist or psycho social
worker or other experts to examine the fact of
mental and physical capacity of the juvenile in
conflict with law to commit such offence and the
ability to understand the consequences of the
offence.
5.5 Advocate Mr. Trivedi submitted that the
learned appellate Court has not considered the
actual factors to assess the juvenile's mental
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status, but has noted of the one criminal
antecedent of his father. Mr. Trivedi submitted
that as per his instruction only one case has
been registered against the father.
6. Mr. Hardik Mehta, learned APP for the
respondent State submitted that the age
certificate with the Radiological Born assessment
is of 15+-2, and, thus, accordingly the age of
the victim, as has been noted in the police
record as of 13 years, is rightly considered by
the J.J. Board and the appellate Court, hence,
learned APP submitted that this very fact of
considering the age of the victim, the mental and
physical capacity could be understood of the
juvenile, who was aged about 17 years, who would
have been in the knowledge of the gravity of the
offence, and would be mature enough to understand
the consequences of the offence, and submitted
that the order passed by the appellate Judge is
just and legal and thus, urged to reject the
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revision application.
7. Heard learned Advocates on both the
sides and perused the material on record. For the
purpose of conducting the preliminary assessment,
as laid down by the Hon'ble Supreme Court in
Barun Chandra Thakur Vs. Master Bholu & Anr., in
Criminal Appeal No.950 of 2022, declared on
13.07.2022, it is imperative to take the
assistance of psychologist or psycho-social
worker or other experts, who are experienced in
working with children in difficult circumstances.
The most important aspect, which has been very
specifically embolden under sub-rule 10A(2) is
while making preliminary assessment, the child
shall be presumed to be innocent unless proved
otherwise. The Board while passing the
preliminary assessment order regarding the need
for trial of the said child as an adult, shall
have to assign reason for the same. The Board
decides whether the child should be transferred
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on the finding of probable cause of the child's
guilt. Clause (xvi) of section 3 of the J.J. Act,
for general principles for the administration of
the Act, makes it clear that the basic procedural
standard of fairness shall be adhered to,
including the right to a fair hearing, rule
against bias etc. The decision passed by the
Board must necessarily be supported by reason, in
as much as, assigning reason is the best way out
to demonstrate the application of mind.
8. This Court in an earlier Criminal
Revision Application No.1024 of 2023 (Child in
conflict with law through Guardian v. State of
Gujarat) vide judgment dated 15.09.2023 had given
the guidelines for the JJB and the Children's
Court to follow incase of a juvenile where the
Court was required to have (i) Objective
satisfaction (ii) Subjective satisfaction and
(iii) Judicial satisfaction and to examine the
case the juvenile by following the guidelines of
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the National Commission for Protection of Child
Rights which were framed after the case of the
Hon'ble Apex Court in Barun Chandra Thakur Vs.
Master Bholu & Another, in Criminal Appeal No.950
of 2022, declared on 13.07.2022.
9. Since, nothing has been brought on
record regarding the mental and physical capacity
of the juvenile, and the fact of any
understanding of the consequences of his act, and
taking into consideration the role attributed to
the juvenile and the circumstances under which
the offences came to be committed, and as the
trial will take its own time to conclude, this
Court finds this to be a fit case where
discretion could be exercised in favour of the
juvenile.
10. In the result, the Revision Application
is allowed. The juvenile in conflict with law is
ordered to be released on regular bail in
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connection with FIR being C.R. No.11203025240006
of 2024 registered with Junagadh Taluka Police
Station, upon his father executing a personal
bond in the sum of Rs.10,000/- (Rupees Ten
Thousand Only) with a surety of the like amount
before the Children's Court.
11. 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 behavior
modification then necessary therapy and
psychiatric support be provided to the juvenile
in conflict with law.
12. The father of the juvenile to ensure
that the juvenile will not fall into bad company.
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13. Rule is made absolute to the aforesaid
extent. Direct service is permitted. Registry to
communicate this order to the concerned
Court/authority by Fax or Email forthwith.
(GITA GOPI,J)
Pankaj
