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1995 DIGILAW 133 (CAL)

BENOY KUMAR URAON v. STATE

1995-04-25

ARUN KUMAR DUTTA, SATYA NARAYAN CHAKRABARTY

body1995
A. K. DUTTA, J. ( 1 ) THIS Appeal is directed by the accused-Appellant Benoy (alias Bejoy) Kumar Uraon (hereinafter referred to as accused) against the judgment and order of conviction and sentence dated 27th May, 1987 passed by the learned Additional Sessions Judge, Siliguri, in Sessions Case No. 46 of 1985 before him. ( 2 ) THE accused stood charged before the Trial Court for an offence punishable under Section 302, I. P. C. , on the case made out by the prosecution, as stated in the impugned judgment. The learned Trial Judge, on trial, had found the accused guilty to the aforesaid charge and had convicted him thereunder and sentenced him therefore to suffer imprisonment for life for the reasons discussed at length in the impugned judgment. ( 3 ) BEING aggrieved by the judgment and order of conviction and sentence so passed by the learned Trial Judge, the accused has preferred this Jail Appeal from the jail. ( 4 ) THE point for consideration before us is how far the learned Trial Judge was justified in finding the accused guilty to the aforesaid charge and convicting him thereunder and sentencing him therefore, the way he did. ( 5 ) WHEN the Appeal was initially taken up for hearing before this Court on 11th April, 1991, it appeared to the learned Judges hearing the Appeal that the accused facing trial for the offence punishable under section 302, I. P. C. , had given out his age to be 21 years when he was examined by the Trial Court under Section 313, Cr. P. C. , on 26th May, 1987. It appeared to the learned Judges that the accused-Appellant was much below 18 years, and was a little more than 15 years old when the alleged offence had allegedly been committed by him on 27th October, 1981. He should, therefore, have been tried under the West Bengal Children Act, 1959. The learned Judges by the Order dated 11th April, 1991, had, accordingly, sent back the case record to the court below for determining the age of the accused-Appellant on the date of the hearing, i. e. , on 11th April, 1991, and specially on the date of the offence, i. e. on 27th October, 1981, keeping the instant Appeal pending. The learned Judges by the Order dated 11th April, 1991, had, accordingly, sent back the case record to the court below for determining the age of the accused-Appellant on the date of the hearing, i. e. , on 11th April, 1991, and specially on the date of the offence, i. e. on 27th October, 1981, keeping the instant Appeal pending. ( 6 ) IN terms of the aforesaid Order of this Court dated 11th April, 1991, the court below had held enquiry and had submitted his report in the matter, as directed; which has been put up before us. The learned Additional Sessions Judge, Siliguri, upon due enquiry, had found and held that the convict-Appellant Benoy alias Bejoy Kumar Uraon was much below 18 years, and a little above 13 years on the date of the alleged occurrence on the 27th October, 1981. He (accused) was clearly, therefore, a "child" within the meaning of section 2 (d) of the West Bengal Children Act, 1959 (hereinafter referred to as Act XXX of 1959), which was in force when the alleged incident had taken place. It would be pertinent to note in this context that the Juvenile Justice Act, 1986 (hereinafter referred to as Act of 1986) had, in the meanwhile, come into force on and from 2nd day of October, 1987. And, in terms of section 63 of the said Act of 1986, the Act XXX of 1959 stood repealed on the date when the former Act had come into force (on and from 2nd day of October, 1987 ). But in terms of proviso (b) thereof "any right, privilege, obligation or liability acquired, accured of incurred" under the earlier repealed Act shall not be affected. That being so, the right of the accused-Appellant to be dealt with and tried by the competent court under the Act XXX of 1959 could not clearly be affected by the Act of 1986. This being the position of law, the accused-Appellant Benoy alias Bejoy Kumar Uraon was entitled to be dealt with and tried by the competent court according to the provisions of the Act XXX of 1959. His trial and conviction by the learned Additional Sessions Judge, Siliguri, under the provisions of the Criminal Procedure Code must clearly, therefore, be held to be illegal. His trial and conviction by the learned Additional Sessions Judge, Siliguri, under the provisions of the Criminal Procedure Code must clearly, therefore, be held to be illegal. The impugned judgment and order of conviction and sentence passed by the court below against the accused-Appellant could not thus be upheld and sustained. The matter needs to be sent back to the court below for referring it to the competent court and for forwarding the accused to it (competent court) for being dealt with and tried according to the provisions of Act XXX of 1959. So also conceded by the learned Public Prosecutor during the hearing before us. In view of the discussions above, the Appeal should clearly succeed, and be accordingly allowed. The impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Siliguri, against the accused-Appellant be hereby set aside. The court below is hereby directed to forthwith refer the matter to the competent court under the Act XXX of 1959 and to forward the accused-Appellant to it for being dealt with and tried according to the provisions of the said Act. ( 7 ) SINCE the relevant case is a pretty old one, and the accused-Appellant has been suffering the sentence imposed by the Trial Court against him in the relevant Sessions Case No. 46 of 1985, the competent court under the aforesaid Act shall proceed to deal with and dispose of the case with utmost expedition, preferably within a period of four months from the date of the receipt of the record in terms of this Order. The competent court under the aforesaid Act shall also consider the question of releasing the accused-Appellant on bail in terms of Section 22 of the aforesaid Act in due exercise of its judicial discretion. ( 8 ) LET a copy of this Order, along with the lower courts records, be sent down to the court below forthwith for its information and strict compliance. The court below shall, while referring the matter to the competent court under the Act XXX of 1959, shall also forward a copy of this Order to the latter for strict compliance of this Order by it. S. N. Chakrabarty, J. I agree appeal allowed.