High Court
Facts
Cri Appeal No.36 of 2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.36 OF 2025 Vijay Uddhav Ghatcherle..Appellant Vs.The State of Maharashtra..Respondent----Mr.Satej S. Jadhav, Advocate for appellantDr.Kalpalata Patil – Bharaswadkar, Addl. P.P. for respondent---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. DATE : FEBRUARY 20, 2025 ORDER :- This appeal under Section 101 of the Juvenile Justice (Careand Protection of Children) Act, 2015 (“the Act”, for short) is filedagainst the order of the Children’s Court dated 01.12.2022, refusing togrant the appellant bail in connection with Crime No.0097 of 2022,registered with Chakur Police Station, Dist. Latur, for the offencespunishable under Section 302, 201, 120-B, 212, 216 read with Section34 of Indian Penal Code and Sections 3(1)(i), 3(2), 3(3), 3(4) of M.C.O.C.Act and the consequential proceedings (charge sheet), being SessionsCase no.173 of 2022.
Legal Reasoning
5Cri Appeal No.36 of 2025(2) If during the inquiry by the Board or by theChildren’s Court, the person alleged to be in conflictwith law is found that he is not a child, such personshall not be tried along with a child. 7.Learned Addl. Public Prosecutor would submit that sincethe appellant is directed to be tried as an adult, this provision will notapply. We are not in agreement with the submissions made by her. Achild is a child. Only considering his age of understanding, he isdirected to be tried as an adult. Section 23 contains an overridingeffect to Section 223 of the Code Criminal Procedure. In our view,the appellant will have to be tried separately. He cannot be triedalong with the co-accused in view of this legal position. Theconfessional statements of the co-accused cannot be read againstthe appellant. Then, there remains the material in the nature ofC.C.T.V. footage indicating the appellant taking with him the victimon a motorbike. Since the appellant is just 21 years of age, the factthat he is taking education and the further fact that he has been inobservation home for a period of three years, we find it a fit case togrant him bail. Needless to mention, the observations made hereinabove are prima facie in nature. 6Cri Appeal No.36 of 20258.Hence, the following order:-(i)The appeal is allowed.(ii)The appellant be granted bail in connection with CrimeNo.0097 of 2022, registered with Chakur Police Station, Dist. Latur,for the offences punishable under Section 302, 201, 120-B, 212, 216read with Section 34 of Indian Penal Code and Sections 3(1)(i), 3(2),3(3), 3(4) of M.C.O.C. Act and the consequential proceedings (chargesheet), being Sessions Case no.173 of 2022, on executing P.R. bondin the sum of Rs.15,000/- (Rupees Fifteen Thousand) with one suretyin the like amount.(iii)The appellant shall not indulge in any criminal activity. Ifhe was found to have indulged in any criminal act, the prosecutionmay move the trial court/children’s court for cancellation of bail.Needless to mention, such application would be decided on its ownmerits. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP
Arguments
2Cri Appeal No.36 of 20252.The Children’s Court refused to grant bail to theappellant mainly for the following reasons :-9.The father of deceased has filed affidavit thathe has danger to his life from the accused, if releasedon bail. He has further submitted that he is receivingthreats and therefore, he has lodged N.C. ReportNo.593/2022 and there is every possibility oftampering with the prosecution witnesses. Merelybecause the charge sheet is filed, the J.C.L. is notentitled for grant of bail in such type of seriousoffence. Considering the nature of offence, therelease of the JCL will likely to bring him inassociation with known criminals or expose him tomoral, physical or psychological danger. Consideringthe facts, it is necessary to keep the JCL in theobservation home.3.Learned counsel for the appellant would submit that theappellant has been in the Observation Home for three years. Hewould, now, be sent to Yerwada Central Prison, Pune. The appellant isa student of Animal Husbandry. He is just 21 years of age. Hisfather is no more. The brother is behind the bars in connection withthe very crime. He, then, adverted our attention to the relevantprovisions of the Act, to ultimately urge for allowing the appeal.4.Learned Addl. Public Prosecutor would, on the otherhand, reiterate the reasons given by the Children’s Court. She wouldsubmit that the father of the victim has filed an affidavit claiming 3Cri Appeal No.36 of 2025threats at the hands of the appellant. A non-cognizable case hasbeen registered in this regard. She would further submit that itwould also be in the interest of the appellant not to grant him bail ashe is likely to come in contact with other criminals. On the merits ofthe case, she would submit that there are confessional statements ofthe co-accused. Those are admissible in view of Section 18 of theMaharashtra Control of Organised Crime Act. She would furthersubmit that the confessional statements indicate the appellant tohave actively participated in commission of the offence of murder.The competent Court has directed him to be tried as an adult.Learned Addl. Public Prosecutor urged for dismissal of the appeal.5.Considered the submissions advanced. Perused theorder impugned herein and the material relied on.6.Admittedly, the appellant, when allegedly committed theoffence, was a juvenile-in-conflict with law. He was, therefore, dealtwith by the Juvenile Justice Board. The J.J.B. has directed him to betried as an adult. For little over three years, the appellant has beenin the Children’s Home/Observation Home. Since he has attained theage of 21 years, he would now be shifted to the Yerwada CentralPrison. It is true that the proviso to Section 12 of the Act mandatesnot to grant bail if there appears reasonable grounds for believing 4Cri Appeal No.36 of 2025that the release is likely to bring that person into association withany known criminal or expose the said person to moral, physical orpsychological danger or the person’s release would defeat the endsof justice. Relying on the said proviso, J.J.B. had refused to grant theappellant bail. On completion of the investigation, charge sheetcame to be filed. Since the provisions of the M.C.O.C. Act have beeninvoked and there are confessional statements of the co-accused,those could be read in evidence against all the accused, provided allof them are charged and tried in the same case together with theaccused who made the confessional statement. Section 21 of theAct mandates that no child in conflict with law shall be sentenced todeath or for life imprisonment without the possibility of release, forany such offence, either under the provisions of the Act or under theprovisions of the Indian Penal Code or any other law for the timebeing in force. Section 23 of the Act speaks of no joint proceedings ofa child in conflict with law and a person not a child. The proviso ofSection 23 reads thus:-23. No joint proceedings of child in conflict with lawand person not a child.- (1) Notwithstandinganything contained in section 223 of the Code ofCriminal Procedure, 1973 (2 of 1974) or in any otherlaw for the time being in force, there shall be no jointproceedings of a child alleged to be in conflict withlaw, with a person who is not a child.