Bombay High Court
The State Of Maharashtra vs Shadab Tabarak Khan on 16 March, 2022
Author: M.G.Sewlikar
Bench: M.G.Sewlikar
{1} CRI RA 90 OF 2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.90 OF 2021
. The State of Maharashtra
Through : Offe e fharge of A ti
Terrorism Squad, Aura gabad U it,
Aura gabad. ..Petitio er
(Orig. Appella t)/
Applifa t
VERSUS
. Shadab Tabarak Kha
Age: 17 years, Offu.: Stude t,
R/o. Care a d Proteftio Home,
Aura gabad. ..Respo de t
...
Spefial Publif Prosefutor for Applifa t : Shri Ma gesh R.Jadhav
Advofate for Respo de t : Smt.S.Y.Firdose h/f.
Shri Md.emra Kha M.esmail Kha
...
CORAM : M.G.SEWLIKAR, J.
RESERVED ON : 17th January, 2022
PRONOUNCED ON : 16th March, 2022
JUDGMENT :-
1. This revisio is preferred by the State of Maharashtra through the Offer e fharge, A ti Terrorism Squad, Aura gabad U it, Aura gabad, agai st the Judgme t a d order passed by the lear ed Additio al Sessio s Judge, Aura gabad o 25 th May 2021 i Crimi al Appeal No.2 of 2021 fo frmi g the order of the lear ed Juve ile Justife Board, Aura gabad, dismissi g applifatio Exhibit 25 i J.C.No.160 of 2019 by its order dated 1 st Oftober 2019.
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{2} CRI RA 90 OF 2021
2. Fafts leadi g to this applifatio are that Vijaya t
Sha karlal Jaiswal, Offer i -fharge of the A ti Terrorist Squad U it, Aura gabad, refeived sefret i formatio i the last week of August 2018 that some perso s had e gaged themselves i terrorist aftivities i Mumbra a d Aura gabad areas. He sefretly obtai ed the ame, addresses a d fell pho e umbers of the suspefts. He put suspefts u der surveilla fe. From the i formatio refeived, it revealed that o e Mohsi Kha a d his assofiates had established a group "Ummat E Mohammadia" a d some trusted a d like mi ded perso s were made members of the group. et further revealed that some members of the said group were i fo taft with the ha dlers of foreig terrorist orga izatio s. Vijaya t Sha karlal Jaiswal obtai ed fell pho es a d CDR reford of sufh suspefts. O the basis of i formatio follefted by him, Shri Jaiswal was suspefti g that there was stro g possibility that suspefts would farry out some terrorist aftivities i Mumbai. Affordi gly, he formed four teams. These teams we t to difere t lofatio s a d fo dufted the house searfh of suspefts i the prese fe of Pa fhas, spefial experts a d seized the artifles like ha d gloves, plastif bottles fo tai i g liquor bottle alo gwith fards, mobile pho es, mouse killi g medifi e of Comma do Compa y, pestifides a d sharp weapo s etf.
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{3} CRI RA 90 OF 2021
3. O the arrest of affused No.1, it was revealed that o e
Zama had made some poiso ous substa fe whifh was to be
added i food at a fu ftio or i the water so as to fause mass
murder. This poiso ous substa fe was ha ded over to Salma a d Zama . They were direfted to use fafe mask a d ha d gloves while ha dli g the said substa fe. Thus, affordi g to the prosefutio , affused Nos.1 to 9 were i doftri ated with the ideology of terrorist orga izatio eSeS. They hatfhed a frimi al fo spirafy to farry out the terrorist attafk with the use of poiso ous substa fe a d explosive substa fe i Mumbai, Aura gabad a d other plafes. O these allegatio s, o 22 d Ja uary 2019, he lodged report with the Polife Statio A ti Terrorism Squad (ATS), Kala Ghoda Chowk, Mumbai a d ofe fe fame to be registered vide Crime No.1 of 2019 u der Seftio 120-B of the e dia Pe al Code (ePC) read with Seftio s 18, 20, 38 of the U lawful Aftivities (Preve tio ) Aft, 1976 (herei after referred to as "the UAPA") read with Seftio 135 of the Maharashtra Polife Aft.
4. Respo de t bei g a fhild i fo fift with law (herei after referred to as "CCL") o his arrest o 18 th Defember 2019, he was produfed before the Juve ile Justife Board (herei after referred to as "JJB").
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{4} CRI RA 90 OF 2021
5. The applifa t State fled applifatio Exhibit 25 for
prelimi ary assessme t of CCL a d the CCL be tra sferred to Childre 's Court for trial as a adult. Respo de t CCL fled Say a d resisted the applifatio . The lear ed JJB, after heari g both the sides, rejefted the applifatio vide its order dated 1 st Oftober 2019.
6. Bei g aggrieved by the order dated 1st Oftober 2019, applifa t State preferred Crimi al Appeal No.2 of 2021. Lear ed Additio al Sessio s Judge, Aura gabad by his order dated 25 th May 2021 dismissed the appeal. He fe, this revisio .
7. Shri M.R.Jadhav, lear ed Spefial Publif Prosefutor for the applifa t State submitted that the U lawful Aftivities (Preve tio ) Aft, 1976 is a spefial Aft a d a Sfheduled Aft. e vestigatio was do e by the Natio al e vestigatio Age fy (N.e.A.). Therefore, respo de t CCL ought to have bee tried as a adult by the lear ed JJB a d the lear ed Additio al Sessio s Judge.
8. Before adverti g to the questio i volved i this revisio , some releva t def itio s will have to be looked i to. Seftio 2(12) of the Juve ile Justife (Care a d Proteftio of Childre ) Aft, ::: Uploaded on - 17/03/2022 ::: Downloaded on - 18/03/2022 06:38:20 ::: {5} CRI RA 90 OF 2021 2015 (herei after referred to as "the J.J.Aft") def es "fhild" who has ot fompleted eightee years of age. e Seftio 2(13) of the J.J.Aft "fhild i fo fift with law" mea s a fhild who is alleged or fou d to have fommitted a ofe fe a d who has ot fompleted eightee years of age o the date of fommissio of sufh ofe fe. e Seftio 2(33) of the J.J.Aft "hei ous ofe fe" is def ed as the ofe fe for whifh the mi imum pu ishme t u der the e dia Pe al Code or a y other law for the time bei g i forfe is impriso me t for seve years or more. e terms of Seftio 15 of the J.J.Aft, JJB has to make assessme t i to hei ous ofe fes to determi e whether CCL is to be tried as a adult. Seftio 15 of the J.J.Aft reads thus :-
"15. Preliminary assessment into heinous ofennes by Board - (1) In case of a heinous ofence 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 ofence, ability to understand the consequences of the ofence and the circumstances in which he allegedly committed the ofence, and may pass an order in accordance with the provisions of sub-section (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.
Explanation.--For the purposes of this section, it is clarifed that preliminary assessment is not a trial, but is to ::: Uploaded on - 17/03/2022 ::: Downloaded on - 18/03/2022 06:38:20 ::: {6} CRI RA 90 OF 2021 assess the capacity of such child to commit and understand the consequences of the alleged ofence.
(2) Where the Board is satisfed on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974) :
Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101.
Provided further that the assessment under this section shall be completed within the period specifed in section 14."
9. Seftio 18 of the J.J.Aft authorizes the Board to refer the fhild to Childre 's Court i terms of Sub-seftio (3) where the Board after prelimi ary assessme t u der Seftio 15 passes a order that there is a eed for trial of the said fhild as a adult, the the Board may order tra sfer of the trial of the fase to the Childre 's Court to try sufh ofe fes.
10. The frufial questio to be determi ed is whether the CCL has fommitted a hei ous ofe fe.
11. As per Seftio 2(33) of the J.J.Aft "hei ous ofe fes"
mea s the ofe fes i whifh mi imum pu ishme t is seve years or more. The lear ed JJB has held that o e of the Seftio s 18, 20, 38 a d 39 provides mi imum pu ishme t for seve years. The sine qua non for tryi g the CCL as a adult for ::: Uploaded on - 17/03/2022 ::: Downloaded on - 18/03/2022 06:38:20 ::: {7} CRI RA 90 OF 2021 fommitti g hei ous ofe fe is mi imum pu ishme t of seve years. This issue is o lo ger res integra. e the fase of Shilpa Mittal Vs. State (NCT of Delhi) and Another [(2020) 2 Supreme Court Cases 787] the Ho 'ble Supreme Court held as u der :
"34. From the scheme of Sections 14, 15 and 19 referred to above it is clear that the Legislature felt that before the juvenile is tried as an adult a very detailed study must be done and the procedure laid down has to be followed. Even if a child commits a heinous crime, he is not automatically to be tried as an adult. This also clearly indicates that the meaning of the words "heinous ofence" cannot be expanded by removing the word "minimum"
from the defnition.
35. Though we are of the view that the word "minimum" cannot be treated as surplusage, yet we are duty-bound to decide as to how the children who have committed an ofence falling within the 4th category should be dealt with. We are conscious of the views expressed by us above that this Court cannot legislate. However, if we do not deal with this issue there would be no guidance to the Juvenile Justice Boards to deal with children who have committed such ofences which defnitely are serious, or may be more than serious ofences, even if they are not heinous ofences. Since two views are possible we would prefer to take a view which is in favour of children and, in our opinion, the Legislature should take the call in this matter, but till it does so, in exercise of powers conferred under Article 142 of the Constitution, we direct that from the date when the 2015 Act came into force, all children who have committed ofences falling in the 4th category shall be dealt with in the same manner as children who have committed "serious ofences". ::: Uploaded on - 17/03/2022 ::: Downloaded on - 18/03/2022 06:38:20 :::
{8} CRI RA 90 OF 2021
12. Havi g regard to this, it is flear that the lear ed JJB did ot fommit a y error i rejefti g the applifatio Exhibit 25 i J.C.No.160 of 2019 a d the lear ed Appellate Court did ot fommit a y error i dismissi g Crimi al Appeal No.2 of 2021 . He fe, the revisio applifatio is devoid of a y substa fe. Revisio Applifatio is affordi gly dismissed.
( M.G.SEWLIKAR ) JUDGE SPT ::: Uploaded on - 17/03/2022 ::: Downloaded on - 18/03/2022 06:38:20 :::