Back
Calcutta High Court
SANKAK PRASAD MITRA, C. J., S. K. DATTA AND A. N. BANERJEE, JJ.
Dilip Saha - Appellant
Versus
State of W.B. - Respondents
Full Bench Reference No. 1 of 1978
Decided On : 25 July 1978
WEST BENGAL CHILDREN ACT - AGE DETERMINATION - TRIAL OF JUVENILE DELINQUENTS - RELEVANT DATE: The relevant date for determining whether an accused is a child within the meaning of the West Bengal Children Act, 1959, is the date of commission of the offence, not the date of trial.
Fact of the Case:
The petitioner, a juvenile delinquent, was tried along with an adult accused for an offence committed when he was a child. The Sessions Judge held that he had jurisdiction to proceed with the trial, prompting the petitioner to challenge the order in a Rule.
Finding of the Court:
The Court held that the relevant date for determining whether an accused is a child within the meaning of the West Bengal Children Act, 1959, is the date of commission of the offence, not the date of trial. The Court emphasized the object of the legislation, which is to provide special procedures and protections for juvenile delinquents, and noted that denying these benefits based on the accused's age at trial would defeat the purpose of the Act.
Issues: 1. Whether the relevant date for determining whether an accused is a child within the meaning of the West Bengal Children Act, 1959, is the date of commission of the offence or the date of trial. 2. Whether a juvenile delinquent can be denied the benefits of the Act based on their age at the time of trial.
Ratio Decidendi: 1. The Court interpreted the provisions of the West Bengal Children Act, 1959, particularly Sections 2(d), 2(h), 28, 40, and 49, to conclude that the legislature intended to protect juvenile delinquents from the rigors of the general law and provide them with special procedures and protections. 2. The Court emphasized that the object of the Act is to reform and rehabilitate juvenile delinquents, and that denying them the benefits of the Act based on their age at trial would defeat this purpose. 3. The Court also considered the constitutional implications of denying a juvenile delinquent the benefits of the Act, noting that it would violate Article 20(1) of the Constitution, which prohibits subjecting a person to a penalty greater than that which could have been inflicted at the time of the offense.
Final Decision: The Court made the Rule absolute, setting aside the orders of the Sessions Judge that framed charges against the petitioner and directed a joint trial with the adult accused. The Court directed that the petitioner be tried afresh under the provisions of the West Bengal Children Act, 1959, and ordered the records to be sent back to the Sessions Judge for forwarding to the appropriate court for trial.
SANKAR PRASAD MITRA, C. J. :- A Division Bench consisting of Barooah and Majumdar, JJ. has referred this Rule to a Full Bench in accordance with the provisions of Chap. VII of the Appellate Side Ruled. The question for determination by Che Full Bench is as follows :-
"For the purpose of determining whether an accused is a child or not within the meaning of S. 28 of the West Bengal Children Act (Act XXX of 1959), is the age to be determined with reference to the date of commission of the offence or when the accused is charged with the offence and is brought to trial or some other date."
2. Sec. 28 of the West Bengal Children Act, 1959 runs thus :
"28. (1) Notwithstanding anything to the contrary contained in S. 239 of the Code of Criminal Procedure, 1898, or any other law for the time being in force, no child shall be charged with or tried for, any offence together with an adult.
(2) Where a child and an adult are accused of an offence for which under S. 239 of the Code of Criminal Procedure, 1898, or any other law for the time being in force, they would, but for the prohibition contained in sub-sec. (1), be charged and tried together, the court taking cognizance of the offence shall direct separate trials of the child and the adult."
3. Under S. 8 (1) of the General Clause Act, 1897 the references to the Code of Criminal Procedure, 1898 in S. 28 of the West Bengal Children Act, 1959 have to be construed as references to corresponding provisions in the Code of Criminal Procedure, 1973.
4. On the question referred to the Full Bench there are two conflicting decisions of two Division Benches of this Court. The first decision was of Barooah, and H. N. Sen, JJ. in Madan Prodhan v. State of West Bengal, reported in 1978 (1) Cal LJ 224. The judgment was delivered on Jan. 7, 1976. In this case it was admitted that the appellant had not attained the age of 18 years on the date of commission of the offence. In other words, on the date of the offence the appellant was a child within the meaning of S. 2 (d) of the West Bengal Children Act, 1959. Sec. 28 (1) of the Act, as we have seen, prohibits a joint trial of a child and an adult. In spite thereof, the appellant was tried along with one Kartick Debnath on a charge under S. 302 I. P. C., on the allegation that the appellant with the other accused had, on March 24, 1973, committed murder intentionally or knowingly by causing death of one Ramlal in furtherance of a common intention of them both. The Sessions Judge found the accused persons guilty of the charge and sentenced each of them to suffer imprisonment for life.
5. The question that arose before the Division Bench was whether or not after the new Criminal P. C. came into force, the provisions of the said Act would cease to apply to cases of juvenile delinquents.
6. The Division Bench has held that S. 5 of the Code of 1973 has saved the operation of local or special laws. In other words, such laws would remain unaffected by the Code unless there is any specific provision to the contrary either in the Code itself or in any local or special law. Section 27 of the Code permits trial of a juvenile by the Courts of certain Magistrates, where the offence committed is not punishable with death or imprisonment for life. This section does not in any way affect the provisions of the 1959 Act nor has it taken away the jurisdiction conferred by the said Act. The appellant being a "child" on the date of the commission of the offence for which he was convicted, his trial along with Kartick who was an adult, the Division Bench said, was clearly without jurisdiction as the said trial was held in contravention of the specific provisions of S. 28 (1) of 1959 Act. That being so, the conviction and the sentence so far as the appellant was concerned, were liable to be set aside.
7. The other Division Bench judgment we have referred to was that of Chanda and Sudhamay Basu, JJ. in Govinda Chandra Bhowmick v. State of West Bengal reported in (1977) 4 Cal
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
