CR.A/36/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 36 of 2007 With CRIMINAL MISC.APPLICATION No. 2750 of 2007 In CRIMINAL APPEAL No. 36 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PRAVINKUMAR DASRATHBHAI SANKALCHAND KADIA - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR JM BAROT for Appellant/applicant, MR SP HASURKAR, ADDL.PUBLIC PROSECUTOR for respondent/opponent ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and CR.A/36/2007 2/5 JUDGMENT HONOURABLE MR.JUSTICE KS JHAVERI Date : 18/06/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This appeal under Section 374 of the Code of Criminal Procedure has been preferred by the appellant/applicant-original accused no.2 viz., Pravinkumar Dasrathbhai Sankalchand Kadia, who has been convicted to undergo life imprisonment and fine of Rs.5,000/-, in default, to undergo S.I. for one year for the offence under Section 120(B) read with Section 302 Indian Penal Code and also convicted to undergo two years R.I. and fine of Rs.5,000/-, in default, to undergo S.I. for one year for the offence under Section 396 of the Indian Penal Code by the learned 2nd Additional Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.71 of 2004 vide judgment and order dated 07.10.2006. 1.0 Against the aforesaid judgment and order of conviction and sentence, the present appellant/applicant has preferred the above referred Criminal Appeal which has been admitted on 07-08-2007. Along with the appeal, he has also preferred an application being Criminal Misc. Application No.2750 of 2007 under Sec.389 of Cr.P.C. through learned counsel for releasing him on bail, pending CR.A/36/2007 3/5 JUDGMENT hearing and final disposal of his appeal. 3.0 This Court has heard learned counsel for the appellant/applicant, Mr.J.M.Barot and the learned Addl. Public Prosecutor. 3.1 Learned counsel for the appellant/applicant has raised the contention before this Court that at the time of incident, the appellant/applicant was below 18 years of age. In support thereof, he has produced birth certificate issued by the competent authority and an order was passed by this Court on 19-11-2007. 4.Thereafter, vide order dated 26-2-2008 directions were given by this Court to the court below to hold an inquiry. In pursuance thereof, court below has held inquiry and submitted report to this Court and a clear finding has been given supporting the say of the appellant/applicant which forms part of the present proceedings. 4.1 Thus, it is established from the evidence on record which is conducted by the court below at the time of inquiry that date of birth of the appellant/applicant is 16-7-1986. However, the said contention has not been raised by the appellant/applicant into the court below at the time of conducting the sessions case in question. 4.2 Facts however remain that on the date of incident i.e. on 17-9-2003, the CR.A/36/2007 4/5 JUDGMENT appellant/applicant was below 18 years of age. Therefore, as per the amended Act, he is required to be treated as a juvenile and the matter is required to be remanded to the trial court for deciding it on merits. 4.3 In a given case of co-accused, this Court has dealt with the same issue in Criminal Appeal No.1880 of 2006 with Cri.Misc.Appln.No.12589 of 2006 in Criminal Appeal No.1880 of 2006 with Cri.Misc.Appln. No.12591 of 2006 in Criminal Appeal No.1880 of 2006 and vide oral judgment dated 26-2-2008 remanded the matters to the trial for consideration afresh. It would therefore be appropriate if this matter is also remanded to the trial court for consideration afresh. 4.4 The appeal is accordingly allowed. Judgment and order of conviction and sentence dated 7- 10-2006 delivered by the learned 2nd Additional Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.71 of 2004 are quashed and set aside qua the present appellant/applicant. The matter is remanded to the Juvenile Court for deciding it on merits afresh. The appellant/applicant is directed to appear before the Juvenile Court on or before 19th August, 2008. On appearance, the Juvenile Court is directed to decide the matter on merits within a period of six months from the date of appearance of the appellant/applicant. The CR.A/36/2007 5/5 JUDGMENT appellant/applicant is hereby ordered to be released on temporary bail from the date of his release on his furnishing personal bond in the sum of Rs.5,000/- (Rupees Five Thousand only) with one surety of the like amount to the satisfaction of the trial court for a period of two months or till the competent court considers the matter on merits, whichever is earlier. 4.5 In view of the aforesaid order passed in main appeal, Cri.Misc.Appln.No.2750 of 2007 for bail does not survive and is disposed of accordingly. (R.P.DHOLAKIA,J) (K.S.JHAVERI,J) radhan/