Gujarat High Court
Bhaliya Jayantibhai Ravjibhai vs State Of Gujarat on 18 April, 2023
Author: Gita Gopi
Bench: Gita Gopi
R/CR.RA/398/2023 ORDER DATED: 18/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 398 of 2023
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BHALIYA JAYANTIBHAI RAVJIBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR SHAIVAL M PATEL(9950) for the Applicant(s) No. 1
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/04/2023
ORAL ORDER
1. Since the juvenile in conflict with law on produced before the Juvenile Justice Board, Vadodara in connection with FIR no. 11197059220396/2022 of Jarod Police Station, Vadodara Rural for the offence under Sections 143, 147, 148, 149, 302, 323, 506(2), 504, 34 of the IPC, his bail application came to be rejected, against that, he through his parents filed Criminal Appeal before the Children's Court under Section 12 of the Juvenile Justice (Care and Page 1 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023 R/CR.RA/398/2023 ORDER DATED: 18/04/2023 Protection of Children) Act, 2015 (hereinafter referred to as "the Act"), which came to be rejected and has filed the Revision Application challenging the propriety and legality of the order passed by both the authorities. This Court had an occasion to deal with the bail application of a child in conflict with law and while granting bail, this Court had an occasion to deal with the provisions of Section 12 of the Act and had explicitly laid down that Section 439 of the Cr.P.C. would not be applicable on the issue of grant or denial of bail to a child alleged to have committed bailable or non-bailable offence which is dealt with by the special statute i.e. Juvenile Justice (Care and Protection of Children) Act, 2015, which contains specific provision for bail under Section 12 of the Act. In the case of Child in Conflict with Page 2 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023 R/CR.RA/398/2023 ORDER DATED: 18/04/2023 Law Through Savitaben Vitthalbhai Vasava v. State of Gujarat, 2022 (0) AIJEL-HC 244005 (passed in CRRA no.901 of 2021 on 28.04.2022), it has been observed as under:-
"15. Explanation to Section 15 of the JJ Act, 2015 stipulates that in case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequence of the offence and the circumstances in which he allegedly committed the offence and then may pass an order in accordance with the provisions of sub-section (3) of Section
18. Thus, the whole endeavour of the JJ Act, 2015 is to protect a child in conflict with law from the path of destruction and being a menace to the Society. The object is reformative and not retributive.
16. Now, under these circumstances upon preliminary assessment made by the JJ Board under 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 Page 3 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023 R/CR.RA/398/2023 ORDER DATED: 18/04/2023 question would be whether the application for bail would be maintainable in the High Court under Section 439 for the child in conflict with law, who is sent for trial before the Children's Court or whether the application for bail should be considered under Section 12 of the JJ Act.
17. Section 12 of the JJ Act, 2015 which deals with the grant of bail to a child expressly contains the nonobstante phrase to be as ".... notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail ...". This very provision in Section 12 clarifies that provisions of Cr.PC is excluded in the case of bail plea of the child. Further, it requires to be noted that Section 12 is a specific provision under the special statute that deals with the matter of bail and accordingly, the application of Section 439 of the Cr.PC is also necessarily excluded. Cr.PC contains a corresponding clause which is for application on special lines. Considering this aspect in case of a bail application on behalf a child, it would be required to be concluded that such bail plea would not be maintable under Section 439 of Cr.PC.
18. The order under Section 18(3) of the JJ Act transferring the trial of the case to the Children's Court would not declare the child as an adult. Child in conflict with law is defined under Section 2(13) of the JJ Act, 2015 to mean a child who Page 4 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023 R/CR.RA/398/2023 ORDER DATED: 18/04/2023 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 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 Page 5 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023 R/CR.RA/398/2023 ORDER DATED: 18/04/2023 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.Page 6 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023
R/CR.RA/398/2023 ORDER DATED: 18/04/2023 "8. .......... While there is no denial of the fact that when the Court of Sessions exercises appellate power under Section 101(2) and the High Court exercises revisional power under Section 102 of the Act of 2015, it shall exercise power of the Board provided under Section 8(2), but this power of the Board would also be available to the Court of Sessions or to the High Court when it proceeds to examine the plea of juvenile for grant of bail whenever such occasion arises on account of bail application of juvenile being rejected under Section 12 of the Act of 2015. Therefore, by use of the term "otherwise" in Section 8(2), jurisdiction under Section 439 of the Code would not be attracted which is otherwise excluded by use of the term "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force", as occurring in Section 12 (1)." (emphasis supplied)
20. The law therefore, is clear on the aspect that since Section 12 of the JJ Act bears a non-obstante clause which indicates legislative intent that the source of power to grant bail under the JJ Act, 2015 is independent from that of Page 7 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023 R/CR.RA/398/2023 ORDER DATED: 18/04/2023 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."
2. Mr. Shaival Patel, learned advocate for the applicant stated that J.J. Board as well as the Children's Court have failed to take into consideration the probation officer's report which is to be perused while considering the application under Section 12 of the Act. Mr. Patel submitted that in all there are 6 juveniles and 5 have been granted bail by this Court and further stated that in the bail order of 5 juveniles in conflict with law, this Court, after perusing the probation officer's report, had granted bail. Mr. Patel submitted that probation officer's report would clarify the fact that of the necessity of the present Page 8 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023 R/CR.RA/398/2023 ORDER DATED: 18/04/2023 juvenile in conflict with law to keep with him a knife. Mr. Patel stated that as per the report, the juvenile was in romantic relations with the niece of the deceased and thus, the deceased was often threatening him and was creating an atmosphere of fear. As per the report, the applicant had discontinued his relations with the niece of the deceased. Still however, the deceased was threatening him and therefore, for his own safety, juvenile in conflict with law was holding the knife. Mr. Patel submitted that on the day when the incident took place, there was a dispute between 2 class of the village and all the 10 accused have been alleged to have played specific role of injuring the deceased and the allegation against the present applicant is of giving a knife blow on the chest and abdomen of the deceased.
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3. Advocate Mr. Pathan who has been appointed from Gujarat High Court Legal Service Authority on behalf of the complainant submitted that the very act of the juvenile of inflicting the deceased the knife blow suggest the criminal mind of the juvenile and stated that if at all he is released on bail, then he may continue with his illegal activities and would create an atmosphere of fear in the village and thus, stated that no bail should be granted.
4. While learned APP submitted that the major role of this juvenile is of inflicting the knife blows which has taken the life of the deceased and stated that if at all the juvenile had any fear because of the deceased, he could have reported the same and the parents could have filed an FIR against the deceased.
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5. As per the prosecution case, on 3.10.2022, there was some quarrel during Garba festival on 8th day of Navratri. It is stated that there was scuffle between Omkumar Jayantibhai Bhaliya, Kinjalbhai @ Kartik Manubhai Bhaliya and Kushkumar @ Karan Maheshbhai Bhaliya and it is alleged that video on the mobile phone was on and they were abusing and according to the complainant, his son - Pradipbhai Bhaliya had asked them not to abuse, but the quarrel initiated and which led to scuffle and according to the complainant, his nephew - Arjunbhai Pareshbhai Bhaliya had slapped Kinjal @ Kartik Bhaliya and had asked not to quarrel so that festival does not get spoil and according to the complainant, both the sides had settled for compromise. On the next day i.e. on 4.11.2022, at the time when there was procession for immersion of Javara Page 11 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023 R/CR.RA/398/2023 ORDER DATED: 18/04/2023 of the goddess and were proceeding towards pond, they had come near Vahanvati goddess temple. According to the complainant, he, his nephew and his son were sitting on the bench, at that time at about 10.00 a.m., about 10 of them suddenly came there and started scuffle with his nephew - Arjun Pareshbhai Bhaliya and it is alleged that at that time, Kalpesh Chimanbhai Dodiya gave a blow on the head of the nephew with the steel bracelet and according to the complainant before he could understand anything, all the boys started pulling Arjun Bhaliya and it is alleged that the juvenile in conflict with law with knife in his hand gave blow on the chest and abdomen of Arjunbhai. It is alleged that Arjunbhai fell down on the ground and again the juvenile gave blow with the knife on the back of the head and the said juvenile and others Page 12 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023 R/CR.RA/398/2023 ORDER DATED: 18/04/2023 started abusing him, shouting that they are not going to leave him and would kill him. Further, the allegation is that all the persons standing there started pulling Arjunbhai and gave kick and fist blows to him.
6. As per the social investigation report, the juvenile in conflict with law is having cordial relations with his family members. There is no criminal history of the family. After SSC, he had continued his education in ITI. The mental and physical status of the juvenile is proper and is staying in a joint family. The family could not even believe of the quarrel to have ended up in the murder. It is stated that often there was dispute with regard to occupying the place near the temple in the village and the juvenile is paying attention to his education and is also regularly doing his work. The probation Page 13 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023 R/CR.RA/398/2023 ORDER DATED: 18/04/2023 officer's report reflects that in village, Bhaliya community has about 50 houses and there are two groups in the said community who are staying in the same neighbourhood and there are often quarrels between the group regarding the space at the temple and the juvenile would often play his role in those quarrels and according to the investigating report, the juvenile was in romantic relations with the niece of the deceased and therefore, the deceased was often threatening him and had created an atmosphere of fear, as a result, he had discontinued his relations with the niece. However, owing to the fear, he was keeping a knife for his safety and that fact was not known to the parents and at the time of the quarrel, he had used the same.
7. The facts suggest that the juvenile was under the threat and fear of the deceased. Page 14 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023 R/CR.RA/398/2023 ORDER DATED: 18/04/2023 It is the responsibility of the elders of the village to see that cohabitant lives peacefully and a juvenile cannot be made victim for such internal dispute between the community members. The other co-juveniles in conflict with law have been granted bail by this Court. The rehabilitation of the child with the parents is advisable. Since the present juvenile in conflict with law is pursuing his studies and taking into consideration the facts of the incident, bail is granted.
8. In the result, the present application succeeds and is allowed. Juvenile in conflict with law is ordered to be released on bail in connection with FIR no. 11197059220396/2022 of Jarod Police Station, Vadodara Rural on the applicant's father executing a personal bond in sum of Rs.10,000/- each (Rupees ten thousand only) Page 15 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023 R/CR.RA/398/2023 ORDER DATED: 18/04/2023 with surety of like amount before the Children's Court.
9. It is directed that the Probation Officer shall monitor the conduct of the juvenile in conflict with law and shall quarterly submit the report before the Children's Court till completion of the trial. Moreover, if the Probation Officer considers any necessity of sending the juvenile for any behaviour modification, then necessary therapy and psychiatric support be provided to the juvenile in conflict with law.
10. The parents of the juvenile to ensure that the juvenile will pursue his academic career. Direct service is permitted.
(GITA GOPI,J) Maulik Page 16 of 16 Downloaded on : Thu Apr 20 20:44:53 IST 2023