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2024 DIGILAW 1237 (GUJ)

AAKASH KALUBHAI VASKALE v. STATE OF GUJARAT

2024-06-13

GITA GOPI

body2024
ORDER : 1. RULE. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent-State. 2. The present revision application has been filed by the applicant-revisionist under section 102 of Juvenile Justice (Care And Protection of Children) Act, 2015, (hereinafter referred to as ‘J.J. Act’ for short), making a prayer for regular bail to the applicant, who was aged about 17 years at the time of alleged act. 3. The FIR was registered before the Junagadh Taluka Police Station as C.R. No. 11203025240006 of 2024 for the offences punishable under sections 376(3), 376(2) of IPC and sections 5(j)(2), 5(L), 5(N), 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the ‘POCSO Act’). 4. The father of the juvenile in conflict with law had moved the principal Magistrate of Juvenile Justice Board of Junagadh by filing Criminal Misc. Application No. 251 of 2024, where by an order dated 23.02.2024, the application came to be rejected, thus thereafter moved the Children Court by filing Criminal Appeal No. 24 of 2024. The legality and propriety of the order is under challenge before this Court in the present revision application moved under section 102 of the J.J. Act. 5. Learned advocate Mr. Kumar H. Trivedi for the juvenile in conflict with law submitted that at the time of offence, as alleged, the juvenile was in affectionate relation with the victim, which culminated into physical relation, and the victim and accused are relatives residing in the same vicinity. Mr. Trivedi submitted that after the physical relation, the victim girl who was stated to be 13 years, got impregnated, but the pregnancy was terminated by the order of the concerned Court. 5.1 Advocate Mr. Trivedi submitted that Radiologist opinion was recorded for the age of the victim on 10.01.2024, where the Radiology bone age of the victim was shown as 15+-2, hence, the age factor is not definite. 5.2 Advocate Mr. Trivedi further stated that the applicant himself is a juvenile, and stated that the trial court was required to call for the psychological report to examine the mental capacity of the juvenile in conflict with law. Mr. Trivedi stated that the J.J. Board as well as learned appellate Court was required to reflect the opinion of the psychologist in the order to examine the mental capacity of the juvenile. Mr. Trivedi stated that the J.J. Board as well as learned appellate Court was required to reflect the opinion of the psychologist in the order to examine the mental capacity of the juvenile. The learned judge has not even referred to any preliminary assessment, if at all of the juvenile. 5.3 Advocate Mr. Trivedi submitted that sub-section (1) of section 15 along with the proviso deals with the preliminary assessment with regard to physical and capacity to commit such offence and ability of the juvenile to understand the consequences of the offences, and even to observe the circumstances under which the alleged offence came to be committed and for that purpose the Board is to required to take the assistance of experienced psychologists or social workers or other experts. 5.4 Advocate Mr. Trivedi further stated that under section 19, the power of Children Court, notes about receipt of the preliminary assessment from the Board under section 15, and thereafter the Children Court is required to decide whether there is a need for trial of a child as an adult. The Children Court may also take the assistance of experience psychologist or psycho social worker or other experts to examine the fact of mental and physical capacity of the juvenile in conflict with law to commit such offence and the ability to understand the consequences of the offence. 5.5 Advocate Mr. Trivedi submitted that the learned appellate Court has not considered the actual factors to assess the juvenile’s mental status, but has noted of the one criminal antecedent of his father. Mr. Trivedi submitted that as per his instruction only one case has been registered against the father. 6. Mr. 5.5 Advocate Mr. Trivedi submitted that the learned appellate Court has not considered the actual factors to assess the juvenile’s mental status, but has noted of the one criminal antecedent of his father. Mr. Trivedi submitted that as per his instruction only one case has been registered against the father. 6. Mr. Hardik Mehta, learned APP for the respondent State submitted that the age certificate with the Radiological Born assessment is of 15+-2 and, thus, accordingly the age of the victim, as has been noted in the police record as of 13 years, is rightly considered by the J.J. Board and the appellate Court, hence, learned APP submitted that this very fact of considering the age of the victim, the mental and physical capacity could be understood of the juvenile, who was aged about 17 years, who would have been in the knowledge of the gravity of the offence, and would be mature enough to understand the consequences of the offence, and submitted that the order passed by the appellate Judge is just and legal and thus, urged to reject the revision application. 7. Heard learned Advocates on both the sides and perused the material on record. For the purpose of conducting the preliminary assessment, as laid down by the Hon’ble Supreme Court in Barun Chandra Thakur Vs. Master Bholu & Anr. in Criminal Appeal No. 950 of 2022, declared on 13.07.2022, it is imperative to take the assistance of psychologist or psycho-social worker or other experts, who are experienced in working with children in difficult circumstances. The most important aspect, which has been very specifically embolden under sub-rule 10A(2) is while making preliminary assessment, the child shall be presumed to be innocent unless proved otherwise. The Board while passing the preliminary assessment order regarding the need for trial of the said child as an adult, shall have to assign reason for the same. The Board decides whether the child should be transferred on the finding of probable cause of the child’s guilt. Clause (xvi) of section 3 of the J.J. Act, for general principles for the administration of the Act, makes it clear that the basic procedural standard of fairness shall be adhered to, including the right to a fair hearing, rule against bias etc. Clause (xvi) of section 3 of the J.J. Act, for general principles for the administration of the Act, makes it clear that the basic procedural standard of fairness shall be adhered to, including the right to a fair hearing, rule against bias etc. The decision passed by the Board must necessarily be supported by reason, in as much as, assigning reason is the best way out to demonstrate the application of mind. 8. This Court in an earlier Criminal Revision Application No. 1024 of 2023 (Child in conflict with law through Guardian v. State of Gujarat) vide judgment dated 15.09.2023 had given the guidelines for the JJB and the Children’s Court to follow incase of a juvenile where the Court was required to have (i) Objective satisfaction (ii) Subjective satisfaction and (iii) Judicial satisfaction and to examine the case the juvenile by following the guidelines of the National Commission for Protection of Child Rights which were framed after the case of the Hon’ble Apex Court in Barun Chandra Thakur Vs. Master Bholu & Another in Criminal Appeal No. 950 of 2022, declared on 13.07.2022. 9. Since, nothing has been brought on record regarding the mental and physical capacity of the juvenile, and the fact of any understanding of the consequences of his act, and taking into consideration the role attributed to the juvenile and the circumstances under which the offences came to be committed, and as the trial will take its own time to conclude, this Court finds this to be a fit case where discretion could be exercised in favour of the juvenile. 10. In the result, the Revision Application is allowed. The juvenile in conflict with law is ordered to be released on regular bail in connection with FIR being C.R. No. 11203025240006 of 2024 registered with Junagadh Taluka Police Station, upon his father executing a personal bond in the sum of Rs.10,000/- (Rupees Ten Thousand Only) with a surety of the like amount before the Children’s Court. 11. 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 behavior modification then necessary therapy and psychiatric support be provided to the juvenile in conflict with law. 12. Moreover, if the Probation Officer considers any necessity of sending the juvenile for any behavior modification then necessary therapy and psychiatric support be provided to the juvenile in conflict with law. 12. The father of the juvenile to ensure that the juvenile will not fall into bad company. 13. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.