Gujarat High Court
Dhruv Yogeshbhai Shinde Through Yogesh ... vs State Of Gujarat on 28 February, 2023
Author: Gita Gopi
Bench: Gita Gopi
R/CR.RA/1275/2022 ORDER DATED: 28/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1275 of 2022
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DHRUV YOGESHBHAI SHINDE THROUGH YOGESH BHPENDRARAO
SHINDE
Versus
STATE OF GUJARAT
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Appearance:
MR. NISARG N JAIN(8807) for the Applicant(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 28/02/2023
ORAL ORDER
1. This revision application under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (Act, 2015) is moved by the applicant, a minor aged 17 years, through his father praying for to enlarge him on regular bail in connection with FIR being C.R. No. 11196004220608 of 2022, registered with Gotri Police Station, Vadodara City for the offences punishable under Sections 394, 395, 397, 452 and 114 of the Indian Penal Code, 1860 (IPC) and Section 25(1) of the Arms Act, 1959.
2. Heard, learned advocate Mr. Nisarg Jain for the applicant and learned Additional Public Prosecutor Ms. Shruti Pathak for the Page 1 of 10 Downloaded on : Sat Mar 04 20:34:29 IST 2023 R/CR.RA/1275/2022 ORDER DATED: 28/02/2023 respondent - State.
2.1 Mr. Jain for the applicant submitted that juvenile had preferred bail application before the Juvenile Justice Board (the Board), which came to be rejected and thereafter, had preferred Criminal Appeal No. 372 of 2022 before the Children's Court at Vadodara, which too, was rejected vide order dated 17.11.2022. It is further submitted that it was alleged that when the complainant and his wife were at home, some persons entered into their house and robbed their ornaments worth Rs.16,90,000/-. Mr. Jain would submit that nothing was discovered or recovered at the instance of the juvenile. Further, Social Report of the juvenile clarifies that there is no past criminal history. It is further submitted that at present, the juvenile is pursuing his studies and has to appear in board exams in March 2023. Moreover, it is submitted that both the Courts have failed to take into consideration the object of the Act, 2015 so as to consider the prayer for grant of bail under Section 12 of the Act, 2015 as amended by Juvenile Justice (Care and Protection of Children) Act, 2021.
2.2 Learned advocate Mr. Jain for the applicant further submitted that the juvenile resides with his parents and elder Page 2 of 10 Downloaded on : Sat Mar 04 20:34:29 IST 2023 R/CR.RA/1275/2022 ORDER DATED: 28/02/2023 sister and is not a threat to the society and he may be put under supervision of Probation Officer who can guide him and submitted that in the case on hand, there is no direct allegation of any actual robbery committed by the juvenile and the only allegation is to the effect that he had accompanied the other adult accused persons. Accordingly, it is urged that the juvenile may be enlarged on regular bail.
3. As against this, learned Additional Public Prosecutor Ms. Pathak referred to and relied upon a decision of the Apex Court in Om Prakash v. State of Rajasthan and Anr., (2012) 5 SCC 201 (more particularly, paragraph 22, 23 and 33) to contend that manner of commission of crime is required to be considered even in case of a juvenile who is above 16 years of age and when order under Section 15 of Act, 2015 has been passed to conduct his trial as that of an adult. Paragraph 22, 23 and 33 are extracted hereunder:
"22. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled for this special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a Page 3 of 10 Downloaded on : Sat Mar 04 20:34:29 IST 2023 R/CR.RA/1275/2022 ORDER DATED: 28/02/2023 casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.
23. Hence, while the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority. Under such circumstance, the medical evidence based on scientific investigation will have to be given due weight and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused. The matter however would stand on a different footing if the academic certificates ad school records are alleged to have been with held deliberately with ulterior motive and authenticity of the medical evidence is under challenge by the prosecution.
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33. Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him."Page 4 of 10 Downloaded on : Sat Mar 04 20:34:29 IST 2023
R/CR.RA/1275/2022 ORDER DATED: 28/02/2023 3.1 While, learned advocate Mr. Jain for the applicant has referred to the decision of this Court in 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), to submit that even in case where a juvenile was allegedly involved in a murder with allegation of criminal conspiracy, had been granted bail by this Court, adding to the submission that the object behind Section 12 of the Act, 2015 is required to be considered as Section 439 of Criminal Procedure Code, 1973 (CrPC) is not applicable in case of grant or denial of bail to the child alleged to be in conflict with law. Paragraphs 15 to 20 since relevant, are extracted hereunder:
"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 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 Page 5 of 10 Downloaded on : Sat Mar 04 20:34:29 IST 2023 R/CR.RA/1275/2022 ORDER DATED: 28/02/2023 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, 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 :-Page 6 of 10 Downloaded on : Sat Mar 04 20:34:29 IST 2023
R/CR.RA/1275/2022 ORDER DATED: 28/02/2023 "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 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 Page 7 of 10 Downloaded on : Sat Mar 04 20:34:29 IST 2023 R/CR.RA/1275/2022 ORDER DATED: 28/02/2023 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 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."
4. As per the report of the Probation Officer, the parents had Page 8 of 10 Downloaded on : Sat Mar 04 20:34:29 IST 2023 R/CR.RA/1275/2022 ORDER DATED: 28/02/2023 taken care to see that juvenile does not fall in bad company of adults and therefore, had shifted their house. The report suggests that in the house, he remains in discipline manner; there is no evidence on record of any recovery of any stolen articles which alleged to have been robbed from the complainant and his wife; the juvenile is yet pursuing his studies. He is coming from a family whose father is having job in a textile shop and the mother is a homemaker and elder sister is studying. The Court does not find any reason for retaining the juvenile in Observation Home when parents can monitor his conduct. Further, the juvenile can also be placed under the direct monitoring of the Probation Officer.
5. In the result, this revision application succeeds and is allowed accordingly. The juvenile in conflict with law is ordered to be released on regular bail in connection with the aforesaid FIR upon his father's executing a personal bond in the sum of Rs.10,000/- with a surety of the like amount before the Children's Court.
5.1 It is directed that the Probation Officer shall monitor the conduct of the juvenile in conflict with law and shall quarterly submit the report before the Children's Court till completion of Page 9 of 10 Downloaded on : Sat Mar 04 20:34:29 IST 2023 R/CR.RA/1275/2022 ORDER DATED: 28/02/2023 the trial. Moreover, if the Probation Officer considers any necessity of sending the juvenile for any behaviour modification then necessary therapy and psychiatric support be provided to the juvenile in conflict with law.
5.2 The parents of the juvenile to ensure that the juvenile will pursue his academic career.
5.3 Rule is made absolute accordingly. Direct service is permitted.
[ Gita Gopi, J. ] hiren /89 Page 10 of 10 Downloaded on : Sat Mar 04 20:34:29 IST 2023