- (1.) The application under S. 401 read with S. 482 of the Crl. Procedure Code, 1973 is directed against the impugned order dated 26th November, 1984, passed by the learned Additional Session Judge, First Court Suri, District Birbhum, by which the learned Judge rejected the prayer on behalf of the three present petitioners for an enquiry under the provisions of S.25 of the West Bengal Children Act, 1959 (Act XXX), hereinafter referred to as the "said Act", for determination as to whether they were children within the meaning of the said Act. The learned Judge held that since charges have been framed already and the prayer was made at a very late stage, when the case was already fixed for evidence, there was no scope for holding any enquiry at that stage and S.25 of the said Act could not be invoked any longer.
(2.) The learned Advocate appearing on behalf of the petitioner has submitted that the provisions of the said Act are mandatory and S.28 is a bar to the trial of any child being charged with or tried for any offence with an adult. In this case the three petitioners are being tried along with 30 other persons on charges under Ss.148/302/149/307 of the Indian Penal Code. In support of his submissions, the learned Advocate has relied upon a Full Bench decision reported in AIR 1978 Calcutta 529 (Dilip Saha v. State of West Bengal) and in particular to paragraph 20 thereof, wherein it has been observed as follows : "Now, supposing either the officer producing the offender or the Court fails to perform the duties cast on them by S.40, it cannot be urged that a juvenile delinquent's right to be treated under the provisions of the 1959 Act is taken away. On the contrary, in course of the proceeding or even at the stage of trial if it is found or brought to the notice of the Court that the offender at the time of the commission of the offence was a child, it has no other alternative but to split the case and direct a separate trial under S.28 of the Act which runs thus : "Section 28 (1) - Notwithstanding anything to the contrary contained in S.239 of the Criminal P.C., 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 Criminal P.C., 1898, or any other law for the time being in force, they would, but for the prohibition contained in Sub-s.(1) be tried and charged together, the Court taking cognizance of the offence shall direct separate trial of the child and the adult".
(3.) The learned Advocate appearing on behalf of the State has submitted that though it is unfortunate that the matter has been brought to the notice of the court after framing of the charges, but still in view of the provisions of the said Act and the said judgment of the Full Bench of this Court, there is no alternative but to order for an enquiry as envisaged in S.25 of the said Act.;