SANKAR PRASAD MITRA, C.J. - (1.) A Division Bench consisting of Barooah and Majumdar, JJ. has referred this Rule to a Full Bench in accordance with the provisions of Chap. VII of the Appellate Side Rules. The question for determination by the Full Bench is as follows: For the purpose of determining whether an accused Is a child or not within the meaning of Section 28 of the West Bengal Children Act (Act XXX of 1959), is the age to be determined with reference to the -date of commission of the offence or when the accused is charged with the offence and is brought to trial or some other date.
(2.) SECTION 28 of the West Bengal Children Act, 1959 runs thus: 28. (1) Notwithstanding anything to the contrary contained in Section 239 of the Code of Criminal Procedure, 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 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 (1), be charged and tried together, the court taking cognizance of the offence shall direct separate trials of the child and the adult. Under Section 8(1) of the General Clauses Act, 1897 the references to the Code of Criminal Procedure, 1898, s. 239 in Section 28 of the West Bengal Children Act, 1959 have to be construed as references to corresponding provisions in the Code of Criminal Procedure, 1973.
(3.) ON the question referred to the Full Bench there are two conflicting decisions of two Division Benches of this Court. The first decision was of Barooah and H. N. Sen, JJ. in Madan Prodhan v. State of West Bengal reported in 1976 (1) Cal LJ 224. The judgment was delivered on Jan. 7, 1976. In this case it was admitted that the appellant had not attained the age of 18 years on the date of commission of the offence. In other words, on the date of the offence the appellant was a child within the meaning of Section 2(d) of the West Bengal Children Act, 1959. Section 28(1) of the Act, as we have seen, prohibits a joint trial of a child and an adult. In spite thereof, the appellant was tried along with one Kartick Debnath on a charge under Section 302 I. P. C. on the allegation that the appellant with the other accused had, on March 24, 1973, committed murder intentionally or knowingly by causing death of one Ramlal in furtherance of a common Intention of them both. The Sessions Judge found the accused persons guilty of the charge and sentenced each of them to suffer imprisonment for life.;