Gujarat High Court
Jasvantbhai Lallubhai Bhaliya (Father ... vs State Of Gujarat on 7 March, 2023
Author: Gita Gopi
Bench: Gita Gopi
R/CR.RA/161/2023 ORDER DATED: 07/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 161 of 2023
With
R/CRIMINAL REVISION APPLICATION NO. 162 of 2023
With
R/CRIMINAL REVISION APPLICATION NO. 163 of 2023
With
R/CRIMINAL REVISION APPLICATION NO. 164 of 2023
With
R/CRIMINAL REVISION APPLICATION NO. 121 of 2023
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JASVANTBHAI LALLUBHAI BHALIYA (FATHER OF JUVENILE IN
CONFLICT WITH LAW)
Versus
STATE OF GUJARAT
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Appearance:
ANAND R PATEL(7352) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, APP for the Respondent-State in CRRA 161/23,
162/23 & 163/23
MS SHRUTI PATHAK, APP for the Respondent-State in CRRA 164/23,
121/23
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 07/03/2023
ORAL ORDER
1. Since all the juveniles in conflict with law were 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, Page 1 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 506(2), 504, 34 of the IPC, their bail application came to be rejected. Against that, they through their parents filed Criminal Appeal before the Children's Court under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "the Act"), which came to be rejected and have filed 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 Page 2 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 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 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 Page 3 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 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 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 Page 4 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 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 as under:
"7. A conjoint analysis of the provisions contained in Sections 437 and 439 of the Code viz a viz Sections 8, 10 Page 5 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 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 Page 6 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 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 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 Page 7 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 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."
2. The bail for the juvenile in conflict of law who is also ordered to be tried in the Children's Court as that of an adult in an offence alleged to have been committed heinous offence, both the authorities while dealing with the bail application is required to keep in mind the provision of Section 12 of the Act. In all the matters, J.J. Board and the Appellate Court has referred to the Probation Officer's report. Page 8 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023
3. In Criminal Revision Application no.121/23, the report suggests that there is no criminal history of the family members. The child respects his elders who is studying in Std.12 pursuing Arts faculty and according to the child, he was not involved in the incident and further, the Probation Officer's report suggests that the child is interested in studies.
3.1 While in Criminal Revision Application no.161/23, the Probation Officer has observed that there is no criminal history of the family and the juvenile has good relations with the family members. He has completed his studies of Std.10. He was present at the place of incident. However, it has been noted by the officer that he had gone to the place of incident by stating the false facts before mother and he is not Page 9 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 under the control of his parents. However, it is further observed that the child is regular and cool minded and earlier, there was no name of the child in the quarrel. He has good relations with the deceased's family and as per the Probation Officer, he was there to see the quarrel.
3.2 In Criminal Revision Application no.162/23, as observed by J.J. Board, the Probation Officer's report suggests that the child respects his elders and that he had not done any such kind of offence, but the Probation Officer has noted that as per the FIR, the present applicant had caught hold of the deceased.
3.3 In Criminal Revision Application no.163/23, the Probation Officer's report suggest that the child is staying with his parents and younger sister. He is pursuing his education Page 10 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 in ITI after Std.10, but the Probation Officer records that the parents of the child had expressed no remorse for the offence and as per the Probation Officer, it would serve no purpose if the child is rehabilitated with the parents since the parents are not understanding the grievousness of the offence.
3.4 In Criminal Revision Application no.164/23, the child is staying with his parents and grand parents and his younger sister. As per the Probation Officer's report, the parents have shown no repentance for the offence and thus, according to him, it would not be fruitful to rehabilitate the child with the parents.
4. 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 Page 11 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 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 of the goddess and were proceeding towards pond, they had come near Vahanvati goddess temple. According to the complainant, he, Page 12 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 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 started abusing him, shouting that they are not going to leave him and would kill him. Further, the allegation is that all the Page 13 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 persons standing there started pulling Arjunbhai and gave kick and fist blows to him.
5. Ms. Shruti Pathak, learned APP for the respondent-State submits that the Probation Officer's report itself reflects the fact that the juvenile in conflict with law are not under the discipline of the parents. The atmosphere in the village between two sections has worsen, which had created the law and order situation and thus, submits that if at all these juveniles are released on bail, they may again create an atmosphere of distress and fear, which may lead to conflict and may result into further criminal offence. Ms. Pathak submits that the very intention of Section 12 is to ensure that the children do not get expose to such criminality and further their physical and psychological status does not Page 14 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 get affected and thus, stated that the releasing them on bail would perpetrate more offence and hence, urged to reject the application.
6. Ms. Akshitaba Solanki, learned advocate for the complainant states that she has instructions to appear in the matter. She seeks permission to file the Vakalatnama for the complainant in all the matters. She states that release of the juveniles would further create an atmosphere of fear in the village and that the juveniles who have participated in the crime had played active role and thus, urged to reject the applications.
7. The allegations against the present applicants are that they were present at the place of crime and further it is alleged that they had participated in the quarrel Page 15 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 and specific allegation is that they have given kick and fist blows to the deceased.
8. The Probation Officer's report in Criminal Revision Application nos.121/23, 161/23 and 162/23 does not reflect that rehabilitating the applicants with parents would create any bad influence. The quarrel which ensued was between two groups of persons and as per the FIR on the earlier day, the deceased himself had given a slap to one of the juvenile. The report of the Probation Officer in Criminal Revision Application nos.121/23, 161/23 and 162/23 suggests that if the applicants are rehabilitated, they may be taken care by the parents.
9. While in Criminal Revision Application nos.163/23 and 164/23, the report of the Probation Officer has not been found very conducive to consider the release of the Page 16 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 applicants on bail. The Appellate Judge in Criminal Appeal nos.23/22 and 24/22 has after observing the report of the Probation Officer has directed the parents to file the bail application again after conclusion of 3 months and the Juvenile Justice Board is directed to call upon the necessary report and to decide the bail application on merits. Since the liberty is reserved to the parents to approach Juvenile Justice Board to consider the bail application on the basis of the report, this Court finds that the order so passed by the Children's Court in Criminal Appeal nos.23/22 and 24/22 requires no interference and hence, the Criminal Revision Application nos.163/23 and 164/23 stand rejected with similar direction to the parents to approach the Juvenile Justice Board. Thus, the board would require to consider the bail application on merits Page 17 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 by calling upon the necessary report.
10. While in Criminal Revision Applications no.121/23, 161/23 and 162/23, the report of the Probation Officer is found to be positive. The rehabilitation of the child with the parents is found advisable.
11. In the result, Criminal Revision Application nos.121/23, 161/23 and 162/23 succeed and are allowed. Juveniles in conflict with law are ordered to be released on bail in connection with the FIR no.
11197059220396/2022 of Jarod Police Station, Vadodara Rural on the applicants' father/mother executing a personal bond in sum of Rs.10,000/- each (Rupees ten thousand only) with surety of like amount before the Children's Court.
12. It is directed that the Probation Officer shall monitor the conduct of the juveniles Page 18 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023 R/CR.RA/161/2023 ORDER DATED: 07/03/2023 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 juveniles for any behaviour modification then necessary therapy and psychiatric support be provided to the juveniles in conflict with law.
13. The parents of the juveniles to ensure that the juveniles will pursue their academic career.
Direct service is permitted.
(GITA GOPI,J) Maulik Page 19 of 19 Downloaded on : Mon Mar 13 20:34:03 IST 2023