Bombay High Court
Shubham @ Bablu Milind Suryavanshi vs The State Of Maharashtra on 21 October, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.2282 OF 2021
Shubham @ Bablu Milind .. Applicant
Suryavanshi
Versus
The State of Maharashtra .. Respondent
...
Ms.Sahana Manjesh for the Applicant.
Ms.A.A.Takalkar, A.P.P. for the State/Respondent.
PI Vijay Madage, attached to Borivali Police Station, present.
...
CORAM: BHARATI DANGRE, J.
DATED : 21st OCTOBER, 2022
P.C:-
1. Heard Advocate Ms.Sahana Manjesh for the applicant,
who is a juvenile in confict with law (CCL) and seeks his
release on bail in C.R.No.141 of 2020, registered with Boriwali
Police Station. The applicant is aged 17 years 11 months and 6
days and is one of the accused charged for committing murder.
He came to be arrested on 13/03/2020 and seeks his release
by taking beneft of the statutory provision in form of Section
12 of the Juvenile Justice (Care and Protection of Children)
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Act, 2015 (for short, "The J.J. Act").
2. Learned counsel for the applicant would vehemently
submit that the incident complained of, is alleged to have
taken place on 12/03/2020 and the applicant came to be
arrested on 13/03/2020, when he was a juvenile. On
completion of investigation, charge-sheet was fled under
Section 302 read with Section 34 of I.P.C. and the Juvenile
Justice Board (for short, "The JJB"), directed the applicant to
be tried as an adult. He preferred an application before the
Sessions Court at Dindoshi, who rejected his application on
wrongful consideration of Section 12 by holding that, since he
was tried to be an adult, he was not entitled to be released on
bail.
Learned counsel would place reliance upon the mental
health report of the applicant as well as the report of the CCL
from the Probation Department and also the preliminary
assessment report of the applicant.
Learned counsel would also place reliance upon various
authoritative pronouncements, including the decision of the
Delhi High Court in the case of the CCL 'A' Vs. State (NCT of
Delhi)1, the decision in case of the Re-A Juvenile Vs. State of
1 2021 Cri.L.J.1251
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Orissa2 and an order passed by this Court in Bail Application
No.3838 of 2021, to support her submission that the applicant,
being juvenile, is entitled for being extended the protection
under Section 12 of J.J.Act.
Per contra, learned A.P.P. would strongly oppose the
application and submit that the date of birth of the applicant is
06/04/2002 and on being arrested, he was produced before
the JJ Board, which directed to retain the applicant in the
Observation Home at Dongri. Inviting my attention to the
grave role attributed to the present applicant, learned A.P.P.
would submit that at the time of commission of offence, the
applicant was aged 17 years, 11 months and 24 days. She
would submit that in terms of Section 15 of J.J.Act, which
specifcally provide that in case the child is between 16 to 18
years and he has committed a heinous offence, then the JJ
Board may conduct a preliminary assessment in order to
assess the maturity level of the child, his mental and his
physical capacity to conduct such an act and it may take the
aid of experienced psychologists and psycho-social workers to
reach a conclusion, whether he is to be tried as a child or as an
adult. She would submit that in case the Board is of the
2 2009 Cri.L.J. 2002
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opinion that the child is not to be tried as an adult, it would
pass the order as per the guidelines issued under Section 18 of
the Act.
Learned A.P.P. would rely upon the said guidelines, which
are reproduced in the affdavit and read thus :-
"18. Procedure to be followed in respect of sections
21,22,23,24, 25 and 26 of the Act.-
(3) The offences against a juvenile in confict with law
or a child specifed in sections 23, 24, 25 and 26 shall be
either bailable or non bailable besides being cognizable under
the provisions of the Code of Criminal Procedure, 1973 (2 of
1974) and the procedures shall apply on the Police, the
Board and the concerned authorities and functionaries
accordingly."
The contention of the Applicant that he being a juvenile
should compulsorily be released on bail and that he cannot be
detained under any circumstances does not hold good and is
not maintainable under the provisions of law.
That proviso to sub-section (1) of Section 12 of the
Juvenile Justice Act, 2015 mentions in clear terms that,
"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."
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Learned A.P.P. would urge that Section 12 of the Act
cannot come to an aid of the applicant, as he is directed to be
tried as an adult by the Sessions Court and, therefore, no
affdavit can be derived.
3. With the able assistance of the respective counsel, I have
perused the material against the present applicant as compiled
in the charge-sheet. The prosecution case is, on 12/03/2020,
the applicant and the main accused, one Ajay Shinde
approached a group of three friends, who were chatting. It is
alleged that there was a old rivalry between accused Ajay
Shinde and these three friends. When the approached towards
the group of these three people, the applicant was allegedly
holding piece of broken glass in his hands, whereas accused
Ajay Shinde was holding a beer bottle. On sensing that the two
are approaching towards them, the three persons tried to fee
away from the spot, but the accused persons caught hold of one
of the three friends, namely, Vighnesh and stabbed the piece of
glass in his body, which resulted in bleeding injury. He was
taken to the hospital, where he was declared dead.
4. The main accused-Ajay Shinde surrendered himself
before Borivali Police Station and he named the present
applicant, who came to be formally arrested on 13/03/2020.
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As the applicant was a minor, he was remanded to Children's
Home in Dongri. The applicant was directed to be tried as an
adult and his case was committed to the Sessions Court,
Dindoshi (Children's Court), where the case is numbered as
Sessions Case No.425 of 2020.
5. It can be seen that the applicant preferred a bail
application and on 29/10/2020, the Principal Magistrate,
Suburban Juvenile Justice Board, recorded as under :-
"By preliminary assessment order dated 29/10/2020, this
case is transferred for trial to Children's Court. Considering
the heinous nature of offence and the fact that Children's
Court will be trying the offence it will not be proper for the
Board to decide bail application, so the bail application be put
up before Children's Court."
The said order was passed, after examining the mental health
report received from Sir J.J.Group of Hospitals in respect of
the psychiatric evaluation of the juvenile as well as his
physical examination to ascertain the physical capacity. A
report from the Probation Department from Police Station
Boriwali was also forwarded to the JJ Board, where it is
recorded as under :-
"CCL Shubham has been staying in the Observation Home
for more than 7 months. During his stay in the Home, on
few occasions he had exchange of words with the staff of
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home as well as other inmates on discipline issues. Most
of the time he found to be decent-well behaved, he
actively participated in independence day cultural
program, performed well the acts, noticed full of zest in
the task various tasks allocated to him, showed
leaderships skills. Daily attending physical training
sessions. He is at present learning carpentry work,
feedback from the Carpentry teacher is positive about
Shubham. CCL Shubham regularly attended counselling
sessions through video calls with the counselor.
Overall behaviour of the CCL Shubham noticed to be
good."
6. The JJB on 29/10/2020, transferred the trial of the case
to the Children's Court having jurisdiction, by considering the
preliminary assessment report as well as the mental health
report placed before it and it recorded as under :-
"9. The Medical Superintendent, Sir J. J. Hospital has
submitted medical certifcate wherein it is mentioned that, on
physical examination of the said C.C.L., no abnormality noted
which can prevent him to commit the offence registered
against him.
10.Mental Health Report dated 27/07/2020 is also on record.
The said report is as follows :
He understands seriousness of allegation against him and
that it is against law. No perceptional abnormality. No
delusions. Insight present. Judgment intact.
Impression : No active psychopathology at present and in the
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past.
Conclusion : No evidence of mental incapacity to commit the
offence.
11. The sequence in which the events unfolded during the
alleged incident reveal that C.C.L. and the major accused had
predetermined to commit the crime, followed victim to the
spot and left the scene only after causing deadly injuries to
the victim. These circumstances and the Physical and Mental
Health Report of C.C.L. necessitate that there is need for trial
of the said child as an adult. So, the case shall have to be
transferred for trial to the Children's Court."
On the application being preferred before the Sessions Court at
Dindoshi, it came to be rejected on 29/01/2021, by recording
as under :-
"5. As per the FIR, the applicant stabbed the deceased with a
piece of bottle on his neck, resulting into his death. The
offence is committed by the applicant with pre-meditation, as
he approached the deceased with the piece of bottle, and
thereafter, stabbed him. Considering the gravity of the crime,
the applicant does not deserve to be enlarged on bail. Section
12 of the Juvenile Justice Act cannot come to an aid of the
applicant, as he has to be tried as adult by this Court. Section
12 enables the Juvenile Justice Board to enlarge a juvenile on
bail."
7. It can be seen that the application of the applicant has
been rejected on the ground that Section 12 of the Act cannot
come to his rescue, as he is directed to be tried as an adult and
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Section 12 enables the Juvenile Justice Board to enlarge a
juvenile on bail.
The question that arises for determination is, whether on
being tried as an adult, is the juvenile denuded of the statutory
right available to him under Section 12 of the Act.
8. The said question is no more res integra and has been
deliberated upon by several High Court, including the Bombay
High Court. Before I proceed to deal with the said decision, it
would be necessary to reproduce Section 12 of the Act, which
is a provision pertaining to the release of a child alleged to be
in confict with law and it reads thus :-
12. Bail to a person who is apparently a child alleged to be in
confict with law. (1) When any person, who is 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 offcer or under the care of any ft
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.
(2) When such person having been apprehended is not released
on bail under sub-section (1) by the offcer-in-charge of the
police station, such offcer shall cause the person to be kept
only in an observation home '[or a place of safety, as the case
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may be,] in such manner as may be prescribed until the person
can be brought before a Board.
(3) When such person is not released on bail under sub-section
(1) by the Board, it shall make an order sending him to an
observation home or a place of safety, as the case may be, for
such period during the pendency of the inquiry regarding the
person, as may be specifed in the order.
(4) When a child in confict with law is unable to fulfll the
conditions of bail order within seven days of the bail order,
such child shall be produced before the Board for modifcation
of the conditions of bail."
9. Reading of Section 12 makes it imperative to release the
applicant, who is alleged to have been committed bailable or
non-bailable offence and this power has to be exercised
notwithstanding anything contained in the Code of Criminal
Procedure, which expect a decision of release, taking into
account the provisions of Section 439 of Cr.P.C. It is not in
dispute that the applicant is a child at the time of commission
of offence and would fall within the meaning of 'child in confict
with law', as defned in the Act of 2015.
In the scheme of enactment, it can be seen that Section
12 contains an imperative mandate to release a child on bail,
when he is apprehended or detained in connection with an
offence and it is a special provision, which stand to the
exclusion of the Code of Criminal Procedure. Section 5 of the
Cr.P.C. contained a saving clause, which reads thus :
"5. Saving.- Nothing contained in this Code shall, in the
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absence of specifc provision to the contrary, affect any special
or local law for the time being in force, or any special
jurisdiction or power conferred or any special form of
procedure prescribed, by any other law for the time being in
force."
The parameters for considering an application for bail fled by
a juvenile under Section 12 of the Act of 2015 are clearly
distinguishable from the application fled under Section 439 of
Cr.P.C. and after following the procedure as prescribed under
the Act i.e. from Sections 15 to 18 when a decision is taken to
try a juvenile as an adult, the issue that arises for
consideration is, upon such a contingency, whether the beneft
of Section 12 can be denied to him.
This precise question arose for consideration before the
High Court of Delhi in case of CCL 'A' (supra) and vide a details
judgment delivered by the learned Single Judge on October 19,
2020, the issue has been specifcally answered and on going
through the said law report, I cannot disagree, but express
concurrence with the view expressed by Justice Anup Jairam
Bhambani.
10. A similar issue was answered by the Delhi High Court in
CCL 'A' (supra), when a similar point arose for determination
and it was answered by recording that bail plea on behalf of a
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juvenile must always be considered on the criteria and
parameters set-out in Section 12 of the J.J.Act.
11. The precise questions that were framed by the learned
Judge of the Delhi High Court read as under :-
"(a) When upon a preliminary assessment made by the
JJB under section 15(2) of the JJ Act, the JJB is of the
opinion that there is need for trial of the child as an 'adult' and
it transfers the trial to the Children's Court, does the child in
confict with law de-jure become an 'adult', to be treated as
such in all subsequent proceedings ?
(b) Whether an application for bail is maintainable
before the High Court under section 439 Cr.P.C. for a child in
confict with law, who is sent-up for trial as an adult before the
Children's Court ?
On detailed analysis of the statutory scheme, the
questions were answered as under :-
"26. Clearly therefore, even when a child is sent-up for trial as
an adult before a Children's Court, the child does not become
an adult or 'major', but is only to be treated differently
considering the heinous nature of the offence alleged and
consequent need for a stricter treatment of the offender,
though still as a juvenile in confict with law. It must be borne
in mind that the Legislature has created this categorization
based upon an assessment of the child's "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". If the intention of the
Legislature was that upon such assessment, the child would
de-jure become an adult, then the question of there being a
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separate Children's Court to try him with specifc safeguards
provided for the trial would not arise. That however is not the
case.
27. ... ... ...
28. With specifc reference to the application at hand, it
bears mentioning that even though a child may be sent-up for
trial before the Children's Court as an adult, there is no
provision in the JJ Act that requires any departure from
considering the matter of release of such child on bail under
section 12. This court is supported in this view by the
judgment of a Co-ordinate Bench of this court in A.C. v. State
of NCT of Delhi Para 11. Is a child's bail plea maintainable
before the High Court under section 439 Cr.P.C."
12. It is to be noted that the Juvenile Justice Act is a
benefcial piece of legislation and it must be construed by
taking into consideration the object behind it's enactment,
being to provide for the care, protection, treatment,
development and rehabilitation of neglected or delinquent
juveniles. It is a benefcial legislation aimed at making
available the beneft of the Act to the neglected or delinquent
juveniles.
While construing the provision contained in Section 12,
which contemplate that a juvenile shall be released on bail
notwithstanding anything contained in the Cr.P.C. and Section
12 further stipulates that he may be released with or without
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sureties, or may even place under the supervision of the
Probation Offcer or under the care of any ft person. The only
embargo in not releasing such a person on bail is the proviso,
which prescribes that 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.
None of the Court i.e. JJB or the Children's Court had
adverted to the said aspect of the matter. The Probation
Offcer, in his report has clearly recorded as under :-
"This is First time the CCL was involved in a criminal act.
CCL Shubham clearly accepted his presence at site of
offence, his active role in the offence. CCL also articulated
vigorously that it was unintentional to cause any grievous
hurt to the victim & the offence committed under infuence
of narcotic substances. Trace of repentance is noticed &
Shubham expressed the same.
CCL is regularly attending counselling sessions, he need to
undergo more counseling sessions on regular basis to curb
his anger consequences of addiction & realize the
consequences of his act.
Father of the CCL is ready to take custody of the CCL,
ensuring his wellbeing. Concrete Betterment plan from
parent need to taken for progress & good behavior of the
CCL.
Supervision on CCL is necessary, CCL Shubham can be
directed to report Probation Offcer once a month to monitor
his behavior and progress & suitable NGO can be directed to
monitor CCL.
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Considering the interest of CCL further order can be passed."
13. The report of the Probation Offcer has also specifcally
recorded that the CCL has committed the offence under the
infuence of the drug and in the ft of anger and he had no
intention to kill the victim, but his intention is only to beat
him.
14. The applicant was taking education in standard 10th in
English medium. He was working in and around Pune, after
being dropped out of the school and earning some money for
himself. The Probation Offcer report also reveal that at
present, he is learning carpentry work and feedback from the
teacher is positive. He is also attending counselling sessions
through video calls. The remark of the Probation Offcer is,
"overall behavior of CCL Shubham noticed to be good".
15. In the aforesaid circumstances, when the Children's
Court has rejected his application, without adverting to the
said facts and also the statutory mandate of Section 12, is an
unfortunate part. Merely because, he is directed to be tried as
an adult, he cannot be denied the beneft of Section 12. I am
fortifed by the earlier view taken by this Court in the case of
Sandeep Ayodhya Prasad Rajak (Bail Application No.3838 of
2021 decided on 22/08/2022) and also in the case of Prasad
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Subhash Khade Vs. State of Maharashta (Bail Application
No.1647 of 2020 decided on 18/03/2021)
16. In any case, the J.J.Act focuses on a principle of
presumption of innocence and on the principle of best interest
as well as principle of repatriation and restoration, by virtue of
which, the applicant, who is a juvenile, has a right to be re-
united with his family at the earliest and to be restored to the
same socio-economic and cultural status that he was in, before
coming under the purview of this Act, unless such restoration
and repatriation is not in his best interest. The co-accused is
already undergoing incarceration and the father of the CCL is
ready to take his custody, ensuring his well being. In the wake
of the above circumstances, emerging from the facts and
circumstances of the case, I deem it appropriate to release him
on bail. Hence, the following order.
: ORDER :
(a) Application is allowed.
(b) Applicant -Shubham @ Bablu Milind
Suryavanshi shall be released on bail in connection with C.R.No.141 of 2020 registered with Boriwali Police Sation on furnishing P.R. Bond to the extent of Rs.25,000/- with one or two sureties in the like amount.
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The applicant shall be relesed on cash bail of Rs.25,000/- for a period of six weeks. During the said period, he shall arrange for the sureties.
(c) The applicant shall attend the trial on regular basis.
(d) The applicant shall report to the Probation Offcer once in every two months and his performance and conduct shall be monitored by the Probation Offcer.
(e) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Offcer. The applicant shall not tamper with evidence.
(f) On being released on bail, the applicant shall furnish his contact number and residential address to the Investigating Offcer and shall keep him updated, in case there is any change.
( SMT. BHARATI DANGRE, J.) M.M.Salgaonkar ::: Uploaded on - 21/10/2022 ::: Downloaded on - 22/10/2022 17:19:44 :::