[Cites 29, Cited by 0]

Gujarat High Court

Juvenile Kishanbhai Bhikhabhai Dabhi ... vs State Of Gujarat on 21 April, 2026

Author: Gita Gopi

Bench: Gita Gopi

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                            R/CR.RA/73/2026                                         ORDER DATED: 21/04/2026

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL REVISION APPLICATION (FOR REGULAR BAIL) NO. 73 of
                                                  2026

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                             JUVENILE KISHANBHAI BHIKHABHAI DABHI (THAKOR) THRO
                                        MADHUBEN DARSHILBHAI THAKOR
                                                    Versus
                                           STATE OF GUJARAT & ANR.
                      ================================================================
                      Appearance:
                      MR PIYUSH TRIVEDI with MR NAYANKUMAR V SHUKLA(10184) for the
                      Applicant(s) No. 1
                      NOTICE SERVED BY DS for the Respondent(s) No. 2
                      MR ROHAN H RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the
                      Respondent(s) No. 1
                      ================================================================

                        CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                                         Date : 21/04/2026

                                                                ORDER

1) RULE. Learned Additional Public Prosecutor waives

service of notice of Rule on behalf of the respondent-

State.

2) The applicant herein the child in conflict with law (CCL)

aged about 17 years and 30 days, through his

grandmother, under Section 102 of the Juvenile Justice

(Care and Protection of Children) Act, 2015 (hereinafter

referred to in short as the 'JJ Act') has made a prayer to

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quash and set aside the judgment and order dated

19.11.2025 passed by the learned Special Judge

(POCSO), Surendranagar, in Criminal Appeal No.234 of

2025 in connection with the First Information Report (FIR)

being C.R. No.11211035240330 of 2024 registered with

Muli Police Station, Surendranagar for the offences

punishable under Sections 363, 366, 376(2)(J)(K)(N) of

the Indian Penal Code (IPC) and under Sections 3(A), 4,

5(l), 5(j)(2), 6, 9 (L) and 12 of the Protection of Children

from Sexual Offences Act, 2012 (in short 'POCSO Act'),

and to release CCL on regular bail.

3) The allegations are to the effect that the victim girl, the

daughter of the complainant and is aged 14 years 5

months and 9 days was kidnapped by the CCL from the

legal guardianship of her parents under the pretext of

marrying her, who had taken her to various places,

stayed together with the victim girl, established physical

relations with her; the girl had become pregnant carrying

pregnancy for a period of 5 months.

4) This Court had called for the DNA Report since the victim

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had undergone medical termination of pregnancy. The

DNA Report matches and declares the CCL to be the

biological father.

5) Learned advocate for the CCL Mr. Piyush Trivedi

submitted that the Report of the Probation Officer would

require a special consideration since the CCL had

reported to the Probation Officer that an amount of

Rs.2,00,000/- was given in the presence of the members

of the community for the engagement and thereafter,

they both were visiting each other's houses and were on

talking terms. It is further submitted that one day the

victim girl had informed the CCL that her parents were

harassing her thus, she had threatened that if the CCL

would not come and take her away, she would commit

suicide. It is also submitted that thereafter, the CCL and

the victim both ran away from the house. It is submitted

that the CCL had also expressed his opinion before the

Probation Officer that in view of his engagement with the

victim girl, the parents of the victim girl ought not to

have filed a case against him. Further, placing reliance

on the Report of the Probation Officer, it is submitted

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that it was only on the insistence of the victim girl, the

CCL had to elope with her. Considering all the above

aspects, it is submitted that this Court may exercise

discretion in favour of the CCL.

6) The Report of the Probation Officer suggests that from

the tone of speaking, the CCL was found to be normal,

self-oriented about the place, time, date and other

things. His social understanding was also sharp and was

also having an understanding of the entire situation.

7) Learned Additional Public Prosecutor appearing for the

respondent-State Mr. Rohan H. Raval submitted that the

CCL had a very clear understanding about the social

repercussions and he also knew about the consequences

of his own act, that itself would prove his mental and

physical capacity of understanding the situation. The

involvement of the present CCL is clearly reflected on

record and therefore, submitted that the order passed by

the Appellate Court is proper and urged that the present

application be rejected and no discretion be exercised in

favour of the CCL.

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8) The statement relied on by learned advocate for the CCL

Mr. Piyush Trivedi suggests that the victim girl had

travelled with the CCL, had stayed with him at several

places for about 7-8 months. The statement under

Section 164 of Code of Criminal Procedure, 1973 (in short

'Cr.P.C.') would reveal that the victim girl makes some

reference about Rs.2,00,000/- being paid to her parents

for the engagement. There is no further investigation

from the side of the police to this contention which has

been raised under Section 164 of Cr.P.C. about the

statement of the victim girl.

9) Having considered the Report of the Probation Officer as

well as the fact that the victim girl stayed with the CCL

for about 7-8 months, the application deserves to be

allowed.

10) At this stage, it would be appropriate to refer to the case

of Child in Conflict with Law Through Savitaben

Vitthalbhai Vasava Vs. State of Gujarat, 2022 (0)

AIJEL-HC 244005 (passed in CRRA No.901 of 2021 on

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28.04.2022), it has been observed as under:

"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.

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 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 nonbailable offence is detained by the police or appears or brought before a Board, such person

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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 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

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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."

11) The case of Barun Chandra Thakur Vs. Master Bholu

& Anr., in Criminal Appeal No.950 of 2022, was declared

on 13.07.2022 [(2023) 12 SCC 401]. The Hon'ble

Supreme Court while dealing with section 15 of the J.J.

Act for preliminary assessment of child in conflict with

law, observed as under :-

"65. While considering a child as an adult one needs to look at his/her physical maturity, cognitive abilities, social and emotional competencies. It must be mentioned here that from a neurobiological perspective, the development of cognitive, behavioural attributes like the ability to delay gratification, decision making, risk taking, impulsivity, judgement, etc. continues until the early 20s. It is, therefore, all the more important that such assessment is made to distinguish such attributes between a child and an adult.

66. Cognitive maturation is highly dependent on hereditary factors. Emotional development is less likely to affect cognitive maturation. However, if emotions are too intense and the child is unable to regulate emotions effectively, then intellectual insight/knowledge may take a back seat.

70. A child with average intelligence/IQ will have the intellectual knowledge of the consequences of his actions. But whether or not he is able to control himself or his actions will depend on his level of emotional competence. For example, risky driving may result in an accident. But if emotional competence is not high, the urge for

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thrill seeking may get the better of his intellectual understanding.

71. Children may be geared towards more instant gratification and may not be able to deeply understand the long-term consequences of their actions. They are also more likely to be influenced by emotion rather than reason. Research shows that young people do know risks to themselves. Despite this knowledge, adolescents engage in riskier behaviour than adults (such as drug and alcohol use, unsafe sexual activity, dangerous driving and/or delinquent behaviour). While they do consider risks cognitively (by weighing up the potential risks and rewards of a particular act), their decisions / actions may be more heavily influenced by social (e.g. peer influences) and/or emotional (e.g. impulsive) tendencies. In addition, the lack of experience coupled with the child's limited ability to deeply understand the long-term consequences of their actions can lead to impulsive / reckless decision making."

12) The judgment and order dated 19.11.2025 passed by the

learned Special Judge (POCSO), Surendranagar, in

Criminal Appeal No.234 of 2025 and the order of JJB

rejecting bail is set aside.

13) In the result, the present CCL is ordered to be released

on regular bail in connection with the aforesaid FIR, upon

his grandmother executing a personal bond in the sum of

Rs.10,000/- (Rupees Ten Thousand Only) with a surety of

the like amount before the JJB.

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