P.C Borooah, J.:—The appellant Madan Pradhan alias Munna was tried along with one Kartick Debnath before Shri M.R Mallick, Additional Sessions Judge. Sixth Court, Alipore on a charge under S. 302/??? of the Indian Penal Code on the allegation that the appellant with the other accused person had on March 24, 1973 at Turf Road within Police Station Bhowanipur in Calcutta committed murder by intentionally or knowingly causing the death of one Ramlal Nath in furtherance of the common intention of them both.
2. The learned Judge by an order dated October 12, 1974 found both the appellant and the other accused person guilty of the charge under S. 302/34 of the Indian Penal Code and sentenced each of them to suffer imprisonment for life.
3. Mr. Nalin Chandra Banerjee, learned Senior Advocate appearing on behalf of the appellant, has submitted before us that the trial of the appellant who was a ‘Juvenile delinquent’ within the meaning of S. 2(g) of the West Bengal Children Act, 1959 (hereinafter referred to as the Act) along with Kartick Debnath who was an adult was clearly barred under S. 28(1) of the said Act. As such, the trial and the conviction is without jurisdiction.
4. Mr. C.R Bag, learned Advocate appearing on behalf of the State does not dispute the fact that the appellant was a minor on the date of the commission of the alleged offence or that the trial is without jurisdiction.
5. It appears from the order sheet of the learned Magistrate dated 29.8.1973 that the learned Magistrate had seen the medical report to the effect that the appellant before us was a minor. By the said order the learned Magistrate also directed the Investigating Officer to split up the case for submission to the Central Children's Court, Calcutta. It appears that this order of the learned Magistrate was overlooked or disregarded and no step for splitting up of the trial was taken by the prosecution. This point was again agitated at the time when the question of committal arose. The learned Magistrate in committing the appellant and Kartick Debnath to the Court of Sessions by his order dated 12.7.74 was of the view that the West Bengal Children Act being a State Act would not apply to the present case in view of S. 27 of the Code of Criminal Procedure, 1973.
6. It is undisputed that the appellant Madan Pradhan alias Munna was a ‘child’ or in other words, he had not attained the age of eighteen years on the date of the commission of the murder. He was, therefore, a juvenile delinquent within the meaning of S. 2(g) of the Act.
7. Section 28(1) of the Act debars the trial of a child together with an adult. The question is whether after coming into force of the Code of Criminal Procedure, 1973 the provisions of the Act would cease to apply to the case of a juvenile delinquent.
8. Section 5 of the new Code lays down, inter alia, that nothing contained therein shall in the absence of a specific provision to the contrary affect any special or local law for the time being in force. Therefore the said section saves any special or any local laws which would remain unaffected by the Code unless there is any specific provision to the contrary either in the Code or in the local or special law.
9. Section 27 of the Code permits trial of a juvenile by courts of certain Magistrates where the offence committed is not punishable with death or imprisonment for life. This section does not in any way affect the provisions of the Act or take away the jurisdiction conferred by the Act.
10. In view of what has been stated above, we must hold that as the appellant Madan Pradhan alias Munna was clearly a child on the date of the commission of the offence for which he was convicted, his trial along with Kartick Debnath who was an adult was clearly without jurisdiction being in contravention of the specific provisions of S. 28(1) of the Act. The conviction and sentence passed on the appellant under S. 302/34 of the Indian Penal Code must accordingly be set aside.
11. The appeal must therefore succeed. The order of conviction of the appellant under S. 302/34 of the Indian Penal Code and the sentence of imprisonment for life imposed upon him are set aside.
12. The accused appellant will be produced before the learned Magistrate who will forward him to the appropriate Children's Court at Calcutta to be tried in accordance with law.
H.N Sen, J.:—I agree.
Appeal allowed.