No Direct Involvement In Crime: Gujarat High Court Grants Bail To "Child In Conflict With Law" Accused Of Abetting Suicide

The Gujarat High Court recently granted bail to a 'child in conflict of law' (CCL) accused of allegedly "abetting the commission of suicide" of four deceased persons while observing that he had no direct involvement for the court to "consider criminal culpability".

In doing so the court in its order, also considered the applicability of Section 54 BNS (Abettor present when offence is committed) to the CCL in the present case, a 17-year-old boy.

The provision states that whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence punishable under.

Taking note of the provision, a single judge bench of Justice Gita Gopi observed, “The Section 54 of the BNS is with regard to the presence of the person when the act or offence is committed. Section 54 is a deeming provision to consider that when the person is present, he would be liable to be punished as an abettor and would be punished for the consequences of the abetment. Here the CCL had not committed such an act or offence.”

The order was passed in a revision plea moved by the mother of the boy as his guardian under the Juvenile Justice (Care & Protection of Children) Act challenging the orders of the Additional Sessions Judge and the Principal Magistrate, Juvenile Justice Board, who had rejected the CCL's bail plea.

Background

An FIR was registered for the offences under Sections 108(Abetment of Suicide), 115(2) (voluntarily causing hurt), 308(5) (extortion) and 54 of the BNS.

The FIR notes that the accused no. 1 had to recover Rs 20,00,000/- from the deceased. The accused no.1 got the note executed in writing regarding the amount due. The deceased meanwhile tried to recover his money from another person who had taken Rs 5,53,000 five years ago and was not returning it to the deceased and was harassing him. Due to the "atrocious and forcible" demand for money, the deceased along with his wife, son and daughter committed suicide.

The allegations were that because of the atrocious demand for money, the deceased was forced to commit suicide. The allegations against the CCL are of "abetting in the commission of suicide".

The CCL was working with the main accused in his factory whose money was due to the deceased. It was alleged that the CCL had picked up a shovel which was lying in the factory and had given it to the accused No.1 who had beaten the deceased man with the shovel. The specific allegation is that under "force and threat of accused No.1, the deceased" and his son were "forced to sign on a note" and that "act was video graphed by the CCL in his mobile and the whole incident was captured in the CCTV Footage".

The Advocate appearing for the CCL submitted that both the Courts have failed to examine the role of the child in conflict with the law in the alleged offence and have failed to appreciate that the act of recording the video was not intentional and the CCL would not have known the consequence of his act.

The submissions made by the Additional Public Prosecutor was that the applicant may appear to record the incident in the form of a video but if the FIR is read in detail, the act of CCL is abetting the offence that gets clarified in the CCTV Footage.

Findings

Noting that Section 12 of the JJ Act is to be considered while hearing a CCL's bail plea the high court said, that the provision mandates that the juvenile, in a bailable or non-bailable offence, is arrested or detained or appears or brought before the Court, "has to be released on bail with or without surety or place under the supervision of the Probation Officer or under the care of any fit institution of fit person".

But, the provision states, he shall not be so released if there appears to be "reasonable grounds for believing" that the release is likely to bring him into association with any known criminal or expose him to "moral, physical or psychological danger or that his release would defeat the ends of justice", the high court noted.

"Both the Courts below have not examined the aspect by calling upon the Report of the Probation Officer. Further, both the Courts have also have failed to note as to whether the CCL would be exposed to moral, physical or psychological danger and to examine these aspects, the Report was required to be called upon. It was also required to be considered whether the CCL's release would defeat the ends of justice," Justice Gopi said

The court thereafter said that both the courts below were required to call upon the psychologist's Report to examine whether the deeming provision under Section 54 of BNS could be attracted "qua the CCL and whether the presence of CCL at the place of offence was intentional".

The high court said that the CCL was "not related with the other co-accused" and as per the application, he was going to the main accused's factory to learn about the work and "co-incidentally had gone with the accused at the Factory".

"The act which is specifically attributed to the CCL is of recording the writing which was being executed while the alleged act of suicide of the deceased...and his family members was committed in an open space near the...Railway tracks. Both the learned Courts were required to consider the act of CCL in connection with the facts as alleged. There is no direct involvement of CCL to consider as criminal culpability. Further CCL's detention would affect him mentally, physically and emotionally and his development would get obstructed. Considering the role of the child in conflict with law, discretion is exercised in favour of the child to enlarge him on bail," the court said

Allowing the revision plea, the high court set aside the orders of the sessions court and the juvenile justice board. It further directed the minor boy to be released on bail, on his mother, executing a personal bond of Rs. 10,000 before the juvenile justice board.

Case Title: X v. State of Gujarat & Others

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