[Cites 13, Cited by 0]
Gujarat High Court
Vijuben W/O Gordhanbhai Raghavbhai ... vs State Of Gujarat on 1 May, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/1289/2026 ORDER DATED: 01/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 1289 of 2026
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VIJUBEN W/O GORDHANBHAI RAGHAVBHAI MAKWANA LEGAL
GUARDIAN OF JUVENILE
Versus
STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No. 1
MR NIRAJ SHARMA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/05/2026
ORDER
1. The challenge has been given by the mother of juvenile
to the order dated 30.03.2026 passed by the learned 3 rd
Additional District and Sessions Judge, Bhavnagar in Criminal
Miscellaneous Application No.472 of 2026. The child-in-
conflict-with-law (for short, 'CCL') was aged about 16 years
and ten months at the time of the incident. The FIR was
lodged against the CCL as well as against his own father and
the father was in judicial custody.
2. The Juvenile Justice Board (for short, 'JJ Board') by an
order dated 06.09.2025 under Section 15 and 18(3) of the
Juvenile Justice (Care and Protection) Act, 2015 (for short, the
'JJ Act') declared the child-in-conflict-with-law to be tried as an
adult. Hence was ordered to be sent to the Children's Court.
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3. The present applicant as mother had made a prayer
before the Court for condoning the delay of 187 days in
challenging the order dated 06.09.2025, whereby the JJ Board
had ordered her son to be tried as an adult in the Children's
Court. The ground raised was that her husband was in jail and
that she being a laborer had stated that she could not receive
timely legal advice and that had led to the delay of 187 days.
4. Learned Advocate Mr. Chirag Aydi on behalf of learned
Advocate Mr. Maulik Soni submitted that wide powers are
granted to the Court of Sessions by the proviso in Sub-section
(1) of Section 101 of the JJ Act and the said could be made
applicable to the provision under Sub-section (2) of Section
101 of the JJ Act.
5. Learned APP Mr. Niraj Sharma to assist the Court has
made a reference to the case of Child In Conflict With Law
Through His Mother vs. State of Karnataka and Anr., reported
in 2024 (8) SCC 473 to state that the Hon'ble Supreme Court
has dealt with the provisions of Section 15, 18, 101 of the JJ
Act and has clarified the anomaly which gets created under
Section 101 of the JJ Act.
6. Sub-section (1) along with the proviso of Section 101 of
the JJ Act is reproduced here-in-below:
Section 101 Appeals: "(1) Subject to the
provisions of this Act, any person
aggrieved by an order made by the
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Committee or the Board under this Act
may, within thirty days from the date of
such order, prefer an appeal to the
Children's Court, except for decisions by
the Committee related to Foster Care and
Sponsorship After Care for which the
appeal shall lie with the District
Magistrate:
Provided that the Court of Sessions,
or the District Magistrate, as the case may
be, may entertain the appeal after the
expiry of the said period of thirty days, if it
is satisfied that the appellant was
prevented by sufficient cause from filing
the appeal in time and such appeal shall be
decided within a period of thirty days."
6.1 Sub-section (1) provides that any person who is
aggrieved by an order by the Board may prefer an appeal to
the Children's Court within 30 days from the date of such an
order. The appeal as provided lie before the Children's Court.
The proviso to the said sub-section further clarifies that in case
such appeal is not preferred within 30 days, then the Court of
Sessions may entertain the appeal after the expiry of the said
period of 30 days, if the Court of Sessions is satisfied that the
appellant was prevented by sufficient cause from filing the
appeal in time and then such appeal shall be decided within a
period of 30 days.
6.2 The proviso to sub-section (1) thus gives a power to the
Court of Sessions to entertain an appeal after the statutory
period of 30 days gets elapsed, if the appellant is in a position
to satisfy the Court that the appellant was prevented by
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sufficient cause from filing the appeal in time.
6.3 Sub-section (2) of Section 101 also would require a
specific mention since here in the present matter, the CCL
would be facing the proceedings under Section 302 of the
Indian Penal Code (for short, 'IPC'), which falls under the
definition of 'heinous offence'. Admitted position on record is
that the JJ Board on 06.09.2025 had passed an order under
Section 15 and Section 18(3) of the JJ Act observing that the
CCL would be required to be tried by the Children's Court.
Hence, the Board ordered to transfer the trial of the case to
the Children's Court.
7. In the case of Child In Conflict With Law Through His
Mother (supra), the Hon'ble Supreme Court has observed in
para nos.61, 62, 63 as under:
"61. From a conjoint reading of the
aforesaid provisions of the Act and the
2016 Rules, in our opinion, wherever
words "Children's Court" or the "Sessions
Court" are mentioned both should be read
in alternative. In the sense where
Children's Court is available, even if the
appeal is said to be maintainable before
the Sessions Court, it has to be considered
by the Children's Court. Whereas where no
Children's Court is available, the power is
to be exercised by the Sessions Court.
62. Though, the right of appeal has been
provided in Section 15(2) and Section
101(2) of the Act against an order passed
under Section 18(3) after preliminary
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assessment under Section 15 of the Act,
however, neither any time has been fixed
for filing the appeal nor any provision is
provided for condonation of delay in case
need be.
63. In our opinion, the same being an
omission. In order to make the Act
workable and putting timelines for exercise
of statutory right of appeal which always is
there, we deem it appropriate to fill up this
gap, which otherwise does not go against
the scheme of the Act. Hence, for the
period for filing of appeal in Section
101(2), we take guidance from Section
101(1) of the Act. The period provided for
filing the appeal therein is 30 days and in
case sufficient cause is shown the power to
condone the delay has also been conferred
on the appellate authority. Timeline has
also been provided for decision of the
appeal."
8. The judgment as referred on conjoint reading of Sub-
section (1) and Sub-section (2) of Section 101 of the JJ Act
has clarified that the appeal would be maintainable before the
Court of Sessions and the Hon'ble Supreme Court by referring
to the Act as well as 2016 Rules was of an opinion that
wherever words 'Children's Court' or 'Court of Sessions' are
mentioned, both should be read in alternatively, clarifying the
sense that when Children's Court is available, even if the
appeal is said to be maintainable before the Sessions Court, it
has to be considered by the Children's Court and when there is
no Children's Court available, the power is to be exercised by
the Sessions Court.
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9. Admittedly, in the State of Gujarat, there are
notifications regarding the Children's Court and the first
Additional Sessions Court would act as Children's Court, the
impugned order of the Court does not specify whether that
Court while rejecting the application was sitting in a status of
Children's Court. Be that it may be, it is required to be made
clear that whenever such an application is moved and when
Children's Court is available, it should be addressed only to the
Children's Court and the appeal should be entertained by the
Children's Court of the concerned jurisdiction.
10. Here, the grievance is raised against non-entertaining the
application of the mother who had made a prayer for
condoning the delay of 187 days. In the referred judgment of
Child In Conflict With Law Through His Mother (supra), the
Hon'ble Supreme Court has dealt with this issue of the right of
the appeal provided under Section 15(2) and Section 101(2) of
the JJ Act against an order passed under Section 18(3) and
has observed that after the preliminary assessment under
Section 15 of the Act, neither there is any time limit fixed for
filing the appeal nor any provision is provided for condonation
of delay in the case may be.
10.1 As observed here-in-above under Section 101(2) of the
JJ Act, though the right to appeal has been provided as noted
under Section 15(2) of the JJ Act where the order of
preliminary assessment of the Board becomes an appealable
order, further Section 101(2) clarifies that appeal shall lie
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against an order of the Board passed after making the
preliminary assessment into a heinous offence under Section
15 of the Act before the Court of Sessions, the Hon'ble
Supreme Court in the case of Child In Conflict With Law
Through His Mother (supra) has laid down a workable solution
to the omission found under Section 101(2) of the JJ Act of no
provision for condonation of delay nor there is no time limit
fixed for filing the appeal.
10.2 Hence, observing it as an omission and in order to
making the act workable, putting the time line for exercise of
statutory right of appeal, the Hon'ble Supreme Court had
deemed it fit to fill up the gap, while noting that it would not
go against the scheme of the Act. Hence, under that anamoly,
finding the omission in the provision under Section 101(2) of
the JJ Act, the Hon'ble Supreme Court has mandated to take
guidance from Section 101(1) of the Act for the period for
filing of an appeal under Section 101(2). Hence had laid down
that the period provided for filing the appeal therein is 30 days
and in case sufficient cause is shown, then the power to
condone the delay has been conferred on the appellate
authority, wherein timeline has also been provided for the
decision of the appeal.
10.3 The fact, thus, remains in the matter in hand that the
learned Sessions Judge was required to observe the fact that
when no time line has been laid down for filing the appeal
challenging the order of the Board for making preliminary
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assessment into the heinous offence under Section 15 of the
Act and thus, as laid down in Child In Conflict With Law
Through His Mother (supra), 30 days time gets limited for
filing the appeal and in case, the sufficient cause is shown for
delay in filing the appeal, the concerned Children's Court is
require to deal with the same.
10.4 In the case of Collector, Land Acquisition, Anantnag and
Another v. Mst. Katiji and Others reported in AIR 1987 SC 1353, it
has been observed as under:-
"3. The legislature has conferred the power to
condone delay by enacting Section 5 of the
Indian Limitation Act of 1963 in order to enable
the Courts to do substantial justice to parties by
disposing of matters on 'merits'. The expression
"sufficient cause" employed by the legislature is
adequately elastic to enable the courts to apply
the law in a meaningful manner which subserves
the ends of justice that being the life-purpose for
the existence of the institution of Courts. It is
common knowledge that this Court has been
making a justifiably liberal approach in matters
instituted in this Court. But the message does
not appear to have percolated down to all the
other Courts in the hierarchy. And such a liberal
approach is adopted on principle as it is realized
that:-
1. Ordinarily a litigant does not stand to benefit
by lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As
against this when delay is condoned the highest
that can happen is that a cause would be
decided on merits after hearing the parties.
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3. "Every day's delay must be explained" does
not mean that a pedantic approach should be
made. Why not every hour's delay, every
second's delay? The doctrine must be applied in
a rational common sense pragmatic manner.
4. When substantial justice and technical
considerations are pitted against each other,
cause of substantial justice deserves to be
preferred for the other side cannot claim to have
vested right in injustice being done because of a
non-deliberate delay.
5. There is no presumption that delay is
occasioned deliberately, or on account of
culpable negligence, or on account of mala fides.
A litigant does not stand to benefit by resorting
to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected
not on account of its power to legalize injustice
on technical grounds but because it is capable of
removing injustice and is expected to do so."
11. Here in the present case, the applicant as mother was
dealing with the situation in her house where her husband and
her son were facing the trial under Section 302 of the IPC. The
mother though had participated in the proceeding before the JJ
Act, stated that she was a laborer and she was not having that
financial resources to take legal assistance in time.
Considering the background of the applicant and her
inefficiency to take legal assistance, the delay was required to
be condoned. As per this Court, such condition of the applicant
itself is sufficient cause for condoning the delay.
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11.1 Further, it is also required to be noted that though we
are having all the resources of legal service authority and such
legal aids are provided at the JJ Board, no special mechanism
has been laid down to instruct or advice or to give an opinion
by the retainer lawyer in writing to the concerned litigants of
the right to file an appeal. No such advice has been provided
to her by the JJ Board through the retainer lawyer nor any
such advice was given to the applicant that she could have
free access to legal aid by way of DLSA.
11.2 It is also required to be clarified that the learned
Additional District and Sessions Judge has not laid down the
designation of a Court while signing the order whether the
order was passed in a capacity of Children's Court or a
Sessions Court. The maintainability of the application and
order passed thereon becomes questionable even on that
ground.
11.3 Had the learned Sessions Judge passed an order as
Children's Court then the Court was also required to note in
the order whether after passing of the order under Section 15
of the JJ Act, any order was passed by the Children's Court as
provided under Section 19(1) of the JJ Act which records of the
powers of the Children's Court on receipt of the preliminary
assessment from the Board under Section 15, to decide of the
need for trial of the child as adult as per the provision of Code
of Criminal Procedure, (for short, 'Cr.PC') and pass appropriate
orders after trial subject to the provision of the very Section
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19 and Section 21, considering the special need of the child,
the tenets of fair trial and maintaining the child a friendly
atmosphere.
12. The learned Judge is also required to note that while
passing any order under Section 101(2) of the JJ Act, the
Court of Sessions which could be read as Children's Court as
noted in the judgment of Child In Conflict With Law Through
His Mother (supra), examining the preliminary assessment into
the heinous offence under Section 15 of the Act while deciding
the appeal may take the assistance of experienced
psychologist or medical specialist other than those whose
assistance had been obtained by the Board in passing the
order under the said section.
13. The prayer was made of the indulgence of the Children's
Court to examine the order passed by the JJ Board under
Section 15. The statutory right of appeal has been granted to
the appellant and when no time limit has been laid down in the
Sub-section 101(2) of the JJ Act to preferring an appeal as laid
down in the referred judgment, 30 days time would be the
limitation for filing an appeal and if sufficient cause has been
shown, then the Children's Court would be entitled to condone
the delay and entertain such an appeal.
14. As noted herein above, the applicant as mother had
come before the Court with the ground that her husband was
in jail and she was not having the financial capacity to take
legal assistance.
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15. In the result, the present application is allowed. The
impugned order dated 30.03.2026 passed by the learned 3 rd
Additional District and Sessions Judge, Bhavnagar in Criminal
Miscellaneous Application No.472 of 2026 is set aside and the
delay caused in filing the appeal of 187 days is condoned and
the appeal preferred is directed to be listed before the
Children's Court.
(GITA GOPI,J)
PARMAR KRISH/17
