N.G.Chaudhuri. J. - (1.) THE appellant Tarak Dolui alias Kanua has come up in appeal aggrieved with the judgment in Sessions Trial No. 3(7) of 1978 before the 9th Court of the Additional Sessions Judge, Alipore convicting him of an offence under Section 302 I.P.C. and sentencing him to imprisonment for life. It is alleged that on the night of 22.5.76 the appellant had stabbed Raton Betey of 178. Peari Mohan Roy Road in abdomen with a knife at about 22 hours in consequence of witch Ratan began to bleed profusely. THE injured Raton was removed to Calcutta Medical Research Institute (Calcutta Hospital) in a precarious condition and was admitted as an indoor patient, but he succumbed to his injuries on 22.5.76 at 6.30 A.M. In the Sessions Trial 19 witnesses were examined by the prosecution and evidence led was of four fold variety, viz. (I) evidence of eye witness, (2) dying declaration made by Ratan Betey to men and women who came near him immediately after he was injured responding to his cries, (3) extra-judicial confession the accused had made to other people regarding his stabbing Raton and reasons thereof and (4) evidence under section 27 of the Evidence Act leading to the discovery of a knife from a drain near a shop pursuant to a Statement made by the appellant when he was in police custody. Relying on these four-fold evidence the learned Additional Sessions Judge convicted the appellant.
(2.) AT the time of hearing the appeal Mr. Chaitanya Chandra Mukherjee, the learned Advocate engaged to defend the appellant, who is in jail, points out that the appellant was admittedly a child within the meaning of section 2(d) of the West Bengal Children Act 1959 and as such, Mr. Mukherjee contends, that holding of the trial by the Additional Sessions Court was illegal. To lay the foundations of his argument Mr. Mukherjee points out that before making his Statement under section 313 of the Cr. P.C. at the conclusion of the trial the accused gave out that at the time of trial on 29.8.78 he was 15 years of age. Mr. Mukherjee points out that even P.W. 1 in course of his cross-examination deposed that he had seen Kanua to be born and he was aged 15 years. Mr. Mukherjee accordingly argues with confidence that the appellant was a child within the meaning of the aforesaid that at the time of commission of the offence and at the time of trial. Relying on the decision of the Supreme Court in Gopi Nath Ghosh v. State of West Bengal1, he contends, that the plea that the appellant was a minor may be raised for the first time even before an appellate court including the Supreme Court. In short, Mr. MukherjeeTs contention is that the appellants plea of minority cannot be brushed aside on the ground of delay. We are satisfied that Mr. Mukherjees contention has force and substance to justify its acceptance. From an examination of the records we find that neither the Advocates associated with the trial nor the Judge give proper attention to the age of the accused and consequences following there from. We find prima facie that the accused was a child. . Mr. Mukherjee submits that a juvenile Court has been established by the Government for trial of offences committed by juveniles within the district of 24-Parganas, as completed in section 4(1) of the West Bengal Childrens Act 1959. Mr. Mukherjee then draws our attention to section 5(a) of the Act laying down The powers conferred on courts by this Act shall be exercised (a) in any area for which juvenile Court has been established, by such court only". Reading the above clause along with section 5 of the Cr. P.C. 1973 Mr. Mukherjee submits that the jurisdiction of the juvenile court to try a child for an offence is exclusive. In this connection he emphasizes that the offence with which the appellant was charged is under section 302 I.P.C. which is punishable with death or imprisonment for life, excluding the application of 5. 27 of the Code. In brief, Mr. Mukherjee submits that in this particular case only the juvenile court established for the local area had the jurisdiction to try the offender for the offence alleged against him and the Sessions Judges jurisdiction was to that extent ousted. This line of argument is irresistible. The learned Advocate representing the State Government respondent does not raise any objection to this argument. So, we reach the conclusion that there are prima facie reasons to hold that the appellant was a child to be tried by a juvenile court. Against that background we direct the committing Magistrate to make an inquiry as to the age of the accused appellant in accordance with the provisions of section 40 of the West Bengal Childrens Act, 1959. If he is satisfied that the appellant is a child he win send the case to the juvenile court established for the local area, for inquiry and trial. The juvenile will bear in mind the provisions of section 25 as to manner of inquiry section 22 as to the sentence and section 22 as to grant of bail to the accused. Following the Supreme Court decision cited above we direct release of the accused appellant on bail by the learned Additional Sessions Judge, 9th Court, Alipore, for such amount and on such terms we may be; considered legal and proper by him. We direct that the case be remitted to the learned Magistrate who had committed the appellant to the Court of Sessions for proceeding further in accordance with the directions embodied in the body of our judgment supplemented by the provisions of the West Bengal Childrens Act, 1959. In the result, the appeal is allowed. The conviction of the appellant for the offence under section 302 I.P.C. and sentence of imprisonment for life imposed by the learned Additional Sessions Judge are set aside and the case is remitted to the learned committing Magistrate for disposal according to law and directions recorded above. Appeal allowed.;