Chunder, J. - (1.) This Rule was issued at the instance of two accused persons against a conviction of them under section 379 of the Indian Penal Code and a sentence of fine for each of them. An appeal to the learned Sessions Judge of Burdwan against this decision of the Magistrate, 1st Class, Kalna, was dismissed. It is unnecessary for me either to go into the facts or to express any opinion on facts in view of the order I am going to pass.
(2.) It appears that one of the accused persons, namely, Tapan Roy, is said to be under the age of 12. That was stated in the petition. Tapan was granted exemption from personal attendance in Court and was allowed to be present through a Mukhtear. The learned Magistrate even showed favour to him by not making him appear at the time of examination under section 342 of the Code of Criminal Procedure but examined the Mukhtear in his place.
(3.) The first point that was raised by Mr. Choudhury before me was that this examination of the Mukhtear vitiated the entire trial. I am not prepared to go so far as that. As was pointed out by Lodge, J., in Adeluddin v. King Emperor. (1) (1945) 49 C.W.N. 537] , it was "a wrong exercise of discretion of the Magistrate" to do so. "A wrong exercise of discretion" and vitiating of the entire trial are two different things. If it is a wrong exercise of discretion then it will have to be seen whether on the facts there has been a miscarriage of justice but it is unnecessary for me to go into the question of law more fully in this case. In the statement made by the Mukhtear he is said to have admitted that the age of the accused was 13 and not under 12. No one can make an admission on behalf of an accused person in a criminal case except the accused himself. Therefore the learned Magistrate acted very wrongly in accepting this admission and in not going into the evidence of the defence witnesses who were produced to substantiate that the age of the accused was not yet 12. It is for this reason that the conviction and sentence of the accused persons are set aside and the case is remanded to the learned Magistrate. He will proceed to the personal examination of the accused Tapan and also of his co-accused and insist upon the personal attendance of Tapan Roy. He will examine again all defence witnesses and he will take pains to decide as to the ago of the accused from the oral evidence and from such other facts as may come to his notice according to law and if the accused is under the age of 12 give him the benefit of the presumption in the Indian Penal Code. If he is above the age he will proceed according to law.;