Judgment Arun Kumar Dutta, J: 1. These three Appeals are directed by the three accused-Appellants against the Judgment and Order of Conviction and Sentence passed by the Learned Sessions Judge, 7th Bench of the City Sessions Court at Calcutta, in Sessions Trial No. 2 of July, 1',9•88 before him holding them guilty for offences punishable under Ss. 302/34, IPC, read with Ss. 3 and 5 off the Explosive Substances Act for causing murder of Panchu Gopal Chatterjee of Ramesh Dutta Street, Calcutta, and sentencing them to suffer imprisonment for life for the offence punishable under Ss. 302/34, IPC. No separate sentence, however, had been passed by the Learned Trial Judge against any of the Appellants for offences punishable under Ss. 3 and 5 off the Explosive Substances Act. 2. During the hearing of the Appeals a preliminary point had been raised on behalf of the Appellants that the accused-Appellant Monoj Som alias Laloo, being a child on the date of alleged occurrence within the meaning of the West Bengal Children Act, 1959, could not have been charged with and tried for the alleged offences together with other adult accused persons in view of the provisions of s. 28 thereof. The Learned Advocate for the Respondent-State had submitted that since no such ground has been made in the Memo of Appeal the Appellants should not be allowed to raise the point before the Court at this stage. But in the light of the decision of the Supreme Court in Gopinath Ghosh vs. The State of West Bengal, AIR 1984 SC 237 , we would not feel inclined to uphold the aforesaid technical objection raised on behalf of the Respondent in view of the underlying intendment and beneficial provisions of the relevant Act, read with clause (f) of Article 39 of the Constitution of India. It such objection is allowed it would result in thwarting the benefit of the provisions of the Act to the minor, if he was otherwise entitled to it. 3. It such objection is allowed it would result in thwarting the benefit of the provisions of the Act to the minor, if he was otherwise entitled to it. 3. It appears from the impugned Judgment and Order as also from !;he lower court records that the Appellant-accused Monoj Som alias Laloo had given out his age to be 18 years during his examination under s. 313, Cr.P.C. The Learned Trial Judge himself has recorded as follows at Page 4 of his impugned Judgment :- "During the trial while being examined under s. 313 Cr.P.C., one of the accused Monoj Soni @ Laloo gave out his age as 17 years. So court held enquiry regarding the age of the accused and in this connection certain documents were also taken into account, such as, admission register and some other papers and those witnesses were who were examined by the court for the purpose oft enquiry to ascertain the age of Monoj Soni. On the date of alleged occurrence were not allowed by the court to be examined or cross-examined by prosecution or by defence since that enquiry was restricted only for the purpose of satisfying the court regarding the age of the accused Monoj Soni on the date 011 alleged incident and those evidences were taken by the court for that limited purpose of enquiry and as it transpired from the enquiry that Monoj Soni was aged more than 16 years on the date of the alleged incident so there was no need of an order for his separate trial in the court meant for the offenders below 16 years." 4. The alleged incident had allegedly taken place on 15th August, 1987. The Learned Judge had recorded in his judgment that the accused Monoj Soni was aged more than 16 years on the date of the alleged incident, and so there was. no necessity for making an order for his separate trial meant for offenders below 16 years; presumably under a mistaken impression that Juvenile Justice Act, 1986 (hereinafter referred to as Act of 1986) had been holding the field at the relevant point of time, and the said accused was not a "Juvenile" within the meaning of s. 2(a) of the said Act. But the said Act has come into force on and from 2nd day of October, 1987, long after the alleged occurrence had taken place. But the said Act has come into force on and from 2nd day of October, 1987, long after the alleged occurrence had taken place. The West Bengal Children Act, 1959 (hereinafter referred to Act of 1959) had been in force at the relevant point of time when the alleged occurrence had taken place. And, in terms of the definition in s. 2(d) of the Act a "Child" means a person who has not attained the age of 18 years. The Learned Judge clearly, therefore, appears to have gone greviously wrong and miserably astray in holding that since the accused Appellant Monoj Soni @ Laloo was aged more 16 years at the rellevant point of time there was' no necessity for making an order for his separate trial in the Court meant for offenders below 16 years. It would also be pertinent to note in this context that in terms of s. 63 of the Act of 1986, the Act 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 oil the proviso (b) thereof "any right, privilege, obligation or liability acquired, accrued or incurred" under the earlier repealed Act shall not be affected. That being so, the right of the accused Monoj Sani alias Laloo to be tried by Juvenl1e Court under the Act of 1959 could neither be affected by the Act of 1986, if he was below 18 years of age on the date of the alleged occurrence. 5. In the aforesaid circumstances, it was for the Learned Trial Judge to determine whether the aforesaid accused was above or below the age of 18 years at the relevant point of time and not whether he was above or below the age of 16 years, as wrongly determined by him. That apart, it appears from the lower court record that the aforesaid accused Monoj Soni alias Laloo having stated his age to be 18 years during his examination under s. 313 Cr.P.C., a petition was filed on behalf of the State before the Court praying for determination of his age for ensuring whether the Court had jurisdiction to proceed with the trial against him or not. The Learned Judge had, accordingly, directed enquiry in the matter by his Order No. 97 dated 10.7.90. The Learned Judge had, accordingly, directed enquiry in the matter by his Order No. 97 dated 10.7.90. He had directed the Professor, Forensic State Medicine, Medical College, Calcutta, to examine the accused Monoj Soni and to submit report before the Court regarding his (accused's) present age. After receipt of the relevant report, the Learned Judge had examined Dr. Dipankar Guha Rayon 21.8.90, and two other witnesses, Smt. Sati Mukherjee and Dr. Sankar Kabiraj on 30.8.90. But none of the aforesaid three witnesses examined by the Learned Judge had been allowed (by him) to be cross-examined either by the prosecution or by the accused concerned. From the impugned judgment it further oddly appears that the Learned Judge had also taken into consideration certain documents, namely. Admission Register and some other papers." The Learned Trial Judge had come to the finding regarding the age oil the aforesaid accused on the basis of the aforesaid untested evidence, not having subjected the three witnesses examined in the matter to cross-examination, and without allowing any opportunity to the accused concerned to present evidence regarding his age in gross violation of the fundamental principles of natural justice, resulting in failure 0:11 justice to him. 6. In the aforesaid circumstances, the finding arrived at by the Learned Trial Judge that the accused Monoj Soni alias Laloo was aged more 16 years on the basis of the aforesaid untested evidence without giving any opportunity to the accused concerned to lead evidence about his age could hardly be upheld. That part of the finding of the court below must clearly be set aside in view o£ the discussions above. We, accordingly, set aside the finding of the Learned Judge that the accused Monoj Soni alias Laloo was aged more than 16 years on the date of the alleged incident, and that there was "no need" to make order for his separate trial in the court meant for offenders below 16 years. We, accordingly, set aside the finding of the Learned Judge that the accused Monoj Soni alias Laloo was aged more than 16 years on the date of the alleged incident, and that there was "no need" to make order for his separate trial in the court meant for offenders below 16 years. We remit the case to the court below for ascertaining whether, the accused Monoj Soni alias Laloo was a "Child within the meaning of s. 2(d) of the West Bengal Children Act, 1959 on the date of the alleged occurrence on the basis of the evidence already on record, after allowing both the prosecution and the accused concerned opportunities to cross-examine the aforesaid three witnesses examined by the Learned Judge while making enquiry in the matter, and after allowing both the State and the accused concerned opportunities to adduce such evidence as they propose to present regarding his (latter's) age. The Learned Trial Judge shall conclude further enquiry on the point in terms of this Order, as early as possible, preferably within a period of eight weeks from the date of communication of this Order and forward his finding on the point to this Court within two weeks thereafter. 7. Let a copy of this Order be forthwith sent to the Court below, along with the Lower Court records, for strict compliance. The Lower Court records should be forwarded to this Court, along with finding of the Learned Trial Judge in terms of this Order. 8. Let the Appeals be treated as Part-Heard and kept pending, which shall come up for further hearing twelve weeks hence. Satya Narayan Chakrabarty, J. I agree. Case remitted to the court below with direction.