http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: GOPI NATH GHOSH

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT11/11/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. SEN, AMARENDRA NATH (J)

CITATION:  1984 AIR  237            1984 SCR  (1) 803  1983 SCALE  (2)756  CITATOR INFO :  RF         1987 SC1501  (2,9)

ACT:      Justice to Children-Constitution of India, 1950 Article 39  (f)  read  with  Article  136-Court  will  not  allow  a technical contention of non-maintainability of appeal on the ground a  New Plea  is taken  for the  first time,  when the Trial is  vitiated for non-observance of the Provisions of a benevolent statute-West  Bengal children Act, 1959, Sections 2 (d),  2 (b),  4 to  6, 22,  23, 24  (2) and  26, scope of- Practice Directions-Guidance  to Courts  below  for  dealing with case against juvenile Delinquents.

HEADNOTE:      The appellant, Gopinath Ghosh along with Bharat Ghosh @ Sadhu, and  Jagannath Ghosh,  was convicted and sentenced to life imprisonment  under Section  302 read  with Section  34 I.P.C. for having committed the murder of Rabi Ghosh, son of Kartik Ghosh  on August  19, 1974. The High Court in appeal, accepted  the  plea  of  the  two  other  accused  only  and acquitted them, while confirming the conviction and sentence of the  appellant. The  appellant for  the first time in the Supreme Court  raised the  New Plea that as he was a "child" within the meaning of the expression in West Bengal Children Act, 1959,  the entire trial was vitiated. The court, by its order dated  March 11,1983 directed the Session Judge Nadiar to give a finding on the age of the appellant on the date of the occurrence.  The Sessions  Judge, in  his report,  after detailed  examination  of  the  evidence  of  Chief  Medical officer  of   Health,  Nadia,   (PWI),   Radiologist   (PW2) orthopaedic Surgeon  (PW3),  another  doctor  Mr.  R.B.  ROY (PW4), the  mother of the appellant (PW5) and the Headmaster of the  School who  brought records  of the  School, gave  a finding that  the appellant was aged between 16 and 17 years on the  date of  occurrence i.e.  on August  19, 1974, which finding is not challenged by the State.      Allowing the appeal by Special leave, the Court, ^      HELD: 1.1  A combined reading of Sections 2(d), 2(h), 4 to 6, 22, 23, 24 (2) and 26 of the West Bengal Children Act, 1959 makes  it clear  that where  a juvenile  delinquent  is arrested, he/she has to be produced before a juvenile court,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

and if no juvenile court is established for the area amongst others, the  court of Session will have powers of a juvenile court; (b)  such a  juvenile delinquent ordinarily has to be released on  bail irrespective  of the nature of the offence alleged to have been committed unless it is shown that there appears reasonable grounds for believing that the release is likely to  bring him  under the influence of any criminal or expose him  to moral  danger or  defeat the ends of justice; (c) Section 25 forbids any criminal or a juvenile delinquent and only  an inquiry  can be  held in  accordance  with  the provisions of the code of Criminal 804 Procedure for  the trial  of a summons case; and (d) the bar of Section  24 which had been given an over riding effect as it opens  with the  non-obstante clause takes away the power of the court to impose a sentence of imprisonment unless the case falls under the proviso. [808 A-C      1.2 In  the instant  case,  the  entire  trial  of  the appellant is  without  jurisdiction  and  is  vitiated.  The report of  the Sessions  Judge unquestionably established by unassailable evidence  that the  appellant having been 16 to 17 years  of age  on the  date of  occurrence was a juvenile delinquent and  therefore  the  Magistrate  could  not  have committed his  case to the court of Session. Only an inquiry could have  been held  against him as provided in Section 25 of the Act unless the case of the appellant falls within the proviso to Section 24 (2). [808 H, 809 A-B]      1.3 ordinarily, the Supreme Court would be reluctant to entertain a  based on  factual averments  for the first time before it.  However,  the  court  is  equally  reluctant  to ignore, overlook  or nullify  the beneficial provisions of a very socially  progressive statute  by taking  shield behind the technicality  of the  contention being  raised  for  the first time  in court.  In view  of the underlying intendment and beneficial provisions of the Act read with clause (f) of Article 39 of the Constitution which provides that the State shall direct  its policy  towards securing that children are given opportunities  and facilities  to develop in a healthy manner and  in conditions  of freedom  and dignity  and that child hood  and youth are protected against exploitation and against moral  and material  abandonment, it  would  not  be proper to  allow a  technical contention  that the  plea  is being raised  for the  first time  in the  court and thereby thwart the  benefit of  the provisions being extended to the appellant, if  he was  otherwise entitled to it. [809 F; 808 F-H] Practice Directions:      Whenever a  case is  brought before  the Magistrate and the accused  appears to  be aged  21 years  or below, before proceeding with  the trial  or under  taking an  inquiry, an inquiry must  be made  about the  age of  the accused on the date of  occurrence. This sought to be made so where special Acts dealing  with   juvenile delinquents  are in  force. If necessary, the  Magistrate may  refer  the  accused  to  the medical-Board or  the Civil Surgeon, as the case may be, for obtaining credit  worthy evidence  about age. The magistrate may as  well call  upon accused  also to lead evidence about his age.  Thereafter, the  learned Magistrate may proceed in accordance with  law. This  procedure, if properly followed, would avoid,  a journey  upto the apex court, and the return journey to the gross-root court. [809 H; 810 A-B]      (The  court  suggested,  that  if  necessary  an  found expedient, the  High Court,  on the  administrative side may issue necessary  instructions to  cope with such situation). [810 B]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 623 of 1983. 805      Appeal by  Special leave  from the  Judgment and  order dated the  17th January,  1982 of the Calcutta High Court in Crl. Appeal No. 160 of 1977.      P. K. Chakraborty for the appellant.      G. S. Chatterjee for the respondent.      The Judgment of the Court was delivered by      DESAI, J. Special leave granted.      Appellant Gopinath  Ghosh was  convicted by the learned Additional Sessions  Judge, Nadia  along with Bharat Ghosh @ Sadhu and  Jagannath Ghosh  under Sec. 302 read with Sec. 34 of the Indian Penal Code for having committed murder of Rabi Ghosh, son  of Kartick  Ghosh on  August 19, 1974, Appellant Gopinath Ghosh  is alleged  to have  caused an injury with a fala which  landed on  the left side chest below the neck of deceased Rabi.  Information of  the offence  was  lodged  by Kartick Ghosh, father of deceased Rabi at Nakashipara Police Station at  about 3.40  P.M. On  the date of the occurrence. After completing the investigation, appellant and two others were charge-sheeted  for an offence under Sec. 302 read with Sec. 34  of the  Indian Penal  Code. The  learned Magistrate committed the  case to  the Court of Sessions. The case came up for  trial before  the learned Additional Sessions Judge, Nadia who  on appraisal  of  evidence  held  that  appellant Gopinath Ghosh has caused the fatal injury in furtherance of the  common   intention  of   all  the   three  accused  and accordingly convicted them for an offence under Sec.302 read with Sec.  34 of  the Indian Penal Code and sentence each of them to suffer imprisonment for life.      Appellant and  the two  co-accused  preferred  Criminal Appeal No.  160 of  1977  in  the  Calcutta  High  Court.  A Division  Bench   of  the   High  Court   held  that  it  is satisfactorily established that the present appellant caused the injury  with a  fala to deceased Rabi which proved fatal and therefore,  the charge  under Sec, 302 I.P.C. is brought home to  him. The  High Court  further held  that it  is not shown that  the two  co-accused Bharat  Ghosh  @  Sadhu  and Jagannath Ghosh shared the common intention with the present appellant and accordingly allowed their appeal and set aside their conviction  and sentence and acquitted them of all the charges. 806      Appellant Gopinath  Ghosh  has  filed  this  appeal  by special leave.      Learned counsel  who appeared  for the  appellant urged that on  the date  of the  offence i.e.  on August 19, 1974, appellant was  aged below  18  years  and  was  therefore  a ’child’ within  the meaning  of the  expression in  the West Bengal Children  Act, 1959  [’Act’ for short) and therefore, the Court  had no  jurisdiction to  sentence him  to  suffer imprisonment  after   holding  a  trial,  In  view  of  this contention, the  Court by  its order  dated March  11,  1983 framed the following issue for determination:           "What was  the age  of the  accused Gopinath Ghosh      (appellant) on the date of the offence for which he was      tried and convicted ?"      and remitted the issue to learned Sessions Judge, Nadia to certify  the finding  after giving an opportunity to both sides to  lead oral  and documentary  evidence. Liberty  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

reserved with  the learned  Sessions Judge  to send  accused Gopinath Ghosh  to Chief Medical officer, Nadia to ascertain his age.      on receipt of the order made by this Court, the learned Additional  Sessions  Judge,  First  Court,  Nadia  directed Superintendent  of   Krishnagar  Jail   to  produce  accused Gopinath Ghose  in the  office of the Chief Medical Officer, Nadia on  June 4,1983 for medical examination with a view to ascertaining his  age and  submit the  report to  the court. Thereafter, the  prosecution examined P.W. 1 Dr. A. K. Basu, Chief Medical  officer of  Health, Nadia,  P.W. 2  Dr. J. C. Debnath,  Radiologist,  P.W.  3  Dr.  C.  R.  Bhattacharyya, orthopaedic Surgeon  and P.W.  4 Dr.  R. B. Roy. Thereafter, Smt. Bhaktabala  Dasi, mother  of the appellant was examined as a  witness for the defence. The case was adjourned as the appellant wanted  to examine Mangalmoy Sarkar, Headmaster of Sudhakarpur High  School to prove entries from the Admission Register. That  request was  granted and  the Headmaster was examined.  The   learned  Additional  Sessions  Judge  after hearing both  the sides certified his finding that appellant Gopinath Ghosh  was aged between 16 and 17 years on the date of the  offence i.e.  On August 19,1974. This finding is not questioned before us.      Sec. 2(d)  of the  Act defines ’child’ to mean a person who has  not attained  the age  of eighteen years. Sec. 2(h) defines ’Juvenile 807 delinquent’ to  mean a  child who  has been  found  to  have committed an  offence. Fasciculus of sections in Chapter III bears the  heading ’Juvenile  delinquents’. Sec. 22 provides for granting  bail to a child pending inquiry. Sec. 23 casts an obligation on the officer in-charge of the police station to which  a child  is brought  after arrest  to  forth  with inform the  parent or       guardian of the child, if he can be found,  of such  arrest and shall cause to be summoned to the Court before which the child will appear. Sec. 24 starts with a non obstante clause which takes away the jurisdiction of the  Court to  impose a  sentence of  death on a juvenile delinquent as  well as  the  power  to  impose  sentence  of imprisonment or  commitment to  prison in default of payment of fine  or in  default of furnishing security on a juvenile delinquent. There  is a  proviso to  sub-cl.(2) of  Sec.  24 which would  enable  the  Court  to  impose  a  sentence  of imprisonment on  a juvenile  delinquent, if  the  conditions therein prescribed  are satisfied  with an obligation on the Court to  report the case to the State Government and direct the juvenile delinquent to be detained in such custody as it may think  fit.  Sec.  25  provides  for  inquiry  by  Court regarding juvenile delinquents. It reads as under:           "Where a child having been charged with an offence      appears or  is produced before a Court, the Court shall      hold the  inquiry in  accordance with the provisions in      the Code  of Criminal Procedure, 1898, for the trial of      a summons case." Sec. 26  confers power  on the  Court enabling  it  to  pass orders regarding juvenile delinquents as therein mentioned.      Sec.  4  confers  power  on  the  State  Government  to establish Juvenile  Courts by a notification to be issued in that behalf.  Sec, 5  provides that  the powers conferred on Courts by  the Act shall be exercised amongst others where a Juvenile Court  is not established by a Court of Session. It is not clear whether juvenile court has been established for the area  comprised in  District Nadia. Sec. 6 provides that when a  child is  brought before  a Magistrate  or Court not empowered to pass an order under the Act, such Magistrate or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

Court shall  forward the child to the nearest juvenile court or other Court or Magistrate having jurisdiction. 808      It clearly  transpires from  a combined  reading of the sections  hereinbefore   extracted  that  where  a  juvenile delinquent is  arrested, he/she  has to be produced before a juvenile court  and if  no juvenile court is established for the area  amongst others,  the Court  of Session  will  have produces of  a juvenile  court. Such  a juvenile  delinquent ordinarily has  to be  released on  bail irrespective of the nature of  the offence alleged to have been committed unless it is  shown  that  there  appears  reasonable  grounds  for believing that  the release is likely to bring him under the influence of  any criminal  or expose him to moral danger or defeat the  ends of  justice. Sec. 25 forbids any trial of a juvenile delinquent  and only  an inquiry  can  be  held  in accordance with  the provisions  of  the  Code  of  Criminal Procedure for  the trial  of a  summons case  and the bar of Sec. 24  which has  been given  an overriding  effect as  it opens with  the non  obstante clause likes away the power of the Court  to impose  a sentence  of imprisonment unless the case falls under the proviso.      Unfortunately, in  this case,  appellant Gopinath Ghosh never questioned  the jurisdiction  of  the  Sessions  Court which  tried  him  for  the  offence  of  murder.  Even  the appellant had  given his  age as 20 years when questioned by the learned Additional Sessions Judge. Neither the appellant nor  his   learned  counsel  appearing  before  the  learned Additional Sessions  Judge as  well as at the hearing of his appeal in the High Court ever questioned the jurisdiction of the trial  court to hold the trial of the appellant, nor was it ever  contended that  he was a juvenile delinquent within the meaning  of the  Act and  therefore, the  Court  had  no jurisdiction to  try him,  as  well  as  the  Court  had  no jurisdiction to  sentence him  to  suffer  imprisonment  for life. It  was for  the first  time that  this contention was raised before this Court. However, in view of the underlying intendment and  beneficial provisions  of the  Act read with cl. (f)  of Art.  39 of the Constitution which provides that the State  shall direct  its policy  towards  securing  that children are  given opportunities  and facilities to develop in a healthy manner and in conditions of freedom and dignity and  that   childhood  and   youth  are   protected  against exploitation and  against moral and material abandonment, we consider it  proper not to allow a technical contention that this contention  is being raised in this Court for the first time to  thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it.      The report  of the learned Additional Sessions Judge is self-evident.   It    is   unquestionably   established   on unassailable evidence 809 that on  August 19, 1974, the date of the offence, appellant was aged  between 16  and 17  years.  He  was  therefore,  a juvenile delinquent, Obviously, the learned Magistrate could not have committed his case to the Court of Session. Only an inquiry could have been held against him as provided in Sec. 25 of  the Act  and unless  the case  of the appellant falls within the proviso to Sec. 24 (2), he could not be sentenced to suffer  imprisonment. Therefore,  the entire trial of the appellant  is   without  jurisdiction   and   is   vitiated. Therefore,  the  conviction  of  the  appellant  for  having committed an  offence under  Sec. 302  IPC and  sentence for imprisonment for  life imposed  by  the  learned  Additional Sessions  Judge   and  confirmed   by  the  High  Court  are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

unsustainable and they must be set aside.      The next  question is  what should be the sequel to our decision ?  The appellant has been in prison for some years. But neither his antecedents nor the background of his family are before  us. It  is difficult  for us  to gauge  how  the juvenile court  would have  dealt with  him.  Therefore,  we direct that  the appellant  be released on bail forthwith by the learned  Additional Sessions  Judge, Nadia.  The case is remitted to the learned Magistrate for proceeding further in accordance with  law keeping  in view  the provisions of the Act.      Before we  part with this judgment, we must take notice of a  developing situation  in recent  months in  this Court that the  contention about age of a convict and claiming the benefit of  the relevant  provisions of the Act dealing with juvenile delinquents  prevalent in  various States is raised for the  first time in this Court and this Court is required to start  the inquiry afresh. Ordinarily this Court would be reluctant  to   entertain  a  contention  based  on  factual averments raised  for the first time before it. However, the Court is  equally reluctant  to ignore,  overlook or nullify the beneficial  provisions of  a very  socially  progressive statute by  taking shield  behind the  technicality  of  the contention being  raised for the first time in this Court. A way has  therefore, to  be found  from  this  situation  not conducive to  speedy disposal of cases and yet giving effect to the  letter and  the spirit  of such  socially beneficial legislation. We  are of  the opinion that whenever a case is brought before  the Magistrate and the accused appears to be aged 21  years or below, before proceeding with the trial or undertaking an  inquiry, an  inquiry must  be made about the age of the accused on the date of the occurrence. This ought to be  more so  where special  acts  dealing  with  juvenile delinquent are  in force.  If necessary,  the Magistrate may refer the 810 accused to  the Medical  Board or  the Civil Surgeon, as the case may be, for obtaining credit worthy evidence about age. The Magistrate  may as  well call  upon accused also to lead evidence about  his age.  Thereafter, the learned Magistrate may proceed  in accordance  with  law.  This  procedure,  if properly followed, would avoid a journey upto the Apex Court and the return journey to the grass-root court. If necessary and  found   expedient,  the   High   Court   may   on   its administrative side  issue necessary  instructions  to  cope with the situation herein indicated.      The appeal  for the reasons herein indicated is allowed and the  conviction of  the appellant  for an  offence under Sec. 302  IPC and  sentence imprisonment for life imposed by the learned  Additional Sessions  Judge and confirmed by the High Court are set aside and the case is remitted to learned Magistrate for disposal according to law. S.R.                                         Appeal allowed. 811