Gujarat High Court
Nileshbhai Vitthalbhai Vasava A ... vs State Of Gujarat on 13 October, 2020
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/12200/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12200 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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NILESHBHAI VITTHALBHAI VASAVA A JUVENILE THRO SAVITABEN
VITTHALBHAI VASAVA
Versus
STATE OF GUJARAT
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Appearance:
MR MUHAMMAD QUASIM VORA(10344) for the Applicant(s) No. 1
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/10/2020
ORAL JUDGMENT
Rule. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent State.
Page 1 of 11 Downloaded on : Wed Oct 14 00:35:54 IST 2020R/CR.MA/12200/2020 JUDGMENT
1. The cause-title of the application states that it has been preferred under section 439 of the Code of Criminal Procedure (hereinafter referred to as "the Code") for regular bail after the filing of charge-sheet.
The applicant, who is the mother of child in conflict with law, has challenged the order dated 06.08.2020 passed by the Court of learned 6th Additional Sessions Judge, Bharuch in Criminal Misc. Application No.437 of 2020, which was also filed under section 439 of the Code for regular bail after the filing of charge-sheet in connection with the complaint being FIR No.11199016200084 of 2020 registered with Dahej Police Station, Bharuch for offences punishable under sections 302, 201 and 120B of IPC.
Initially, the child in conflict with law had preferred an application for bail after the filing of charge-sheet before the child Justice Board (hereinafter referred to as "the Board"); however, the same was rejected vide order dated 17.06.2020. Thereafter, the child in conflict with law preferred Criminal Misc. Application No.437 of 2020 under section 439 of the Code before the Sessions Court, which came to be rejected by way of the impugned order dated 06.08.2020 and hence, the applicant herein has prayed for quashing and setting aside the said order along with the relief of bail. Therefore, essentially, the present application would be a revision application challenging the orders passed by the Board as also by the Sessions Court.
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2. The facts in brief, as emerging from the impugned complaint, are as under;
On 24.02.2020, the original complainant, Dilipbhai Chandubhai Gohil, along with his wife, went to Denva Village for finding a match for the daughter of the co-brother of the complainant. They returned home at about 1615 hrs. Around that time, Ajay, the elder son of the complainant, also returned home from work. Thereafter, Ajay went to deliver milk to somebody on his motor-cycle. When he didn't return home even after about half an hour, the complainant and other family members carried out search for him but to no avail. On the next day, i.e. on 25.02.2020, at around 2230 hrs., the motor-cycle of Ajay was found near a pond. A missing complaint came to be registered with Dahej Police Station and search was carried out. On 27.02.2020 the dead body of Ajay was found near a lake and the impugned complaint came to be registered. Necessary investigation was carried out and statements of witnesses were recorded. At the end of investigation, the child and other accused person came to be arrested. For the child, who was 17 years 06 months and 23 days old on the date of commission of the alleged offence, an application for bail after the filing of charge-sheet under section 12 of the child Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "the Act") was moved before the Board. The said bail application came to be rejected vide order dated 17.06.2020.
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3. Being dissatisfied with the order passed by the Board, the child in conflict with law preferred an application under section 439 of the Code being Criminal Misc. Application No.437 of 2020 before the District and Sessions Court, Bharuch. After hearing both the sides, the Court below rejected the application, vide impugned order dated 06.08.2020. Hence, this application.
4. Mr. Vaibhav Sheth, learned advocate appearing for the child in conflict with law, submitted that the allegations made in the complaint are false and baseless and do not disclose any prima facie case against the child in conflict with law. It was submitted that even if the complaint and the charge-sheet are read in their entirety, the same does not attribute any overt act or speak about the involvement of the child in conflict with law with the alleged offence in any manner whatsoever. Further, the child in conflict with law was not named as an accused in the impugned complaint and has been arraigned only on the basis of the statement of co-accused.
4.1 It was further submitted that the Court below has not appreciated the provisions of section 12 of the Act in its proper perspective. As per his submission, the grant of bail is the invariable rule for a child who is alleged to be in conflict with law. Both the Courts below have not assigned any reasons while denying bail to the child in conflict with law and the sole ground on which both the Courts below Page 4 of 11 Downloaded on : Wed Oct 14 00:35:54 IST 2020 R/CR.MA/12200/2020 JUDGMENT denied bail to the child in conflict with law is the report of the Probation Officer wherein, it was stated that there is a possibility that the child in conflict with law may again fall in bad company if he is released on bail. However, no material was produced by the Probation Officer to substantiate such claim. Hence, the very basis on which the Courts below denied bail to the child in conflict with law is erroneous.
4.2 It was contended that the Courts below have swayed by the fact that the child in conflict with law is alleged to have committed a heinous crime of murder and appears to have fallen back on the last exception of the proviso that -
"..the person's release would defeat the ends of justice..". It was contended that the clause authorizing detention or denial of bail on the ground that "it would defeat the ends of justice" does not empower the Board or the Court in appeal / revision to look into the merit of the charge or gravity of offence. It was, accordingly, urged that the Courts below has committed serious error in rejecting the bail application of the child in conflict with law.
5. Mr. Pranav Trivedi, learned Additional Public Prosecutor, opposed the application and submitted that there is cogent and sufficient evidence on record to connect the child in conflict with law with the alleged offence. The learned Additional Public Prosecutor drew attention of the Court to the observations made by the Court below, to Page 5 of 11 Downloaded on : Wed Oct 14 00:35:54 IST 2020 R/CR.MA/12200/2020 JUDGMENT submit that the Board as also the Court below refused to release the child in conflict with law on bail mainly on the ground that the child in conflict with law would fall in bad company if he is released on bail. Such conclusion was arrived at on the basis of the report filed by the Probation Officer. It was, accordingly, urged that no discretion may be exercised in favour of the applicant.
6. Heard learned advocates on both the sides and perused the material on record. The Act of 2015 was enacted to give tooth as also a deterrent effect to the earlier Act of 2000 in order to curb the commission of heinous offences by children. It classifies offences as "petty", "serious" and "heinous", as defined under sections 2(45), 2(54) and 2(33) respectively. The increasing cases of crimes committed by children between the age group of 16 - 18 years gave the feeling that the provisions of the old Act of 2000 were ill-equipped or liberal, particularly when, criminal cases of children of this age group, who were involved in certain categories of heinous offences, were on the rise. The Act of 2015 makes an exception to the applicability of the benevolent legislation to the child in conflict with law, whose heinousness of crime is to be inquired into during the preliminary assessment by the Board with the assistance of experienced psychologist or psycho-social workers or other experts. The classification for the inquiry is provided in clause (f) of sub-section (5) of section 14 of the Act, which reads thus;
Page 6 of 11 Downloaded on : Wed Oct 14 00:35:54 IST 2020R/CR.MA/12200/2020 JUDGMENT "14. Inquiry by Board regarding child in conflict with law.-
(1) ...
(2) ...
(3) ...
(4) ...
(5) The Board shall take the following steps to ensure
fair and speedy inquiry, namely -
(a) to (e) ...
(f) inquiry of heinous offences -
(i) for child below the age of sixteen years as on
the date of commission of an offence shall be disposed of by the Board under clause (e).
(ii) for child above the age of sixteen years as on the date of commission of an offence shall be dealt with in the manner prescribed under section 15.
7. A plain reading of the above provision makes it clear that though the Act is a benevolent legislation, it makes a class apart for heinous offences. If the child is below the age of sixteen years as on the date of commission of an heinous offence, inquiry shall be disposed of by the Board as per clause (e) thereof and where the child is above the age of sixteen years as on the date of commission of an offence, he shall be dealt with in the manner prescribed under section
15. Sub-section (1) of section 15 provides for preliminary assessment into heinous offences by the Board having Page 7 of 11 Downloaded on : Wed Oct 14 00:35:54 IST 2020 R/CR.MA/12200/2020 JUDGMENT regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence; and may pass an order in accordance with the provisions of sub-section (3) of section
18.
8. It may be noted that the gravity of offence was not considered a relevant factor for adjudicating the issue of grant or denial of bail to a child prior to the enactment of the Act of 2015, as the interest of the child was placed on a higher footing than the interest of the society. A conjoint reading of the provisions of sections 14 and 15 of the Act would make it clear that inquiry into heinous offences by a child below the age of sixteen years as on the date of commission of an offence shall be disposed of by the Board under clause (e) of section 14(5) by following the procedure for trial in summons cases under the Cr.P.C. whereas, in cases of child above the age of sixteen years as on the date of commission of an offence, after conducting such preliminary assessment, the Board while passing an order in accordance with section 18(3) of the Act, may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences, if the Board comes to the conclusion that there is a need for trial of the said child as an adult. Thus, gravity of offence has been considered as a relevant factor for deciding the aspect of bail for a child between the age group of 16 - 18 years and Page 8 of 11 Downloaded on : Wed Oct 14 00:35:54 IST 2020 R/CR.MA/12200/2020 JUDGMENT who is alleged to have committed a heinous crime. For such purpose, the Board as also the Children's Court could also take assistance of the provisions of the child Justice (Care and Protection of Children) Model Rules, 2016.
9. At this stage, a reference to the provision of sub-clause (1) of section 12 of the Act is apposite;
"12. Bail to a person who is apparently a child alleged to be in conflict with law.-
(1) When any person, who is a apparently a child and is alleged to have committed a bailable or non-
bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, 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 with or without surety or placed under the supervision of a probation officer or under the care of any fit person:
Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into 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, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision."
9.1 In the present case, there is no controversy regarding the fact that the child in conflict with law was above the age of 16 years and below 18 years at the time when the alleged offence was committed. He is alleged to have committed a heinous offence of murder. The material on record shows Page 9 of 11 Downloaded on : Wed Oct 14 00:35:54 IST 2020 R/CR.MA/12200/2020 JUDGMENT the conduct, modus operandi of the crime and the evil mind of the child in conflict with law, who with the co-accused, in a well planned design, kept a watch on the movement of the deceased and under conspiracy, lured the deceased near the pond, after strangulating to death, disposed of the dead body in the pond. The gravity of offence is certainly a relevant factor and it serves as a guide along with other factors for adjudicating the issue of bail. The offence alleged to have been committed by the child in conflict with law is heinous in nature and falls within the definition of "heinous offences", as defined in section 2(33) of the Act, which "includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more".
9.2 In the considered opinion of this Court, the crime alleged to have been committed by the child in conflict with law would not lend him the benefit of benevolent legislation for being a child, but would render him liable to be tried as an adult before the Children's Court. Hence, the suggestion put-forth by learned advocate Mr. Sheth that a child in conflict with law could not be denied bail even with reference to the gravity of offence is not tenable.
9.3 The Board appears to have rejected the bail application filed by the child in conflict with law in view of the report submitted by the Probation Officer, which stated that a possibility could not be ruled out that, if released on bail, Page 10 of 11 Downloaded on : Wed Oct 14 00:35:54 IST 2020 R/CR.MA/12200/2020 JUDGMENT the child in conflict with law would again be in bad company. In my opinion, both the Courts below were completely justified in rejecting the bail application filed by the child in conflict with law looking to the heinous crime alleged to have been committed by the child in conflict with law. Considering the facts and circumstances of the case and the provisions of the Act, this Court is of the opinion that the Courts below were completely justified in rejecting the bail application filed by the child in conflict with law.
Hence, this Court finds no reasons to entertain this application.
10. For the foregoing reasons, the application is rejected. Rule is discharged.
(GITA GOPI, J) Pallavi / Pravin Page 11 of 11 Downloaded on : Wed Oct 14 00:35:54 IST 2020