Gujarat High Court
X Thro Lakhiben Lavjibhai Parmar vs State Of Gujarat on 8 August, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/942/2023 ORDER DATED: 08/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 942 of 2023
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X THRO LAKHIBEN LAVJIBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR DIVYANG JOSHI with MR CHINTAN S POPAT(5004) for the Applicant(s)
No. 1
MS JIRGA JHAVERI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/08/2023
ORAL ORDER
1. This Revision Application has been filed by the juvenile in conflict with law, through his mother as Guardian, under Section 102 of the Juvenile Justice (Care & Protection of Children) Act, 2015 (hereinafter referred to in short as the 'JJ Act') challenging the order dated 23.12.2022 passed by the learned Principal Magistrate, Juvenile Justice Board, Junagadh (hereinafter referred to in short as 'JJ Board') in Criminal Case No.90 of 2022 and the order dated 20.05.2023 passed by the learned 3rd Additional Sessions Judge and Children Court, (POCSO), Junagadh, whereby, the bail application/s of the juvenile in conflict with law came to be rejected.
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2. The First Information Report (FIR) being C.R. No.11203038220359 of 2022 was registered on 10.10.2022 with Mangrol Police Station, Junagadh for the offences punishable under Sections 302, 326, 143, 147, 148, 149, 504 and 34 of the Indian Penal Code, 1860 (IPC) and under Section 135 of the Gujarat Police Act.
3. Heard learned Advocate for the applicant/juvenile Mr. Divyang A. Joshi who submits that the juvenile in conflict with law is aged about 17 years. It is further submitted that though an order under Section 18(3) of the JJ Act has been passed to try the juvenile in the Children's Court but the act of the juvenile would not fall under the definition of 'heinous offence' as the role of the juvenile in conflict with law does not get clearly reflected in the charge-sheet. It is also submitted that the cousin brother of the juvenile had eloped with the sister of the complainant and as a result, the complainant and his brother, i.e. the deceased - Sagar had come to the house of the present juvenile. The allegations are that when the complainant and his brother had Page 2 of 13 Downloaded on : Sun Sep 17 00:43:52 IST 2023 NEUTRAL CITATION R/CR.RA/942/2023 ORDER DATED: 08/08/2023 undefined come to reprimand the accused No.4 - Ajay, brother of the juvenile, Ajay gave a blow on the head of the complainant with an iron rod. It is further alleged that the juvenile and others had caught hold of the brother of the complainant - Sagar and accused No.5
- Sarman is attributed to have given a blow to the deceased on the chest of the deceased with the screwdriver (dismiss), which resulted in to the death of the deceased. It was, therefore, prayed that considering the role of the juvenile, the present application may be allowed and the juvenile herein may be released on bail.
4. Learned Additional Public Prosecutor submitted that the role of the present juvenile may be limited only to the extent that he caught hold of the deceased but the involvement of the juvenile cannot be ruled out and the criminality of the offence is to be considered since the juvenile after remand has been sent to the Children's Court to be tried as an adult.
5. The charge-sheet suggests that the brother as well as the father of the juvenile have been made an accused in the matter. This Court had called for the Police Page 3 of 13 Downloaded on : Sun Sep 17 00:43:52 IST 2023 NEUTRAL CITATION R/CR.RA/942/2023 ORDER DATED: 08/08/2023 undefined Report as well as the Probation Officer's Report by an order dated 28.07.2023. The Police Report suggests that there are no criminal antecedents qua the juvenile. The accused No.1, 2 and 5 are in Mangrol Sub Jail. The mother of the juvenile has stated that at present, her son is in Zonal Observation Home, Rajkot. The Probation Officer's Report shows that the juvenile in conflict with law has merely joined hands with his family in the act as a spectator and had replied to all the queries after perfectly understanding the same. The Report also suggests that the juvenile's economic status is weak whereas the social status is quite good. The Report states that there was an altercation between the complainant and the accused and during the period of altercation, the juvenile in conflict with law was at his work for selling scrap and then had gone to see the incident. The allegations qua the juvenile are catching hold of the deceased and the incident is of enmity where the cousin brother of the juvenile had eloped with the sister of the complainant. It is stated that the act has been carried out by one - Saran and the name of the juvenile's father and brother has Page 4 of 13 Downloaded on : Sun Sep 17 00:43:52 IST 2023 NEUTRAL CITATION R/CR.RA/942/2023 ORDER DATED: 08/08/2023 undefined been falsely invoked.
6. This Court had an occasion to deal with the bail application of a child in conflict with law and while granting bail, this Court dealt with the provisions of Section 12 of the Act and had explicitly laid down that Section 439 of the Cr.P.C. would not be applicable on the issue of grant or denial of bail to a child alleged to have committed bailable or non- bailable offence which is dealt with by the special statute i.e. Juvenile Justice (Care and Protection of Children) Act, 2015, which contains specific provision for bail under Section 12 of the Act. In the case of Child in Conflict with Law Through Savitaben Vitthalbhai Vasava v. State of Gujarat, 2022 (0) AIJEL-HC 244005 (passed in Cr.RA 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 Page 5 of 13 Downloaded on : Sun Sep 17 00:43:52 IST 2023 NEUTRAL CITATION R/CR.RA/942/2023 ORDER DATED: 08/08/2023 undefined 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 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, Page 6 of 13 Downloaded on : Sun Sep 17 00:43:52 IST 2023 NEUTRAL CITATION R/CR.RA/942/2023 ORDER DATED: 08/08/2023 undefined 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.
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 Page 7 of 13 Downloaded on : Sun Sep 17 00:43:52 IST 2023 NEUTRAL CITATION R/CR.RA/942/2023 ORDER DATED: 08/08/2023 undefined 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 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 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.
Page 8 of 13 Downloaded on : Sun Sep 17 00:43:52 IST 2023NEUTRAL CITATION R/CR.RA/942/2023 ORDER DATED: 08/08/2023 undefined "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 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."
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7. Section 12 of the JJ Act mandates that the juvenile, in a bailable or non-bailable offence, is arrested or detained or appears or brought before the Court, has to be released on bail with or without surety or place under the supervision of the Probation Officer or under the care of any fit institution of fit person but shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.
8. In case of Barun Chandra Thakur v. Master Bholu And Another, 2022 (0) AIJEL-SC 69520, the Hon'ble Apex Court while considering the provisions of Sections 15 and 18 of the Juvenile Justice (Care and Protection of Children) Act, 2015, has impressed upon the language used in Section 15 "ability to understand consequences of offence", and has laid down that the expression used is in plurality i.e., "consequences" of offence therefore, would not just Page 10 of 13 Downloaded on : Sun Sep 17 00:43:52 IST 2023 NEUTRAL CITATION R/CR.RA/942/2023 ORDER DATED: 08/08/2023 undefined be confined to immediate consequence offence or that occurrence of offence would only have its consequence upon victim but would also take within its ambit consequences which may fall upon not only victim as result of offence, but also on family of victim, on child, his family, and that too not only immediate consequences but also far reaching consequences in future. The Board while considering the preliminary assessment has to obtain the assistance of experienced psychologist and psycho- social worker or other expert to assess the ability to understand the consequences and also circumstances in which the alleged offence was committed.
9. The world acknowledges that children in conflict with law should be treated differently than adults in conflict with law. The reason is that the mind of the child has not attained maturity and it is still developing. Therefore, the child should be tested on different parameters and should be given an opportunity of being brought into the main stream if, during his juvenility, has acted in conflict with law. To understand psychology of the child, huge rounds Page 11 of 13 Downloaded on : Sun Sep 17 00:43:52 IST 2023 NEUTRAL CITATION R/CR.RA/942/2023 ORDER DATED: 08/08/2023 undefined of studies have been made not only recently but from old times and child psychology is a subject which is being studied world over and there are institutes specifically dealing with the developments and research on the said subject. The enactments dealing with children are enacted world over.
10. On going through the records of the case, it appears that all the male members of the family of the juvenile are in jail. The act of inflicting the blow on the deceased is attributed to one - Sarman. The charge-sheet suggests that the juvenile had caught the deceased; considering the Report of the Probation Officer specific clarity about the role of the juvenile is not reflected in the charge-sheet. The Report of the Probation Officer states that the juvenile was out for his work of sale of scrap and when he had gone in the evening, the incident has occurred, i.e. at about 6.30 pm on 10.10.2022.
11. Considering the role of the juvenile in conflict with law and when there are no criminal antecedents qua the juvenile, discretion is exercised in favour of Page 12 of 13 Downloaded on : Sun Sep 17 00:43:52 IST 2023 NEUTRAL CITATION R/CR.RA/942/2023 ORDER DATED: 08/08/2023 undefined the juvenile to enlarge him on bail.
12. In view of the observations and discussion made herein above, the present application succeeds and is accordingly, allowed. The orders impugned in this revision of the 'JJ Board' and the 'Children's Court', referred herein above, are set aside. The juvenile in conflict with law is ordered to be released on bail in connection with the aforesaid FIR on his mother, executing a personal bond in sum of Rs.10,000/- (Rupees Ten Thousand only) with a surety of like amount before the JJ Board.
13. The Probation Officer shall monitor the conduct of the juvenile and if necessary, send the juvenile for any behavior modification providing psychological or psychiatric support during trial. Direct service is permitted.
Sd/-
(GITA GOPI, J) CAROLINE Page 13 of 13 Downloaded on : Sun Sep 17 00:43:52 IST 2023