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1964 DIGILAW 188 (CAL)

STATE OF WEST BENGAL v. Subhas Chandra Sen

1964-08-12

D.N.Das Gupta, R.N.Dutt

body1964
Judgment 1. ON the 6th February, 1964 charge sheet was submitted by the police against seven persons under sections 147/l49/302 Indian Penal Code. All of them were above the age of 18 years. On the same date a separate charge sheet was submitted under those sections against the four respondents-Subhas Chandra Sen, Subodh Kumar Pal, Amar Sankar Bhattacharyya alias Babu and Rajendra Lal Chakrabartti alias Banku in respect of the same transaction. In the charge sheet they were said to be persons who had not attained the age of 18 years. Prior to that there was a finding by the Additional Chief Presidency Magistrate that all of them were children within the meaning of the West Bengal Children Act, 1959. That finding was made on the 21st December, 1963 and was founded upon medical evidence including the evidence of the Radiologist. Having regard to the X-ray findings, general configuration and other medical findings, the doctor gave the opinion that the respondents were below the age of 18 years. On the 6th February, 1964 the learned Additional Chief Presidency Magistrate, Calcutta, directed the children accused to be produced before the Juvenile Court on the 20th February, 1964 along with a copy of the charge sheet. They were accordingly produced before the Juvenile Court on the 20th February, 1964. On the 7th March, 1964 the Juvenile Court examined a doctor and came to a finding that the respondents were above 18 years of age. Accordingly they passed an order that as the accused persons were above 18 years of age the Juvenile Court had no jurisdiction to try the case and returned the case to the Additional Chief Presidency Magistrate. The present appeal has been preferred by the State of West Bengal under section 48 of the aforesaid Act against the order of the Juvenile Court returning the case to the Additional Chief Presidency Magistrate. The sections of the aforesaid Act to which our attention has been drawn by the learned Deputy Legal Remembrancer are sections 6, 28 and 40. 2. The sections of the aforesaid Act to which our attention has been drawn by the learned Deputy Legal Remembrancer are sections 6, 28 and 40. 2. 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 other court or Magistrate having jurisdiction." Section 28 (2) provides, "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." 3. SECTION 40 provides, "whenever any person is brought before a Court to be dealt with under any of the provisions of this Act as a child the Court shall make due inquiry as to the age of that person and also, for the purposes of section 41, as to his religious persuasion 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. " 4. IT would appear on a plain perusal of those sections that the word 'court' in section 6 is qualified by the words not empowered to pass an order under this Act,' but the word 'court' in section 40 is not qualified in any manner. The word 'court' in section 40 accordingly means the Juvenile Court and also any court other than the Juvenile Court. So interpreted, section 40 means that whenever a child is brought before any court to be dealt with under any of the provisions of the aforesaid Act, the Court shall make due inquiry as to the age of that person. There is a mandatory obligation on the court before whom a child is produced for the first time to make a due inquiry as to his age in order to be sure that he is below 18 years of age. There is a mandatory obligation on the court before whom a child is produced for the first time to make a due inquiry as to his age in order to be sure that he is below 18 years of age. In the instant ease the respondents were for the first time produced before the Additional Chief Presidency Magistrate and evidently he held an inquiry as to the age in accordance with the provisions of section 40. The Juvenile Court to which the case was transferred for disposal had no jurisdiction to question or revise the finding arrived at by that Court. According to section 40 the age found by the Additional Chief Presidency Magistrate shall, for the purposes of the Children Act, be deemed to be their true age. The finding of the Additional Chief Presidency Magistrate regarding age was necessary for the purpose of section 6 and section 28. The interpretation that we are putting upon section 40 is the only reasonable and harmonious interpretation as otherwise there would be possibilities of conflict of decisions. Therefore the order of the Juvenile Court determining the age and returning the case to the Additional Chief Presidency Magistrate is set aside. The Juvenile Court shall now proceed in accordance with law against the respondents. The appeal is accordingly allowed. Let the records go down without delay.