MOHAMMAD SHAH ALAM Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The application under S. 401 read with S. 482 of the Crl. Procedure Code, 1973 is directed against the impugned order dated 26th November, 1984, passed by the learned Additional Session Judge, First Court Suri, District Birbhum, by which the learned Judge rejected the prayer on behalf of the three present petitioners for an enquiry under the provisions of S.25 of the West Bengal Children Act, 1959 (Act XXX), hereinafter referred to as the "said Act", for determination as to whether they were children within the meaning of the said Act. The learned Judge held that since charges have been framed already and the prayer was made at a very late stage, when the case was already fixed for evidence, there was no scope for holding any enquiry at that stage and S.25 of the said Act could not be invoked any longer.

(2.) The learned Advocate appearing on behalf of the petitioner has submitted that the provisions of the said Act are mandatory and S.28 is a bar to the trial of any child being charged with or tried for any offence with an adult. In this case the three petitioners are being tried along with 30 other persons on charges under Ss.148/302/149/307 of the Indian Penal Code. In support of his submissions, the learned Advocate has relied upon a Full Bench decision reported in AIR 1978 Calcutta 529 (Dilip Saha v. State of West Bengal) and in particular to paragraph 20 thereof, wherein it has been observed as follows :

(3.) The learned Advocate appearing on behalf of the State has submitted that though it is unfortunate that the matter has been brought to the notice of the court after framing of the charges, but still in view of the provisions of the said Act and the said judgment of the Full Bench of this Court, there is no alternative but to order for an enquiry as envisaged in S.25 of the said Act.