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2009 DIGILAW 135 (CAL)

Rasid All Mondal v. STATE OF WEST BENGAL

2009-02-20

Japan Mukherjee, KALYAN JYOTI SENGUPTA

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JUDGMENT 1. THIS is not a very usual case as it was and still is, in this matter, a plea being taken that the accused/petitioners are minor. At one stage the learned Additional Chief Judicial Magistrate, Baruipur held that the accused persons were major and against this decision a revisional application was filed in this Court. 2. BY an order dated 2.5.2008 a learned Single Judge of this Court had been pleased to set aside and quash the said decision holding the petitioners major. At the same time His Lordship was pleased to give direction for holding Ossification Test. In spite of the said order and direction, till date no report is forthcoming. It appears from the report that the Investigating Officers have been transferred successively and before their transfer, they had not taken any prompt step for obtaining the Ossification Test Report. Therefore, the issue of major still remains unresolved and it depends upon the availability of the Ossification Test Report. 3. BOTH the petitioners have been in custody for two and half years. Investigation is over. Charge-sheet has been submitted and commitment has been done, but no trial could take place for the consideration as to framing of charges because of the aforesaid plea being taken. 4. CONSIDERING the balance of convenience and inconvenience on the aforesaid factual matrix, we feel in the event the petitioners are ultimately found to be minor by the Ossification Test, obviously their detention would be absolutely unconstitutional as they would be tried by the appropriate forum and not by the forum where the case has been instituted. This procedural safeguard, as guaranteed under Article 14 read with Article 21 of the Constitution of India, would be violated in that case. Therefore, the petitioners' prayer for bail if allowed with certain conditions then perhaps their civil liberty will not be affected absolutely so much so their right guaranteed under Articles 14 and 21 at least may be protected at this juncture. The issue whether the petitioners are minor or major is still pending. We, accordingly, direct that the petitioners may find bail to the satisfaction of the learned Additional Chief Judicial Magistrate, Baruipur with two sureties of equivalent amount each, one of whom must be local. The petitioners shall meet the Officer-in-charge of Baruipur Police station twice in a week. The issue whether the petitioners are minor or major is still pending. We, accordingly, direct that the petitioners may find bail to the satisfaction of the learned Additional Chief Judicial Magistrate, Baruipur with two sureties of equivalent amount each, one of whom must be local. The petitioners shall meet the Officer-in-charge of Baruipur Police station twice in a week. They must not enter with the jurisdiction of village Chittrasali where the victim is residing and they shall reside at a separate place but within the jurisdiction of Baruipur Police Station and address of such place of residence shall be furnished before the Officer-in-Charge. 5. THE moment the Ossification Test Report is produced and the learned Trial Judge decides the issue of minor and if it is held that the petitioners are major by the learned Trial Judge, then the petitioners will be taken to custody immediately subject to the provisions of bail, as available under the law.