GOPI NATH GHOSH versus STATE OF WEST BENGAL

GOPI NATH GHOSH

STATE OF WEST BENGAL

· November 11, 1983

[D.A. DESAI AND AMARENDRA N.ATH SEN, JJ.J

Justice to Children-Constitution of India, 1950 Article 39 (f) read with Article 136-Court Will not allow technical contention of non-mainlainability of appeal on the ground New Plea is taken for the first timet when the Trial is vitiated for non·obscn•ance of the provisions of benel'olent statute-West Bengal children Act, 1959, Sections 2 (d), 2 (b), 4 to 6, 22, 23, 24 (2) and 26, scope of-Practice Diret·tions-Gufdance to Co'urls below for dealing with,_ case againll juvenile Delinquents.

The appellant, Gopinath Ghosh alongwith 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 Ol1osh on August 19, 1974. The High Court ·in appeal, acce.pted 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 ''child .. within the meaning of the expression in West Bengal Children Act 1959, the eritire triarwas vitiated. The court, by its order dated March 11, 1983 directed the Session Judge Nadiar to give finding on t_he age of the appellant on the date of the occurence. The Sessions Judge, in his· report, after detailed examination of the evidence of Chief Medical Officer of Health, Nadia, (PW!), 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 Schobl, gave finding that the appellant was aged between 16 and 17 years on the date of occurence i.e. on August 19, "1974, which finding is not challenged by the State.

Allowing the appeal by Special leave, the Court,

HELD: I.I 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 juvenile delinquent is arrested, lie/she has to be produced before juvenile court, and if no juvenile court is established for the area amongst others, the court of Session wil1 have powers of juvenile court; (b) such juvenile delin-quent Ordinarily has to be released on bail irrespective" of the nature of the offerice alleged to have been committed unless it is shown that th~ro appean: reasonable grounds for believing that the release is likely to bring him under the influeilce of any criminal or expose him to moral danger or defeat the ends . of justice; (c) Section 25 forbids any trial of juvenile delinquent and only an inquiry can be held in accordance with the provisions of the code of Criminal

Procedure for the trial of summons case; and (d) the bar of Section 24 which had been given an over riding effect as it opens with the non-ohstants clause takes away the power of the court to impose sentence of imprisonment unh:ss the case falls under the proviso. [808 A-CJ

1.2 -In the· instant case, the entire trial of the appellant is witi1out · jurisdiction and is vitiated. _The report of the Sessions Judge unquestionably established by unassailable evidence ~hat the appellant having been 16 to 17 years of age on the date of occurence was juvenile delinquenl 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 u·ntess the case of the appellant falls within the proviso to Section 24 (2).

[808 H, 809 A-BJ

1.3 Ordinarily, the Supreme Court would be reluctant to entertain . based on factual averments for the first thne before it However, the court is equally reluctant to ignore, overlook or n_ullify the beneficial provisions of 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 p,rovisions 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 healthy manner and in conditions of freedom and dignity and that child-hood and youth are protected against exploitation and against moral and material abondonment, it would not be proper to allow technical contention that the plea is being raised for the first tim~ in thC court and thereby thwart lhe beriefit of the provisions being extended to the itppellant, if he was otherwise entitled to it, [809 F; 808 -HJ · ·

Practice Directions :

Whenever 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 illquiry, an inquiry n1ust be made about the age of tp_e accused on the date of occurence. This sought to be made so where special Acts dealing with juvenile delinquents are in force. If necessary, the Magislrate may refer the accused to the Medical Board or the Civil Surgeon. as the case 1nay 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 accordarice with law. This procedure, if properly followed, would avoid, journey upto the apex court, and the return journey to the gross-root court. [809 H; 810 A·BJ

(The court suggested, that if necessary an found expendient, the High Court, on the administrative side nlay issue necessary instructions to cope with such situation). [810 BJ

Criminal Appeal No. 623

CRIMINAL APPELLATE JURISDICTION

of 1983.

• .....

Appeal by Special leave from the Judgment and Order dated the 17th January, 1982 of the Calcutta High Court in Cr!. Appeal No. 160 of 1977.

P. K. Chakraborty for the appellant.

G. S. Chamrjee 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 fa/a which landed on the left side chest below the neck of deceased Rabi. Information of the offence was lodged by Kortick 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. Division Bench of the High Court held that it is satisfactorily established that . the present appellant caused the injury ·with fa/a to deceased Rabi which proved fatal and therefore, the charge und~r 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 t!)e present appellant and accordingly allowed their appeal and set aside their conviction and sentence and acquitted them of all the charges .

Appellant Gopinath Ghosh has filed this appeal· by special

leave.

Learned counsel who appeared for the appellant urged that on the date afthe offence i.e.·on August 19, 1974, appellant was aged below·18 years and was therefore '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 trial, In view of this con-tention, the Court by its order dated March II, 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 givi11g an opportunity to both sides to lead oral and documentary evidence. Liberty was 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 hy this Court, t)le learned Additional Sessions Judge, First Court, Nadia directed Superinten-dent of Krishnagar Jail to produce accused Gopinatl1 Ghose in the office of the Chief Medical Officer, Nadia on June 4, 1983 for medical examination with view to ascertaining his age and submit the report to the court. Thereafter, the prosecution examined P .W. I Dr. A. K. Basu, Chief Medical Officer of Health, Nadia,"P.W. 2 Dr. J.C. Debnath, Radiologist, P.\y. 3 Dr. C.R. Bhattacharyya, Orthopaedic Surgeon and P.W. 4 Dr. R. B. Roy. TI;tereafter, Smt. Bhaktabala Dasi, mother of the appellant was examined as witness for the defence. The case was · adjourned as the appellant wanted to examine Mangalmoy Sarkar, Headmaster of Sudhakarpur High School to pro\>e entries from the Admission Register. That request w11s 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 11ot questioned before us.

Sec. 2(d) of the Act defines 'child' to mean person who has not attaine.d the age of eighteen years. Sec. 2(h). defin~s '1uvenile

delinquent' to mean 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 child pending inquiry. Sec. 23 casts an obligation on the officer-in-charge of the police station to which 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 non obstante clause which takes away the jurisdiction of the Court to impose sentence of death on juvenile deliquent 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 juvenile delinquent. There is proviso to sub-c112) of Sec.4124 which would enable the Court to impose sentence ·of imprisonment on juvenile delir1quent, if the conditions therein prescribed ~re 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. Irreads as under :

"Where child having been charged with an olfence appears or is produced before Court, the Court shall hold the inquiry in accordance with the provisions in the Code of Criminal Procedure, I 898, for the trial of summons case."

Sec. 26 confers power on the.Court enabling it to pass orders .regard· ing juvenile delinquents as therein mentioned . •

Sec. 4 confers power on the State Government to establish Juvenile Courts by 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 Juvenile Court is not established by Court of Session. It is not clear whether juvenile court .has been established for the area comprised in District Nadia. Sec. 6 provides tliat when child is brought before Magistrate or Court not empowered to pass an order under the Act, such Magistrate or ·Court shall forward the child to the nearest juvenile court or other Court or Magistrate having jurisdiction. . .

It clearly transpires from combined reading of the sections fiereinbefore exteacted that where juvenile delinquent is arrested, he/she has to be produced before juvenile court and if no juvenile court is established for the area amongst others, the Court of Session will have produces of juvenile court. Such 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 juvenile delinquent and only an inquiry can be held in accor-dance with the provisions of the Code of Criminal Procedure for the trial of sum mo~ case ana the bar of Sec. 24 which has been given an overriding effect as it opens with the non obstu11te clause likes away the power of the Court to impose 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 no.r 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 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 b~fore 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 ~re given opportnnities and facilities to develop in healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploi-tation and against moral and material abandonment, we consider it proper not to allow technical contention that this contention is being raised in this Court for the first time to thwart the benefit 0f the provisions being extended to the appellant, if he was otherwfae entitled to it.

The report of the learned Additional Sessions Judge is self-evident. II is unqu~stionably established on unassailable evidence

that on August i9, 1974, the date of the offence, appellant was aged between 16 and 17 years. He was therefore, 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 con· viction 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 unsustaionable 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 wou\d 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 Jaw keeping in view the provisions of the Act.Before we part .with this judgment, we must take notice of developing situation in recent months in this Court that the conten· lion about age of 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 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 very socially progressive statute by taking shield behind the techni-·cality of the contention being raised for the first time in this Court. way has therefore, to be found from this situation not conducive to speedy disposal of cases an!yet giving effect to the Jetter and th~ spirit of such socially beneficial legislation. We are of the opinion that whenever 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 delin· quent are in force. If necessary, the Magistrate may refer tlie

h984l 1 s.c.lt

SUIDME COURT iujPORts

accused to the Medical Board or the Civil Surgeon; as th.e case may be, for obtaining credit worthy evidence about age. The Magistrate . may as well call upon accused also to lead evidence about liis age. Thereafter, the learned Magistrate may proceed in accordence with law. This procedure, if properly followed, would avoid 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 instr_uctions 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 confj.rmed by the High Court are set aside and the case is remitted to learned Magistrate for disposal according to law.

Appeal allowed .