STATE OF WEST BENGAL Vs. SUBHAS CHANDRA SEN

JUDGEMENT

(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.) 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. "

(3.) 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. "