Gullusing Bablusing Sikalkar ... vs State Of Gujarat
2022 Latest Caselaw 3509 Guj

      R/CR.RA/490/2021                               ORDER DATED: 25/03/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL REVISION APPLICATION NO. 490 of 2021

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     GULLUSING BABLUSING SIKALKAR (JUVENILE) THRO JAMNAKOR
                      BABLUSING SIKALKAR
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR VIRAL J VYAS(6233) for the Applicant(s) No. 1
MR. HARDIK SONI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 25/03/2022

                                ORAL ORDER

1. Rule returnable forthwith. Learned APP waives service of

notice of rule for and on behalf of respondent-State.

2. By way of present application preferred under Section 102 of

the Juvenile Justice (Care & Protection of Children) Act, 2015 as

well as under Sections 397 of Cr.P.C., the applicant has prayed for

following relief:

"(B) Your Lordship may be pleased to quash and set aside order dated 05.06.2021 passed by the learned Principal Magistrate Juvenile Justice Board, Surat and order dated 11.06.2021 passed by the learned Additional Sessions Judge, Surat in Criminal Appeal No.181 of 2021 and Release the juvenile i.e. Gullusing Bablusing Sikalkar on regular bail in connection with the offence registered as FIR No.11210045211311 of 2021 with Pandesara Police Station, Surat city on such terms and condition as may be deemed just and proper in the facts and

R/CR.RA/490/2021 ORDER DATED: 25/03/2022

circumstances of the case and in the interest of justice."

3. Heard learned advocate for the applicant and learned APP for

the respondent-State.

4. It is submitted by learned advocate appearing for the applicant

that applicant is falsely implicated in the said offence and has not

committed any offence. That leaned Juvenile Justice Board, Surat

and learned Additional Sessions Judge, Surat have failed to

appreciate Section 12 of Juvenile Justice (Care & Protection of

Children) Act, 2015. That leaned Juvenile Justice Board, Surat and

learned Additional Sessions Judge, Surat have passed the order only

on the ground of presumption and without there being any cogent

evidence against the applicant. That if the applicant is kept in the

observation home then there are high chances that he would be in

contact with other criminals and this would be against the

development of the applicant. It is further submitted that, if the

applicant is released on bail, he shall not enter into Dist-Surat till

final disposal of the trial except to remain present before the

competent court of law. Hence, it is requested by learned advocate

appearing for the applicant to allow present application.

5. Learned APP appearing for the respondent-State has strongly

R/CR.RA/490/2021 ORDER DATED: 25/03/2022

objected the submissions made by learned advocate for the applicant

and submitted that prima facie involvement of the present applicant

in the offence is clearly made out by the prosecution. It is further

submitted that present applicant, who is the juvenile, was a member

of the illegal assembly at the time of committing the offence by the

other co-accused persons. That present applicant in conflict with law

also involved in other such type of offences and as per the report of

the Probation Officer, possibility of indulging in same offences

cannot be ruled out, if the child in conflict with law would be

released by this Court. That there are every possibility to indulge in

another crime by the present applicant. Hence, it is requested by

learned APP appearing for respondent-State to dismiss the present

application.

6. Having heard learned advocate for the applicant and learned

APP appearing for the respondent-State and documents produced on

record, it appears that complaint filed by one Kapil Udaynath Swai

residing at the address mentioned in the FIR with his family and

doing as Master in Factory. On 04.03.2021, in morning, he went to

his job and returned back at home and then after for the purpose of

cooking, he sent his son for purchasing eggs and Gautam is standing

R/CR.RA/490/2021 ORDER DATED: 25/03/2022

with him at that time at 9:00 p.m. from his village Babulal @ Lambu

Sada Swai, Mithun Subhash Padhi, both are residing at Pandesara,

Surat and Poonamchand Gaud and Dhoba Bhagwan Swai and

Nilachal Gaud and their friend Balram @ Baliya Swai and Gullusing

came with weapons in their hand. Out of that Babulal @ Lambu

Swai and Mithun having sword in their hands and Nilachal having

Hathoda and Balram @Baliya Swai having a wooden stick and then

after entered in the house of the complainant. Babulal @ Lambu

Swai gave blow of sword on the head of Gautam then after

complainant intervened at that time Baliya Swai caught hold and

take outside of the house. Babu Swai had told Nilachal that broken

the legs and hands after that Nilachal gave the blow on legs and hand

of the son of the complainant. It is further alleged that Balram @

Baliyo gave a blow by the stick and Mithun gave a blow of sword to

the son of the complainant at that time complainant tried to save his

son at that time Poonamchand, Gullusing, Dhoba Bhagwan tried to

stop the complainant with weapon at that time the neighbour was

present but after seeing this incident, they entered in their house after

that since the people were gathered, the accused persons have run

away and after that complainant had noticed that Gautam was lying

R/CR.RA/490/2021 ORDER DATED: 25/03/2022

in bleeding condition and having the injury also and then after police

came and 108 Ambulance also came and then after Gautam had

taken to Civil Hospital for treatment and with these sorts of

allegations the FIR came to be lodged.

7. This Court would like to refer Section 12 of the Juvenile

Justice Care and Protection of Children Act, 2015:

"(1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, 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 with or without surety or placed under the supervision of a probation officer or under the care of any fit person: Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the persons release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision. (2) When such person having been apprehended is not released on bail under sub-section (1) by the officer-in- charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.

(3) When such person is not released on bail under sub- section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.

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(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."

8. It appears that charge-sheet is filed by the Investigating

Agency and no weapon is recovered from the present applicant. As

per the submissions made by learned advocate appearing for the

applicant, present applicant is the only juvenile accused in the

offence.

9. Considering the age of the present applicant and alleged

involvement as per the prosecution case, he has not caused any

injury to the complainant or any other witnesses nor any weapon was

recovered from his custody. Present applicant being a juvenile at the

age of 17 years and 2 months at the time of committing the alleged

offence, prayer made by the applicant requires consideration.

10. Accordingly, present application is hereby allowed. The

impugned judgment and order dated 05.06.2021 passed by the

learned Principal Magistrate Juvenile Justice Board, Surat and order

dated 11.06.2021 passed by the learned Additional Sessions Judge,

Surat in Criminal Appeal No.181 of 2021 shall be quashed and set

aside.

11. The applicant is ordered to be released on regular bail in

R/CR.RA/490/2021 ORDER DATED: 25/03/2022

connection with an FIR being C.R. No.11210045211311 of 2021

registered with Pandesara Police Station, Surat City for the offence

punishable under Sections 143, 144, 147, 148, 149, 302, 341, 448,

450, 451, 452 and 307 of the Indian Penal Code and Section 135(1)

of the G.P. Act, subject to the conditions that the applicant shall;

[a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

[e] not enter into Dist-Surat till final disposal of the trial except to remain present before the competent court of law;

[f] furnish latest and permanent address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the learned Sessions Court concerned;

12. The Authorities will release the applicant only if he is not

required in connection with any other offence for the time being. If

breach of any of the above conditions is committed, the Sessions

Judge concerned will be free to issue warrant or take appropriate

action in the matter. Bail bond to be executed before the learned

Lower Court having jurisdiction to try the case. It will be open for

R/CR.RA/490/2021 ORDER DATED: 25/03/2022

the concerned Court to delete, modify and/or relax any of the above

conditions, in accordance with law. At the trial, learned Trial Court

shall not be influenced by the observations of preliminary nature,

qua the evidence at this stage, made by this Court while enlarging

the applicant on bail.

13. Rule is made absolute to the aforesaid extent. Direct service is

permitted.

(B.N. KARIA, J) SUYASH