Gujarat High Court
Pintu Sureshbhai Prajapati Thro ... vs State Of Gujarat on 16 June, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/8101/2019 JUDGMENT DATED: 16/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8101 of 2019
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 ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PINTU SURESHBHAI PRAJAPATI THRO SURESHBHAI PUNABHAI
PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
MR VIVEK V BHAMARE (6710) for the Applicant(s) No. 1
MR V N BHAMARE (1122) for the Applicant(s) No. 1
MR ANURAG R RATHOR (9315) for the Respondent(s) No. 2
MS MONALI BHATT, ADDL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 16/06/2021
ORAL JUDGMENT
1. RULE. Learned Additional Public Prosecutor Ms. Bhatt and learned advocate Mr. A.R. Rathor waive service Page 1 of 14 Downloaded on : Fri Sep 03 03:38:52 IST 2021 R/SCR.A/8101/2019 JUDGMENT DATED: 16/06/2021 of notice of rule on behalf of respondent Nos.1 & 2 respectively. With the consent of learned advocates on both the sides, the matter is heard today finally.
2. Whether trial proceedings of a child alleged to be in conflict with law and a person not a child, i.e. an adult, could be held jointly, is the question that has come up for consideration before this Court in this petition.
3. The facts in brief, as emerging from the record, are that in connection with an incident that took place on 22.09.2018, a complaint being C.R. No. I - 62 of 2018 came to be registered with Vagdod Police Station, District Patan against the petitioner herein and other accused persons on 23.09.2018 for the offences punishable under Sections 302, 506(2), 201 and 34 of IPC and Section 135 of the Gujarat Police Act. In this matter, a child found to be in conflict with law was apprehended and produced before the Juvenile Justice Board, Patan (for short, "the Board") and the case was numbered as Juvenile Case No.140 of 2018. The offence alleged was found to be heinous. The Board made preliminary assessment under Section 15 of the Act and thereafter, passed the order dated 14.12.2018, by which the trial of the child was ordered to be transferred to the competent Children's Court at Patan under the provisions of Section 15 read with Section 18(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, "the Act").
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4. However, in the proceedings of Sessions Case No.90 of 2018 relating to the co-accused named in the same complaint, the concerned Additional Public Prosecutor preferred application Exhibit-6 seeking consolidation of Sessions Case No.90 of 2018 and Sessions Case No.06 of 2019 relating to the petitioner - child in conflict with law. By order dated 25.06.2019 passed below application (Exhibit-6) in Sessions Case No.90 of 2018, the Court of learned Additional Sessions Judge, Patan ordered consolidation of the trial of the case of the petitioner, which was numbered as Sessions Case No.06 of 2019 with that of co-accused (Sessions Case No.90 of 2018) and recording of common evidence on the ground that both the Sessions Cases arise out of one and the same alleged incident. Being aggrieved by the above order, the present petition has been preferred.
5. Learned advocate Mr. Vivek Bhamare appearing for the petitioner - child in conflict with law submitted that the order passed by the Court below, which is not a designated Court, is illegal, without jurisdiction and contrary to the provisions of the Act since no joint proceedings of a child in conflict with law and person/s not a child could be held, even if the cases arise out of one and the same alleged incident. He drew attention of the Court to the provision of Section 23 of the Act to make good his submission. It was further submitted that Page 3 of 14 Downloaded on : Fri Sep 03 03:38:52 IST 2021 R/SCR.A/8101/2019 JUDGMENT DATED: 16/06/2021 even if a child in conflict with law is alleged to have committed a heinous crime, he could not be tried with the co-accused, who is not a child.
6. Learned advocate Mr. A.R. Thakor appearing for respondent No.2 defended the impugned order by submitting that the de-facto complainant would have to bear the burden of two separate trial as he would be subjected to cross-examination twice, which would expose him to the danger of contradiction and inconsistency in his evidence apart from the trauma of facing multiple proceedings arising out of the same incident. He submitted that a just trial would be a requirement to avoid conflict of findings.
7. Learned Additional Public Prosecutor Ms. Bhatt contended that while considering the case of a child in conflict with law, the objects and reasons of the Act have to be kept in mind and thereby, submitted that appropriate orders may be passed in the facts and circumstances of the case.
8. Before we advert to the merits of the case, it would be beneficial to understand the object and intent of the Act of 2015. The increasing cases of crimes committed by children in the age group of 16-18 years made it evident that the provisions of the earlier Act, i.e. The Juvenile Justice (Care and Protection of Children) Act, 2000 were Page 4 of 14 Downloaded on : Fri Sep 03 03:38:52 IST 2021 R/SCR.A/8101/2019 JUDGMENT DATED: 16/06/2021 ill-equipped to tackle child offenders in the said age group. Therefore, the need was felt to repeal the earlier Act and to re-enact a comprehensive legislation in the form of the existing Act.
10. The Scheme of the present Act envisages proper care, protection, development, treatment and social re- integration of children in difficult circumstance by adopting a child-friendly approach keeping in view the best interest of the child. To understand the Scheme in a better perspective, it would be beneficial to refer to certain definitions provided under the Act. Section 2(12) defines "child" as a person who has not completed eighteen years of age. Section 2(13) defines "child in conflict with law" as a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. Section 2(15) gives meaning of "child friendly" as any behaviour, conduct, practice, process, attitude, environment or treatment that is humane, considerate and in the best interest of the child. Section 2(20) defines "Children's Court" as a Court established under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or a Special Court under the Protection of Children from Sexual Offences Act, 2012 (32 of 2012) , wherever existing and where such courts have not been designated, the Court of Sessions having jurisdiction to try offences under the Act.
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11. In this case, there is no quarrel on the issue that the petitioner - child in conflict with law had completed 16 years of age but was below 18 years of age at the time when the alleged offence was committed and therefore, the petitioner was produced before the Board. As the petitioner - child in conflict with law was alleged to have committed a heinous offence of murder, the Board carried out a preliminary assessment, as provided under Section 15 of the Act.
12. It would be relevant to note that Section 15 of the Act was enacted with a view to tackle child offenders committing heinous offences in the age group of 16-18 years. The law has categorized offences as 'heinous', 'petty' and 'serious' by defining them under Sections 2(33), 2(45) and 2(54) respectively. The Board is given the option to transfer cases of 'heinous' offences committed by such children to a Children's Court (Court of Session), who, after conducting preliminary assessment, may pass an order for trial of such child as an adult.
13. In the present case, in order to carry out a preliminary assessment under Section 15 of the Act, the Board has sought opinion from Dharpur Medical College, Patan regarding the mental condition of the petitioner - child in conflict with law, which had opined that the child Page 6 of 14 Downloaded on : Fri Sep 03 03:38:52 IST 2021 R/SCR.A/8101/2019 JUDGMENT DATED: 16/06/2021 in conflict with law was physically as well as mentally capable of committing the alleged offence and was also mentally stable to understand the consequences of his criminal act. On the basis of the said medical opinion, the Board came to the conclusion that the trial of the child is needed to be conducted as an adult and accordingly, passed the order dated 14.12.2018 under Section 15 read with Section 18(3) of the Act, by which the trial of the case of the petitioner - child in conflict with law was transferred to the competent Children's Court at Patan.
14. At this stage, it would be beneficial to have a glance at the powers of the Children's Court constituted under the Act.
"19. Powers of Children's Court.-
(1) After the receipt of preliminary assessment from the Board under section 15, the Children's Court may decide that --
(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) and pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;
(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of section 18.Page 7 of 14 Downloaded on : Fri Sep 03 03:38:52 IST 2021
R/SCR.A/8101/2019 JUDGMENT DATED: 16/06/2021 (2) The Children's Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker.
(3) The Children's Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:
Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.
(4) The Children's Court shall ensure that there is a periodic follow up report every year by the probation officer or the District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill-treatment to the child in any form.
(5) The reports under sub-section (4) shall be forwarded to the Children's Court for record and follow up, as may be required."
21. Order that may not be passed against a child in conflict with law.-
No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Page 8 of 14 Downloaded on : Fri Sep 03 03:38:52 IST 2021 R/SCR.A/8101/2019 JUDGMENT DATED: 16/06/2021 Indian Penal Code (45 of 1860) or any other law for the time being in force."
14.1 A plain reading of Section 19 of the Act reveals the object and purpose of the Act. Once the preliminary assessment under Section 15 of the Act is received from the Board, the concerned Children's Court is vested with the powers to decide whether (i) there is need to conduct the trial of the child as as adult, as per the provisions of the Code of Criminal Procedure or (ii) there is no need to conduct the trial of the child as an adult, in which case, it may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of Section 18 of the Act. Section 19 of the Act provides for placing the child in a "place of safety" both during and after the trial till the child attains the age of 21 years and thereafter, to be transferred to a jail. It is clear from the above provision that while Section 19 of the Act empowers the concerned Children's Court to decide whether the trial of the child is required to be conducted as an adult or not, it also casts a duty upon the Children's Court to ensure the over-all well being and mental health of the child in conflict with law till he attains the age of 21 considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere. The provision lays special emphasis on reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification Page 9 of 14 Downloaded on : Fri Sep 03 03:38:52 IST 2021 R/SCR.A/8101/2019 JUDGMENT DATED: 16/06/2021 therapy and psychiatric support to the child in conflict with law. Thus, the Act of 2015 came to be re-enacted with the larger object of ensuring the overall well-being of a child in conflict with law. The Juvenile Justice (Care and Protection of Children) Model Rules, 2016 works as an aid for the proper administration of the provisions of the Act. Rule 13 of the said Rules lays down the procedure to be followed by the Children's Court and the Monitoring Authorities.
15. Section 23 of the Act expressly bars joint proceedings of a child in conflict with law with a person not a child. For ready reference, the said provision is reproduced hereunder:-
"23. No joint proceedings of child in conflict with law and person not a child. -
(1) Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, there shall be no joint proceedings of a child alleged to be in conflict with law, with a person who is not a child."
15.1 In the instant case, on the application (Exhibit-
6) preferred by the concerned Additional Public Prosecutor in Sessions Case No.90 of 2018 relating to the co-accused named in the same FIR, the Court of learned Additional Sessions Judge, which is not a Designated Page 10 of 14 Downloaded on : Fri Sep 03 03:38:52 IST 2021 R/SCR.A/8101/2019 JUDGMENT DATED: 16/06/2021 Court under the Act, passed the impugned order of trial trial of Sessions Case No.90 of 2018 relating to co- accused persons, who were adults, with Sessions Case No.06 of 2019 relating to the petitioner - child in conflict with law, by consolidating the cases, for the purpose of recording of common evidence solely on the premise that both the Sessions Cases arise out of the same alleged offence. Such order passed by the Court below is illegal, without jurisdiction and contrary to the provisions of the Act. Even if more than one case is registered in connection with a single alleged offence and the evidence in all the cases may be common, no case involving a child who is alleged to be in conflict with law, could be clubbed or consolidated with the cases where the co-accused in the same alleged offence is not a child. The case of the child alleged to be in conflict with law has to be tried separately and independently under the provisions of the Act of 2015. While passing the impugned order of joint trial, the Court below has failed to take into consideration the fact that the case of the child in conflict with law had been transferred to the Children's Court having independent jurisdiction to try such offence; whereas, the case of the co-accused, who are adults, had been instituted on police report and was triable exclusively by the Court of Sessions on its committal by the Magisterial Court. Thus, under the scheme of the Act, in case a child in conflict with law, who is alleged to have committed a heinous offence, is below the age of 16 years on the date Page 11 of 14 Downloaded on : Fri Sep 03 03:38:52 IST 2021 R/SCR.A/8101/2019 JUDGMENT DATED: 16/06/2021 of commission of such offence, then his case shall be disposed of by the Board; and, in case a child in conflict with law is above the age of 16 years at the relevant time, then a preliminary inquiry has to be initiated in terms of Section 15 of the Act and thereafter, an order of transfer of the case to the Children's Court is passed. Whereas, in the case of an adult co-accused of the same alleged incident, the matter would be committed to the Court of Sessions by the Magisterial Court.
15.2 The order dated 25.06.2019 passed by the Court below is not only dehors the provisions of Section 23 of the Act, but is also without jurisdiction. This provision could be better understood if one makes a reference to Section 19(1)(ii) of the Act, which provides that if the Children's Court comes to the conclusion that there is no need for trial of the child in conflict with law as an adult, then it may conduct an inquiry as a Board and may pass appropriate orders in accordance with the provisions of Section 18 of the Act. Section 23 of the Act clarifies that despite anything contained in Section 223 of the Code of Criminal Procedure or in any other law in force, there shall be no joint proceedings of a child in conflict with law and an adult.
16. It is a fundamental principle of statutory interpretation that the words of a statute should be read in their entire context and in their grammatical and Page 12 of 14 Downloaded on : Fri Sep 03 03:38:52 IST 2021 R/SCR.A/8101/2019 JUDGMENT DATED: 16/06/2021 ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature. In the case of Sankar Ram and Co. V. Kasi Nasicker and others, (2003) 11 SCC 699, it has been held thus :-
"7. It is a cardinal rule of construction that normally no word or provision should be considered redundant or superfluous in interpreting the provisions of a statute. In the field of interpretation of statutes, the Courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute should have effect. It may not be correct to say that a word or words used in a statute are either unnecessary or without any purpose to serve unless there are compelling reasons to say so looking to the scheme of the statute and having regard to the object and purpose sought to be achieved by it."
17. Considering the facts of the case in light of the provisions of the Act, this Court is of the opinion that the Court below has committed serious error in law in ordering joint trial of the two cases. Hence, the same deserves to be quashed and set aside.
18. For the foregoing reasons, the petition is allowed. The impugned order dated 25.06.2019 passed by the Court of learned Additional Sessions Judge, Patan in Sessions Case No.90 of 2018 below application (Exhibit-
6) is quashed and set aside. The proceedings of Sessions Case No.06 of 2019 relating to the petitioner - child in Page 13 of 14 Downloaded on : Fri Sep 03 03:38:52 IST 2021 R/SCR.A/8101/2019 JUDGMENT DATED: 16/06/2021 conflict with law, along with its record and proceedings, is directed to be transferred to the competent Children's Court at Patan for trial under the provisions of the Act within a period of One Month from the date of receipt of writ of this order. The trials of both Sessions Case No.90 of 2018 and Sessions Case No.09 of 2019 arising out of the same FIR shall be conducted separately. With the above directions, the petition stands disposed of. Rule is made absolute. Registry to send a writ of this order to the concerned trial Court forthwith by E-mail / Fax.
( GITA GOPI, J ) PRAVIN KARUNAN Page 14 of 14 Downloaded on : Fri Sep 03 03:38:52 IST 2021