A magistrate or court not empowered to deal with a juvenile delinquent under the Juvenile Justice Act must make a preliminary enquiry to determine whether the person concerned is a juvenile before referring the matter to the Juvenile Court.

1. THIS Criminal Revision is directed against the order dated 13-11.-1991 passed by the Sessions Judge, purulia in Sessions Trial No. 13 of 1991 (Sessions Case No. 16/1991. By the said order the learned Sessions Judge turned down the plea of the present petitioners who are facing trial in the said case that they were juvenile on the date of occurrence and as such they were required to be dealt with by the juvenile Court under the Juvenile Justice Act 1986 and not by the Court of session. After the conclusion of the prosecution evidence when the petitioners-accused were being examined under section 313 Criminal Procedure Code the petitioner no. 1 Sunil Das gave his age on the date of examination namely on 21-9-91 as 18 years and the petitioner ho. 2 Sudhangsu Das who is the elder brother of the petitioner no. 1 gave his age on that date as 19 years. The date of occurrence was 12-10-88. If the age as given by each of the petitioners while examined under section 313 Criminal Procedure Code were true, in that case each of the petitioners was below 16 years of age on the date of occurrence and in that event they are required to be dealt with under the Juvenile Justice Act, 1986. On the basis of the age given by the petitioners while examined under section 313 Criminal Procedure Code a petition was moved before the learned sessions Judge, on behalf of the petitioners for necessary steps to deal with their case under the Juvenile Justice Act 1986. Thereafter the learned sections Judge embarked upon an enquiry into the matter and disposed of the same by his impugned order holding that the petitioners were not minors on the date of occurrence and as such there was no ground of passing order for their separate trial.- -

2. IN assailing that order Mr. Hirnangshu Dey appearing for the petitioners submitted that the plea of separate (trial or for that matter for being dealt with under the Juvenile Justice Act may be taken at any stage, however belated may it be. In support of this submission he also relied on a decision of the Supreme court reported in AIR 1984 Supreme Court, 237 (Gopinath Ghosh vs. Stale of West Bengal. That was a case where: the plea that the accused was a minor and was liable to be dealt with under the West Bengal Children Act (30 of 1959) was taken for the first time in appeal before the Supreme Court. The Supreme court having regard to the beneficial provision of a very progressive statute like the West Bengal Children Act, entertained that plea even at that belated stage. Indeed, in view of the Supreme Court decision there is no dispute now that such a plea can be taken even at a belated stage. As a matter of fact, in this case the plea was also entertained] by the learned Sessions Judge after the conclusion of the prosecution evidence and the examination of the accused under Section 313 Criminal Procedure Code. Mr. Hirnangshu Dey also relied on a decision reported in 1987 C. Cr. LR. (Cal) 174 (Pradip Ghosh vs. The State)where also the plea of minority was taken for the first time in the appeal before the High Court. In both those cases the Supreme Court and the High Court respectively framed issue regarding the age of the accused appellant and directed the Court of Session to enquire into and certify the age of the appellant. In both the cases the Court of Session in turn after enquiry, certified that the appellant was minor on the date of occurrence. Mr. Hirnangshu Dey also cited a decision of the Bombay High Court reported in 1990 Cri. L.J. 351 (Sarita vs. State) in support of his contention that a juvenile delinquent is entitled to be dealt with only by a court mentioned in the Juvenile Justice Act. 1986 and not by the ordinary court of Magistrate or the Court of Session. Indeed, there is NO dispute with the proposition that a juvenile delinquent cannot be dealt with by any ordinary court except such court as has been empowered under the Juvenile Justice Act. Mr. Dey argued that since the petitioners had