- (1.) THIS Rule was obtained by the petitioner who was committed to the Court of Session by a Magistrate. 1st Class, Scaldah on october 19, 1973 to be tried along with two others on charge under sections 304/34 I. P. C, and under section 27 of the Arms Act. The occurrence, according to the prosecution, look place on the 8th of September, 1971 at about 11. 30 P. M. when the three accused involved in the sessions trial fired a few shots at 38 A, Murari Pukur Road,killing fine person and injuring another were on the roof of the house. The petitioner alleges that he was seventeen years five months when the alleged offence was committed. An affidavit worn by the father of the petitioner, sri Kalipada Bhowmick states that the petition was born on 13. 4. 1954. When the sessions trial was due to commence the petitioner submitted that as he was a child under the West Bengal Children act. 1959, he could not be tried with, the other adult accused persons. The learned Sessions Judge noted that the petitioner did not contend that he was still a child but the contention on behalf of the petitioner was that the magisrtate who committed the petitioner to the court of Sessions had no jurisdiction. The teamed Sessions Judge held that he assumed jurisdiction on the basis, of commitment. As the matter related to jurisdiction he gave leave to the petitioner to move this Court In the circumstances a rule was obtained in this case calling upon the District magistrate, 24-Parganas, to show cause why the petitioner should not be a segregated from the trial of the other two accused persons.
(2.) ACCORDING to section 2 (d) of the West Bengal Children Act, 1959. "child" means a person who has not attained the age of 18 years. Section 28 which provides joint trial of child and adult runs as follows : (1) Notwithstanding anything to the contrary contained in section 239 of the Code of Criminal Procedure,1808,or any other law for the time being in force, no child shall be charged with, or tried for, any offence together with all adult. (2) Where a child and an adult are accused of an offence for which under section 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-section (L), be charged and tried together, the Court taking cognizance of the offence shall direct separate trials of the child and the adult. The crucial point for determination in this Rule is when is the age to be calculated for the purpose of section 28. Is the age at the time of the time commission of the offence to be taken into consideration or is the age when the person concerned is charged or tried to be considered ?
(3.) SOME of the relevant sections of the West Bengal Children Act, 1959, may be noted. Section 3 runs as follows. "notwithstanding anything to the contrary contained in this Act, if during the course of any proceeding under this Act, a child attains the age of eighteen years, the proceeding may be continued and orders may be made under this Act in respect of him as if he was a child. " Section 6 provides : "when a child is brought before a magistrate or Court not empowered to pass an order under this Act, such magistrate or Court shall forward the child to the nearest juvenile Court or ether Court or Magistrate having jurisdiction" . It may be mentioned that according to Section 22 which relates to bail and custody of children pending enquiry the expression used is "when a child is arrested or detained on a charge for any offence, whether billable or not, or appears or is brought before a Court. " section 26 which is concerned with orders that may be passed regarding juvenile delinquents to be sent to a reformatory or borstal school. It may be incidentally noted that a juvenile delinquent under section 2 (h) means a child who has been found to have committed offence. Therefore, it seems that the Court may send to Borstal or reformatory school a person who is not only a child at the time of commission of the offence but who has been found to have committed an offence. Again section 40 which deals with presumption and determination of age runs as follows : 'whenever any person is brought before a Court to be dealt with under any of the provisions of act as a child, the Court shall make due inquiry as to the age of that person and also, for the purpose of section 41, as to his religious persuation and shall, after taking such evidence as may be forthcoming, record a finding whether the person is a child or not and what his age is. The age so found by the Court, shall, for the purposes of this Act, be deemed to be the true age of such person. It would thus appear that the age to be determined by the Court upon enquiry is when a person is brought before a Court to be dealt with and not when he committed the offence.;