Sunil Das and Sudhangsu Das Vs State of West Bengal

Gitesh Ranjan Bhattacharjee, J.@mdashThis Criminal Revision is directed against the order dated 13-11-1991 passed by the Sessions Judge, Purulia in Sessions Trial No. 13 of 1991 (Sessions Case No. 16/1991). By the said order, the learned Sessions Judge turned down the plea of the present petitioners who are facing trial in the said case that they were juvenile on the date of occurrence and as Such they were required to be dealt with by the Juvenile Court under the Juvenile Justice Act 1986 and not by the Court of Session. After the conclusion of the prosecution evidence when the petitioners-accused were being examined u/s 313 Criminal Procedure Code the petitioner no. 1 Sural Das gave his age on the date of examination namely on 21-9-91 as 18 years and the petitioner no. 2 Sudhangsu Das who is the elder brother of the petitioner no. 1 gave his age on that date as 19 years. The date of occurrence was 12-10-88. If the age as given by each of the petitioners while examined u/s 313 Criminal Procedure Code were true, in that case each of the petitioners was below 16 years of age on the date of occurrence and in that event they are required to be dealt with under the Juvenile Justice Act, 1986. On the basis of the age given by the petitioners while examined u/s 313 Criminal Procedure Code a petition was moved before the learned Sessions Judge, on behalf of the petitioners for necessary steps to deal with their case under the Juvenile Justice Act 1986. Thereafter the learned Sessions Judge embarked upon an enquiry into the matter and disposed of the same by his impugned order holding that the petitioners were not minors on the date of occurrence and as such there was no ground of passing order for their separate trial. In assailing that order Mr. Himangshu Dey appearing for the petitioners submitted that the plea of separate trial or for that matter for being dealt with under the Juvenile Justice Act may be taken at any stage, however belated may it be. In support of this submission he also relied on a decision of the Supreme Court reported in Gopinath Ghosh Vs. The State of West Bengal, That was a case where the plea that the accused was a minor and was liable to be dealt with under the West Bengal Children Act (30 of 1959) was taken for the first time in appeal before the Supreme Court. The Supreme Court having regard to the beneficial provision of a very progressive statute like the West Bengal Children Act, entertained that plea even at that belated stage. Indeed, in view of the Supreme Court decision there is no dispute now that such a plea can be taken even at a belated stage. As a matter of fact, in this case the plea was also entertained by the learned Sessions Judge after the conclusion of the prosecution evidence and the examination of the accused u/s 313 Criminal Procedure Code. Mr. Himangshu Dey also relied on a decision reported in 1987 C. Cr. LR. (Cal) 174 (Pradip Ghosh vs. The State) where also the plea of minority was taken for the first time in the appeal before the High Court. In both those cases the Supreme Court and the High Court respectively framed issue regarding the age of the accused appellant and directed the Court of Session to enquire into and certify the age of the appellant. In both the cases the Court of Session in turn, after enquiry, certified that the appellant was minor on the date of occurrence.

2. Mr. Himangshu Dey also cited a decision of the Bombay High Court reported in 1990 Cri.L.J. 351 (Sarita vs. State) in support of his contention that a juvenile delinquent is entitled to be dealt with only by a court mentioned in the Juvenile Justice Act, 1986 and not by the ordinary court of Magistrate or the Court of Session. Indeed, there is no dispute with the proposition that a juvenile delinquent cannot be dealt with by any ordinary court except such Court as has been empowered under the Juvenile Justice Act. Mr. Dey argued that since the petitioners had taken the plea of minority in the court of the learned Sessions Judge it was incumbent upon the learned Sessions Judge to refer the case of the petitioners to the appropriate Juvenile Court for being dealt with u/s 20 of the said Act which provides that where a juvenile having been charged with an offence appears or is produced before a Juvenile Court, the Juvenile Court shall hold the enquiry in accordance with the provisions of the Section 39 and may, subject to the provisions of the Act, make such order in relation to the juvenile as it deems fit. His argument was that the learned Sessions Judge should not have embarked upon an enquiry about the age of the petitioners and he should have referred the matter to the appropriate Juvenile Court. This, I must say is not the correct proposition. It is indeed true that a Juvenile Court is empowered u/s 32 of the Juvenile Justice Act, 1986 to make due enquiry about the age of the person brought before it under any of the provisions of the Act, but then it does not mean that whenever any question about the age of an accused is raised in any other court during the course of trial or enquiry such court must invariably refer the question to the Juvenile Court for determination of age.

3. In this connection, we may refer to Section 8(1) of the Juvenile Justice Act which provides that when any Magistrate not empowered to exercise the powers of a Board or a Juvenile Court under the Act, is of opinion that a person brought before him under any of the provisions of the Act is a juvenile, he shall record such opinion and forward the juvenile and the record of the proceeding to the competent authority having jurisdiction over the proceeding. (Emphasis supplied). Therefore, the Magistrate, who is otherwise not competent to deal with a juvenile, has, at the first instance to form an opinion that the person brought before him is a juvenile and then and then only he can forward the juvenile and the record of the proceeding to a competent authority having jurisdiction under the Juvenile Justice Act. There is no doubt that he may form such opinion even on his own assessment of age on the basis of the physical appearance of the concerned person, where such appearance is unmistakably prominent on the point, but whatever may be the basis, he has to form an opinion first.

4. It is also to be seen that even where the Magistrate records an opinion that the accused person is a juvenile and refers the matter to a juvenile Court, the juvenile Court has still to make due enquiry u/s 32(1) of the Juvenile Justice Act as to the age of the person concerned and has to record a finding whether the person is a juvenile or not, stating his age as nearly as may be. On the other hand inspite of the claim of the person concerned that he is a juvenile if the Magistrate acting u/s 8(1) on proper enquiry, held for the purpose of forming his opinion in the matter, forms an opinion that the person concerned is not a juvenile, in that case he need not refer the matter to any juvenile Court or any authority mentioned in the Juvenile Justice Act. Of course, his opinion must be based on proper material and cogent reason which is subject to revision by superior Court, a fortiori where such opinion overrules the claim of juvenility, but it will be an impractical and improper proposition to suggest that whenever any plea is taken by an accused before any Magistrate or Court, not competent to deal with a juvenile under the Juvenile Justice Act that he is a juvenile, such Magistrate or Court will have to forward the matter to a Juvenile Court without making any sort of enquiry whatsoever, about the juvenility of the accused.

5. Section 8(1) of the Juvenile Justice Act reflects the proper spirit and principle which also applies to any case before any Magistrate or Court not empowered to deal with a juvenile delinquent under the Juvenile Justice Act where any question or doubt is raised about the age of the accused. Going by that principle, if during the trial of a Case in a Criminal Court any question of juvenility upon the court to make a preliminary enquiry in the matter and form an opinion as to whether the person concerned is a juvenile and if the opinion is affirmative in that event the case has to be referred to the Juvenile Court for being dealt with under the Juvenile Justice Act, in which case the juvenile Court shall yet make due enquiry u/s 32(1) of the Juvenile Justice Act about age of the person and record a finding whether the person concerned is a juvenile or not. However if the opinion of the Criminal Court is otherwise, namely that the person concerned was not a juvenile on the date of occurrence, then the matter need not be referred to the Juvenile Court, but such opinion of court will be subject to revision by a superior Court.

6. It may be noted here that in both the cases reported in Gopinath Ghosh Vs. The State of West Bengal, when the plea of minority of the accused-appellant was taken in appeal both the Supreme Court and the High Court framed issue about the minority of the concerned accused and got an enquiry made into the matter by the Court of Session and it is only on the basis of report of such enquiry when it appeared that the appellant was a juvenile on the date of occurrence, the matter was then referred to the Juvenile Court for being dealt with according to law. This also clearly indicates that before referring the matter to the Juvenile Court the concerned Court has to form an opinion that the concerned accused is a juvenile. In the present case, therefore the learned Sessions Judge by embarking on an enquiry about the age of the petitioners instead of referring the matter to the Juvenile Court at that stage did nothing wrong and rather he adopted the correct procedure. The contention that the learned Sessions Judge should have referred the matter to the Juvenile Court instead of himself making an enquiry about the juvenility of the accused therefore stands overruled. Next comes the question as to whether in arriving at the impugned finding about the age of the petitioners on the basis of the enquiry made by him he has misdirected himself in any manner or has acted perversely or illegally. In his impugned order the learned Session Judge records thus: "I gave opportunities to the parties to furnish materials in support of the age of accused Sunil and his elder brother Sudhamoy. No document has been filed on behalf of the defence". It is thus seen that inspite of the opportunities given by the learned Sessions Judge the petitioners did not produce any document about age. No material or evidence was furnished by them. On the other hand, the learned Sessions Judge considered the school leaving certificate of the petitioner no. 1 Sunil Das as produced by the prosecution in which the date of birth of that petitioner was recorded as 25-6-64. It was further stated in that certificate that he passed Madhyamik Examination in the year 1982. The headmaster of the concerned school also personally produced the Admission Register of the School which showed that the date of birth of the petitioner Sunil Das was recorded therein as 25-6-64. On the basis of these documents, which indeed are very reliable, the learned Sessions Judge found that the petitioner no. 1 Sunil Das was aged about 24 years on the date of occurrence. Even according to the case of the petitioners the petitioner no. 2 Sudhamoy was the elder brother of the petitioner no. 1, Sunil Das and the difference of age between them was about one year. That being so the learned Session Judge found that the petitioner no. 2 Sudhamoy must have been more than 25 years on the date of occurrence. The learned Sessions Judge, I find, has arrived at his finding about the age of the two petitioners on the basis of cogent materials placed before him and there is no perversity or illegality in his finding. That being so, no interference with the impugned order of the learned Sessions Judge is warranted. It is to be noted that ossification test may not be necessary where, as in this case, convincing evidence of age is forthcoming. This is more so where the age on the date of occurrence is fixed by such evidence at a reassuring distance from the line of demarcation of juvenility. This revisional application is therefore dismissed and the interim order of stay is vacated. The learned Sessions Judge is directed to proceed with the trial of the case very expeditiously. The office is directed to communicate this order to the learned Session Judge forthwith.

Revisional application rejected.