Gujarat High Court
Nileshbhai Vitthalbhai Vasava Through ... vs State Of Gujarat on 28 April, 2022
Author: Gita Gopi
Bench: Gita Gopi
R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 901 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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CHILD IN CONFLICT WITH LAW THROUGH SAVITABEN VITTHALBHAI
VASAVA
Versus
STATE OF GUJARAT
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Appearance:
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 28/04/2022
ORAL JUDGMENT
1. RULE. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent - State.
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2. This Revision Application has been filed by a juvenile, through his mother, for regular bail in connection with the First Information Report being C.R. No.11199016200084 of 2020 registered with Dahej Police Station, District Bharuch for the offences punishable under Sections 302, 201 and 120(B) of the Indian Penal Code.
3. The facts as emerging from the First Information Report are as under :-
On 24.02.2020, the complainant's wife had gone to Village Denva to find a suitable match for her niece and returned home at about 4.30 pm in the evening. At about 5.30 pm, the complainant's son came back from work and went to deliver milk in the Colony on his Motorcycle bearing Registration No.GJ-16-BA-4144. The son did not return until half an hour and therefore, they tried to contact him on his mobile. However, though the mobile was ringing there was no answer. Therefore, with a group of people a search was made for the complainant's son. The next day, i.e. on 25.02.2020 night, the motorcycle driven by the complainant's son was located. However, the complainant's son was not found. Therefore, a missing person report was filed with Dahej Police Station and the search by the relatives Page 2 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 continued. Thereafter, the complainant alongwith his wife, his brothers-in-law and sisters-in-law went to search near the lake and found one slipper of the missing person on the bank and another slipper nearby. One dead body was also found floating in the lake which was taken out. The body bore bruise marks around the neck and the hands were tied at the backside with the T-shirt that the deceased had put on. The body was sent to the Bharuch Civil Hospital. It stated in the First Information Report that thus some unknown persons in the above manner had caused the death of the complainant's son - Ajay, aged 19 years.
4. Learned Advocate for the applicant Mr. Vaibhav N. Sheth submits that after conclusion of the investigation by the police, collection of Post Mortem Report etc, the investigation officer laid the chargesheet before the Court below and the name of the applicant was disclosed from the statement of the co-accused and they were chargesheeted. The alleged role attributed to the applicant is that of having caught the deceased when the deceased tried to save himself and the co-accused then throttled the deceased to death and threw the body of the deceased into the lake. It is further submitted that there is no direct or indirect evidence qua the applicant except the statement of the co-accused and it is Page 3 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 a case of circumstantial evidence. It is also submitted that the applicant had no motive to do away with the deceased, rather it was the co-accused who held a grudge since the deceased loved the sister-Anjanaben and the same was disliked by the co-accused.
4.1. Learned Advocate for the applicant further submits that at the time of commission of offence, the applicant was a juvenile and was kept in the Observation Home, Baroda and when he turned major, the applicant was taken into judicial custody. The applicant initially approached the Juvenile Justice Board (hereinafter referred to in short as 'the Board') seeking regular bail which was rejected. Therefore, the applicant approached the Superior Court which also rejected the application for bail. Thereafter, the applicant approached this Court by way of Criminal Miscellaneous Application No.12200 of 2020 which was rejected on 13.01.2020, mainly on the ground of involvement of the child in heinous crime. The applicant also preferred another successive application for grant of bail before this Court and during the pendency of the same, the Juvenile Justice Board passed an order under Section 15 of the Juvenile Justice Act on 20.01.2021 in Juvenile Case No.29/2020 sending the entire case for trial before the Children's Court by considering preliminary investigation report submitted by Page 4 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 concerned officer treating the juvenile as an adult in commission of heinous crime.
4.2. The applicant after the order dated 20.01.2021 approached the Board once again by filing a fresh application for bail which came to be rejected, against which the applicant filed a Criminal Miscellaneous Application No.105/2021 before the Children's Court (POCSO), which also came to be rejected on 18.02.2021.
5. Learned Additional Public Prosecutor Mr. Pranav Trivedi raised a contention that once an application for bail came to be rejected, on the very same ground no further application could be moved even in the case of child in conflict with law. It is further submitted that the earlier order was passed by this Court in Criminal Miscellaneous Application No.12200 of 2020 and as per the said order dated 13.01.2020, learned Additional Public Prosecutor Mr. Pranav Trivedi submitted that the offence of the child in conflict in law was found to be falling in the category of heinous offence, and while referring to the provision of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to in short as the 'JJ Act, 2015'), this Court had rightly concluded that the order of rejection of bail by the Board was justified, as the same was submitted in view of the Page 5 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 Report by the Probation Officer.
5.1. It is further submitted by Additional Public Prosecutor Mr. Pranav Trivedi that now, the Board had undertaken a preliminary assessment into the heinous offence and thereafter on 20.01.2021, the order was passed under Section 15 of the JJ Act, declaring the proceedings to be conducted as an adult and thus, the entire case is now before the Children's Court. It is submitted that the applicant had moved the Children's Court under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as 'Cr.PC') and in the order of the Children's Court, Bharuch in Criminal Miscellaneous Application No.105/2021, it has been observed that it was the 3 rd application for bail before the Children's Court and no new facts situation was brought on record, the Children's Court has categorically observed that at the time of offence, child in conflict with law has committed the offence with such graveness and shrewdness, as that of an adult. The Report of the Probation Officer was called for by the JJ Board and according to the Report, because of insufficient communication and lack of care and supervision of the mother, the applicant had fallen into bad company and because of that, such heinous crime has been committed. It is submitted that as Page 6 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 observed in the order, the child in conflict with law is now an adult, and if released on bail, there are all possibilities that he may again commit such offences, and further, since the chargesheet has been filed, the Children's Court has rejected the application for bail.
5.2. It is further submitted that since the application was considered under Section 439 of the Cr.PC by the Children's Court, before this Court the application was under Section 439 of the Cr.PC, which thereafter, was converted as a Revision Application and, therefore, is not maintainable. Learned Additional Public Prosecutor Mr. Pranav Trivedi submitted that the bail application under Section 439 of the Cr.PC is not maintainable, as the JJ Act would be applicable and the child in conflict with law would always plead for his case within the provision of Section 12 of the JJ Act.
5.3. Having heard both the sides, the primary contention raised by learned Additional Public Prosecutor Mr. Pranav Trivedi, of the Court exercising revisional jurisdiction would have limited powers to consider the case of the child in conflict with law for bail hearing requires consideration. In the case of present applicant, the child in conflict with law, after rejection of the bail, his case came to be transferred to the Children's Court under Page 7 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 Section 18(3) of the Act and on an order being passed under Section 15 of the JJ Act, 2015. Thereafter too, the applicant child, through his guardian, made a prayer before the JJ Board for bail under Section 12 of the JJ Act. On rejection thereafter, before the Children's Court, the prayer was made under Section 439 of the Cr.PC, and initially, the application before this Court was under
Section 439 of Cr.PC and under permission, the application was converted into a Revision Application.
6. Earlier, Criminal Miscellaneous Application No.12200 of 2020 was preferred under Section 439 of the Cr.PC which was after filing of the chargesheet, and this Court while considering the bail plea had observed that the applicant ought to have filed a Revision Application challenging the orders passed by the Board as well as also by the Children's Court.
7. Having considering the facts of the case and while appreciating the provisions of Section 12 of the JJ Act 2015, this Court in Criminal Miscellaneous Application No.12200 of 2020 had made the following observations in Paragraphs 6, 7 and 8 :-
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 Page 8 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 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;
"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.Page 9 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022
R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022
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 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 Page 10 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 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 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 Juvenile Justice (Care and Protection of Children) Model Rules, 2016."
8. This Court had thus observed that the gravity of offences was not considered a relevant factor while agitating the issue of grant or denial of bail to a child in conflict with law prior to invocation of the 2015 Act as the interest of child was placed on a higher footing than the Society. On joint reading of Sections 14 and 15 of the Act, it was observed that if a child above the age of 16 years as on date is held in commission of heinous offence, after conducting preliminary assessment the Board was required to pass order and if deemed fit may pass an order for transfer of trial to the Children's Court.
9. The said order was in view of the provisions under Section 12 of the Act for a bail to a person who is apparently a child alleged to be in conflict in law. It was observed that the applicant-child was above the age of 16 years and below 18 years at the time when the offence was committed, it was alleged that he was involved in heinous offence of murder. The gravity of Page 11 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 offence was considered a relevant factor which was observed to be a key factor alongwith other factor for adjudicating the issues. Thus, considering the definition of 'heinous offence' under Section 2(33) of the JJ Act, this Court was of a view that order was required to be passed by the Board, in consonance with the provisions under Section 15 of the JJ Act 2015, keeping in view the Report of the Probation Officer.
10. As per the record, now the changed circumstance is the order under Section 15 of the JJ Act, 2015 where the JJ Board has ordered to transfer the trial of the applicant to the Children's Court. As submitted by Learned Advocate Mr. Vaibhav N. Sheth, the said order is under challenge. The applicant thereafter, preferred an application before the Board for bail. However, it was not considered and therefore a prayer was made before the learned 3rd Additional Sessions Judge, Children's Court under the Protection of Children from Sexual Offences Act, 2012 (POCSO) by moving a Criminal Miscellaneous Application No.105/2021 under Section 439 of the Code for bail. As per the observations, in the order Criminal Miscellaneous Applications No.437/2020 and 231/2020 were filed, which were rejected and therefore, the applicant had moved this Court by way of Criminal Miscellaneous Application No.12220/2020. After Page 12 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 the preliminary enquiry under Sections 14 and 15 of the JJ Act and as per the observations, again the child in conflict with law had moved the Board under Section 12(1) of the Act for bail which was rejected.
11. Learned Advocate for the applicant Mr. Vaibhav N. Sheth submitted that Section 12 of the JJ Act, 2015 does not make any classification of the child in conflict with law, under bailable or non-bailable offences, and, such juvenile when apprehended or detained by police appears or is brought before a Board, despite anything contained in Cr.PC or under any other law in force is required to be released on bail with or without surety. It is submitted that the Court is not required to consider the gravity of the offence, while consideration should be within Section 12 of the JJ Act, 2015. Learned Advocate thus, sought to argue that the Board has not given any reasoning as to how the release of the applicant would be detrimental to the ends of justice and has further not examined the facts about the Report of the Probation Officer, to consider how the release of the applicant would put him in the association of criminals. It is further submitted that after considering the case of the applicant, need was felt that the trial of the applicant child be that of as an adult thus, the Board passed an order to transfer the case to the Children's Court.
Page 13 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 Learned Advocate Mr. Vaibhav N. Sheth thus, submitted that Board ought to have considered this aspect and should have gone into the merits of the case to decide whether the child in conflict with law to be tried as an adult, would be entitled for bail under Section 12 of the JJ Act, by considering the criteria and parameters as laid down under Sections 437 and 439 of the Cr.PC.
12. The Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 came into force on 07.08.2021. After the amendment of Juvenile Justice (Care and Protection of Children) Act, 2015, the amended Section 18 of the JJ Act, 2015, after the word 'heinous offence', inserts words "or a child above the age of sixteen years has committed a heinous offence and the Board has, after preliminary assessment under Section 15 disposed of the matter". Thus, after 07.08.2021, when the amendment came to be published in the Gazette of India on 09.08.2021, the provision under Section 18 thus stands to be read as :-
"18. Orders regarding child found to be in conflict with law. - (1) When a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, [or a child above the age of sixteen years has committed a heinous offence and the Board has, after preliminary assessment under section 15, Page 14 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 disposed of the matter], then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit, -
(a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian;
(b) direct the child to participate in group counselling and similar activities;
(c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by Board;
(d) order the child or parents or the guardian of the child to pay fine: Provided that, in case the child the working, it may be ensured that the provisions of any labour law for the time being in force are not violated;
(e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may required, for the good behaviour and child's well-being for any period not exceeding three years;
(f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child's well-being for any Page 15 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 period not exceeding three years;
(g) direct the child to be sent to a special home, for such period, not exceeding three years, as thinks fit, for providing reformative services including education, skill development, counselling, behaviour modificiation thereapy, and psychiatric support during the period of stay in the special home:
Provided that if the conduct and behaviour of the chidl has been such that, it would not be in the child's interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety.
(2) If an order is passed under clauses (a) to (g) of sub-
section (1), the Board may, in addition pass orders to -
(i) attend school; or
(ii) attend a vocational training centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or appearing at a specified place; or
(v) undergo a de-addiction programme.
(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences."
13. This Court would like to refer to the decision in the case of Kent v. United States, 383 U.S. 541 (1966), decided on 21.03.1966, where Kent, a 16 year old was arrested for various charges. For 24 hours he was in police custody, questioned, he admitted to some offences.
Page 16 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 Then he was subject to "exclusive jurisdiction" of the District Juvenile Court, which could "only waive jurisdiction after a "full investigation" of the question of waiver". In Kent's case, the Juvenile Court waived its jurisdiction without a hearing or allowing Kent's counsel to access important Court Social Service files. The U.S. District Court dismissed Kent's claim and tried him as an adult. Later, he was convicted as an adult. When Kent's challenge eventually reached the US Supreme Court, it has considered the facts to be considered before transferring.
13.1. In reforming Juvenile Justice, Josine Junger-Tas Frieder Dunkel Editors, Springer, Ed. 2009 14 [] 383 U.S. 541 (1966) 27/44 (transfer of juveniles to criminal court), it was opined that the judges must assess these factors thoroughly before waiving a juvenile to criminal court :
(i) The seriousness of the alleged offence to the community and whether protecting the community requires waiver;
(ii) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willed manner;
(iii) Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;
(iv) The prosecutive merit, i.e. whether there is evidence Page 17 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 upon which a court may be expected to return an indictment;
(v) The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults;
(vi) The sophistication and maturity of the juvenile by consideration of his home, environmental situation, emotional attitude, and pattern of living;
(vii) The record and previous history of the juvenile, including previous contacts with ... law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation ... or prior commitments to juvenile institutions.
14. Rule 10A of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016, provides guidance to the Board for preliminary assessment into heinous offences, which mandates reasons to be assigned while passing any order under Section 15 of the JJ Act, 2015. Thus, now the position after the amendment in Section 18 of the JJ Act, 2015 would be that the Board may dispose of the matter even in case of a child above sixteen years, alleged in the commission of heinous offence after the assessment under Section 15 of the JJ Act, 2015. Despite anything contrary contained in the law for the time being on force based on the nature of Page 18 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit, allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian and direct the child to participate in group counselling and similar activities and the law under Section 18 of the JJ Act further provides for directions and order under clause (b) to (g) and additional order under sub-section (2).
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.
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16. Now, under these circumstances upon preliminary assessment made by the JJ Board under 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 non- obstante 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 Page 20 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 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 :-
"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 Page 21 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 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 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 Page 22 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 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.
21. Section 101 of the JJ Act, 2015 provides for appeal against the order of Board and Section 102 of the above Act is for revision before the High Court against the order of the Board or Children's Court for the purpose of Page 23 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 specifying the legality or propriety of any such order passed by the concerned Court below. Thus, the provision of Appeal and Revision in the Act itself clarifies that the said challenge would be to any of the orders passed under Section 12 by the Board under the JJ Act. Section 8(2) of the JJ Act, 2015 confers the same powers to the High Court as well as the Children's Court, as that of the Board, when there are any proceeding before them under Section 19 or in appeal, revision or otherwise. Thus, any bail plea before the Children's Court in Appeal or in Revision under the High Court would grant equal power that has to be exercised by the Board under the JJ Act. Thus, while considering the bail plea, the Children's Court and the Revisional Court as that of the High Court would exercise the same power as is granted under Section 12 of the JJ Act, 2015. Hence, the bail plea would be considered under the provisions of Section 12 of the JJ Act, 2015.
22. Section 21 of the JJ Act, 2015 clearly states that. no child in conflict with law would be sentenced to death or life imprisonment without the possibility of release for any such offence under the provisions of JJ Act, 2015 or under the provision of Indian Penal Code or any other law for the time being in force.
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23. Thus, with regard to the objection raised by the State, by giving the factual aspect of the matter, undisputedly, the order has been passed under Section 15 of the Act where the trial of the child in conflict with law is ordered to be transferred to the Children's Court. The challenge to that order is stated to have been made and that could be made under Section 101(2) of the JJ Act, 2015 before the Sessions Court. As per the case of the prosecution, referring to the facts of the matter, the name of the child in conflict with law (the present applicant) emerges from the statement of the co-accused (a major) and the role attributed to the present applicant is that he caught hold of the deceased when the deceased tried to save himself and when the co-accused-the major throttled the deceased to death and threw the body in the lake. The Sections invoked in this case are 302, 201 and 120(B) of the Indian Penal Code. It is the case of the prosecution that the co-accused had made an extra-judicial confession before Anjanaben (who is the sister of the accused) and repented before the sister that he alongwith the present applicant had killed the deceased as he came to know about the illicit relation of the deceased with Anjanaben. The glaring fact is that Anjanaben is not made witness for the trial. The present applicant thus, has been drawn into the matter on the basis of the statement of the co-accused. With regard to Page 25 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 the allegations of the child in conflict with law of having caught hold of the deceased, while the deceased was throttled by the co-accused, the ingredients of Section 120(B) of the Indian Penal Code are not prima-facie revealed, and as to how and when the conspiracy was hatched does not get disclosed from the case of the prosecution.
24. The Report of the Probation Officer, JJ Board was called for and as per the observations, because of insufficient attention and lack of care and supervision of the mother, the present applicant had fallen into bad company and therefore, had committed the grievous offence. It was also the observation of the Children's Court that the child in conflict with law (who now has turned major) because of the bad company, a possibility existed that he may commit some other offence and had come to the conclusion that the punishment for such offences is life imprisonment.
25. Thus, considering the fact that the order under Section 15 of the JJ Act, 2015 has been challenged and the role attributed to the applicant is on the basis of co- accused statement whose extra-judicial confession would not be supported by Anjanaben and further the object of reformation and that there would not be sentence of Page 26 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022 R/CR.RA/901/2021 JUDGMENT DATED: 28/04/2022 death or life imprisonment unless as provided under Section 21 of the JJ Act, 2015, there appears no reason to deny bail to the present applicant and can be put under the observations of the Probation Officer.
26. Thus, for the foregoing reasons, this Criminal Revision Application is allowed and the child in conflict with law (present applicant) is ordered to be released on bail on the following conditions :-
i) The child in conflict with law who has now turned major shall furnish a personal bond in the sum of Rs.15,000/- (Rupees Fifteen Thousand Only) with one surety in the like amount from his father, to the satisfaction of the learned Children's Court; and
ii) A Probationary Officer shall be appointed for the child in conflict with law, who shall maintain general oversight and supervision over the present applicant as may be deemed necessary, to ensure that he does not fall into any undesirable company and is not exposed to any moral, physical or psychological danger; or that his release, in any manner, defeat the ends of justice, till the conclusion of trial.Page 27 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022
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27. Nothing in this judgment shall be construed as an expression on the merits of the case. Other pending applications, if any, also stands disposed of. Rule made absolute.
Sd/-
(GITA GOPI, J) Caroline Page 28 of 28 Downloaded on : Fri Apr 29 21:42:40 IST 2022