Gujarat High Court
Shahil Santoshbhai Tade (Juvenile) ... vs State Of Gujarat on 18 June, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/1226/2023 ORDER DATED: 18/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR REGULAR BAIL) NO. 1226
of 2023
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SHAHIL SANTOSHBHAI TADE (JUVENILE) THRO REKHA SANTOSH
TADE (JOGI)
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. KISHAN H DAIYA(6929) for the Applicant(s) No. 1
MR HARDIK MEHTA APP for the Respondent(s) No. 1
MS ZAINAB I BHARMAL(9298) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/06/2024
ORAL ORDER
1. RULE. Learned Additional Public
Prosecutor waives service of notice of Rule on
behalf of respondent - State.
2. This application has been filed by the
juvenile in conflict with law through his mother
as a guardian under Section 102 of the Juvenile
Justice (Care and Protection of Children) Act,
2015 (hereainafter referred to in short as the
'JJ Act') challenging the legality and the
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propriety of the order of the Juvenile Justice
Board (for short 'J.J. Board') and the Children's
Court.
3. Mr. Kishan H.Daiya, learned Advocate for
the applicant submitted both the courts have
failed to appreciate section 12 of the J.J. Act
and has erred in deciding the matter of the
juvenile, as was dealing bail application under
section 439 of the Cr.P.C. Advocate Mr. Daiya
submitted that four of the major accused and
three juveniles have been granted bail.
3.1 Advocate Mr. Daiya submitted that
section 12 of the J.J. Act mandates despite
anything contained in Cr.P.C. or under any law
for the time being in force, juvenile 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. Advocate Mr. Daiya
submitted that juvenile is entitled for bail and
only on that very provision of sub-section (1) of
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section 12 of the J.J. Act, such person who was
considered as juvenile in conflict with law shall
not be released, if it appears a reasonable
ground for believing that his release is likely
to bring that person in association with any
known criminal, or expose the said person to
moral, physical or psychological danger or the
person's release would defeat the ends of
justice. Advocate Mr. Daiya submitted that Board
as well as Children's Court was required to
record the reasons for denying the bail and
circumstances, which led to such a decision.
3.2 Referring to the FIR, Advocate Mr. Daiya
submitted that this denial of bail was alleged to
be in the company of other co-accused, and the
allegation was that, all of them had come with
wooden stick and sharp weapon. Mr. Daiya further
stated that specific allegations have been made
against all the co-accused regarding assault, and
when the complainant had intervened to resolve
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the dispute, he is alleged to have received a
blow with the wooden stick, and because of that
assault, he started bleeding from his head, and
at that time, the complainant's brother, mother
and sister had taken him back in the house. It is
alleged that, at that time, Satish alias Kaliya
had come there with sword in his hand and along
with him Arjun Dubey and father of Satish Kaliya
- Vijay Dubey, both had come with the wooden
stick.
3.3 Advocate Mr. Daiya further submitted
that one Rahul is stated to be armed with sword
and Vipul Rathod with wooden stick and Ajay too
with the wooden stick. Advocate Mr. Daiya
submitted that it is also noted in the FIR that
mother and sister of Satish Kaliya had also come
at that place and when they had tried to escape,
they had started beating them incessantly in the
lobby with the weapons, which were in the arms.
Thereafter, specifically it was noted that Aditya
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alias Raj had given a blow on the head of sister
with wooden stick, and at that time, the
complainant's maternal cousin Milind Prakash
Bhambre had come to that place, and thereafter
Mr. Daiya submitted that is alleged that Vipul,
Ajay, Satish Kaliya and the present juvenile in
conflict with law had taken them out from the
lobby by beating them, and when crowd started to
gather, they all ran away from the place; thus
submitted that no prima facie case could be found
against the present applicant to allege that he
had inflicted any stick blow with any sharp
weapon.
4. Countering the arguments, Ms. Zainab
I.Bharmal for the complainant submitted that
sharp cutting weapon known as 'Koyta' was
recovered from the present juvenile in conflict
with law with blood stain on it. Ms. Zainab
submitted that victim Milind was injured with
sharp weapon on the head and thigh of both the
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legs and when he was brought before the hospital,
the Doctor had declared him death.
5. Mr. Hardik Mehta, learned APP submitted
that the case under Atrocities Act has been
filed, where the investigating officer is
required to deal with investigation in accordance
to law. Learned APP submitted that there is prima
facie evidence on record that the applicant was
involved in the offence, and the protection
officer himself has noted that he would fall in
the bad companies of the accused; thus stated
that in consonance with the provision of section
12, no bail should be granted.
6. Heard learned advocate for the
respective parties and perused the material
produced on record. If the offence is considered
grievous and taking into consideration the
gravity of offence, then no bail ought to have
been granted to the other co-accused. The
accused, who are majors, have been granted bail.
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The learned Children Court had gone into the
facts of the case, which have been noted against
the accused, and has found that the order of the
J.J. Board is just and reasonable and did not
found it just and reasonable to allow the bail.
6.1 The order of both the courts would be
erroneous, since both the courts had not taken
into consideration the provision of section 12 of
the J.J. Act in the right spirit. While J.J.Board
has also dealt with the facts of the case, but
has not examined the provision of section 12 of
the J.J. Act. The learned J.J. Board as well as
Children Court was required to take into
consideration the report of the protection
office, to examine the fact, whether the juvenile
was in a mental and physical capacity to
understand the consequences of the offence
alleged to have been committed. The J.J. Board as
well as Children Courts are required to take the
assistance of experience psychologist or psycho
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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.
7. 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
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as an adult, shall have to assign reason for the
same. The Board decides whether the child should
be transferred 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 in case of a juvenile where the
Court was required to have (i) Objective
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satisfaction (ii) Subjective satisfaction and
(iii) Judicial satisfaction and to examine the
case the juvenile by following the guidelines of
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.
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10. In the result, the Revision Application
is disposed of. The juvenile in conflict with law
is ordered to be released on regular bail in
connection with FIR No.11210025201958 of 2020
registered with Limbayat Police Station, Surat
without any order of surety.
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 mother 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
