Gujarat High Court
Minor Adnan Ilyas Gurji Thro Munirabibi ... vs State Of Gujarat on 31 July, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/961/2023 ORDER DATED: 31/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 961 of 2023
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MINOR ADNAN ILYAS GURJI THRO MUNIRABIBI ILYAS GURJI
Versus
STATE OF GUJARAT
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Appearance:
UMARFARUK M KHARADI(8155) for the Applicant(s) No. 1,2,3
MS JIRGA JHAVERI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 31/07/2023
ORAL ORDER
1. The present revision application has been filed by the juveniles in conflict with law under section 102 of the Juvenile Justice (Care & Protection of Children) Act, 2015 (for short 'J.J. Act') praying for regular bail in connection with FIR No.11207048230437 of 2023 registered with Morva Police Station for the offences punishable under sections 5, 6A, 6B, 8(2), 8(4) and 10 of the Animal Preservation Act, Sections 11(1)(d), 11(1)(e) and 11(1)(f) of the Prevention of Cruelty to the Animals Act, Section Page 1 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined 429 of the IPC, Section 429 of the IPC and section 119 of the G.P. Act.
2. Mr.Umarfaruk M.Khardi, learned advocate for the applicants submitted that the bail application of three juvenile in conflict with law has been rejected by the Juvenile Justice Board (for short 'J.J. Board'), Godhra on 14.07.2023 as well as by the Children's Court on 19.07.2023.
2.1 Advocate Mr. Kharadi submitted that all three juveniles were falsely arraigned in the offence, which were alleged to have been committed by the elders as noted in the FIR. Mr. Kharadi submitted that the father of the applicant nos.1 and 2 is Manager in a fair price shop and also an agriculturist and the mother is a home maker. The applicant no.1 failed in 10th standard and now proposes to sit again in the Page 2 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined repeater examination, while the applicant no.2 has passed standard 12th examination in science stream and now preparing for NEET examination. Whereas, the father of the applicant no.3 is a casual labourer and the child had left his education in standard 9 during the Covid. 2.2 Advocate Mr. Kharadi submitted that according to probation officer's report the atmosphere in the village was serious and there were police 'Bandobast' around the house of the juvenile. Mr. Kharadi submitted that there is no role of the applicants, in conflicts with law to the alleged act, which the learned P.P. has considered to be a serious crime affecting the moral and social fabric of the society. Mr. Kharadi submitted that it was a religious festivals of Eid-ul-Adha, and the children were present in the village Morva, and twenty persons have been arraigned as accused, where the police Page 3 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined had even not individually investigated about the presence and role of the applicants.
3. Ms. Jirga Jhaveri, learned Additional Public Prosecutor, submitted that it is a serious offence, where the live cattle were slaughtered and about 335 kilogram beef was found from the place, and all the articles, even live stock, was there, and the case suggests that all the persons had gathered for the slaughter purpose, where the present juveniles were also there.
4. The probation officer has laid down the report before the J.J. Board and the same was also even seen by the Children's Court. The parents of applicant nos.1 and 2 could be considered as the person, who are well placed in the society as father being the Manager of a fair price shop and an agriculturist, would be considered as a person contributing for the Page 4 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined benefit of the society. The applicant no.3, on that day, had come to his maternal uncle's house and he is resident of Godhra. The overall report of the juvenile by the probation officer shows that the children are disciplined and have good relation with the family members. The neighbours had also reported good about the juveniles in conflict with law. Unfortunately, both the courts have failed to consider this aspect, which has been reflected in the probation officer report.
5. In case of Barun Chandra Thakur Vs. Master Bholu And Another, reported in 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 Page 5 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined i.e., "consequences" of offence therefore, would not just 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.
5.1 The world acknowledges that children in conflict with law should be treated differently than adults in conflict with law. The reason is Page 6 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined 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 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.
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 had an occasion to deal with the provisions of Section 12 of the Act and had explicitly laid down that Page 7 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined 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 CRRA 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 Page 8 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined allegedly 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 Page 9 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined 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, 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.Page 10 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023
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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 Page 11 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined 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 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 Page 12 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined 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 Page 13 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined 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 Page 14 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined 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 Page 15 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined Special Statute, i.e. JJ Act, 2015 which contains the specific provision for bail under Section 12 of JJ Act, 2015."
7. Nothing is reflected in the orders of the Courts of any order passed under section 15 of the J.J. Act. The learned Children Court appears to have not read the report of the probation officer, which shows that two of the children are still studying and one is in process of giving his examination, as referred, in standard-10. The Children Court notes that the children in conflict with law have neither been studying nor having any vocational training, and they are simply not doing anything, and the learned Judge without even referring to the report of the probation officer has noted that families seems to have not taking enough care of instilling good value and culture, and has noted that, if released on bail, would again start Page 16 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined falling into same trade and that would once again bring them into association with any known criminals.
8. It is very unfortunate that the children Court Judge has noted this fact without any supporting evidence. The fact of their coming at village Morva on the day of offence has not been noted. The applicant nos.1 and 2 are the children of a Manager of fair price shop, who is also an agriculturist. One of the child is a repeater of standard-10 and is preparing for exam; while applicant no.2 after passing of his 12th Standard in science stream, was preparing for NEET exam; while applicant no.3 is a resident of Godhra, he has studying up to standard 9 and on the day of offence, he was visiting his maternal uncle at village Morva.
8.1 The observation of the Children Court's Page 17 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined Judge is contrary to the report of the probation officer, while the Principal magistrate, J.J. Board, Godhra has noted about the fact in connection with juveniles, but relying on the surrounding circumstances of the tense atmosphere, as noted in the Social Investigation Report of the Probation Officer, the Court found that on account of the incident and the nature of offence, and when investigation was at crucial stage releasing the children in conflict with law may lead to tampering of evidence and also it would be danger to the life and body of the applicant.
8.2 The police is required to protect the life and body of a person. The child in conflict with law have not been involved in any of the alleged offence. The family background of two of the applicants does not suggest of any criminal activities, rather the father is Manager in a fair price shop and also is an agriculturist, who Page 18 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023 NEUTRAL CITATION R/CR.RA/961/2023 ORDER DATED: 31/07/2023 undefined is also made accused, and the other applicant was on that day visiting his maternal uncle on the festival of Eid-ul-Adha, the deployment of heavy police force, could not be considered as a hurdle upon the child to put them in observation home. The police has a bounden duty to protect each and every citizen. Unfortunately, it appears that police has not even investigated regarding the individual background of all the present applicants.
9. In the result, the present Criminal Revision Application succeeds and is allowed. Juveniles in conflict with law are ordered to be released on bail in connection with the FIR No.11207048230437 of 2023 registered with Morva Police Station on the applicants' father/mother executing a personal bond in sum of Rs.10,000/- each (Rupees ten thousand only) with surety of like amount each before the Children's Court. Page 19 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023
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10. The parents of the juveniles to ensure that the juveniles will pursue their academic career.
Direct service is permitted.
(GITA GOPI,J) Pankaj Page 20 of 20 Downloaded on : Sat Sep 16 23:40:09 IST 2023