Holding

The trial was without jurisdiction; the conviction and life sentence were set aside, and the appellant was to be released on bail with the case remitted for appropriate juvenile inquiry.

Summary

Gopinath Ghosh was convicted by a Sessions Court and sentenced to life imprisonment for murder under IPC sections 302 and 34. He later contended before the Supreme Court that he was a "child" under the West Bengal Children Act, 1959, being only 16‑17 years old at the time of the offence. The Court ordered a medical age determination, which confirmed his juvenile status. It held that a juvenile delinquent must be dealt with by a juvenile court or, in its absence, by a Sessions Court exercising juvenile‑court powers, and that trial and imprisonment are barred by Section 24(2) of the Act except in the narrow proviso. Consequently, the entire trial was deemed without jurisdiction, the conviction and life sentence were set aside, and the appellant was ordered to be released on bail pending appropriate inquiry. The Court also emphasized that technical objections should not defeat the protective purpose of the juvenile legislation. The appeal was allowed and the matter remitted to the magistrate for disposal in accordance with the Act.

Issues considered

What was the appellant's age on the date of the offence and did it make him a child under the West Bengal Children Act, 1959?
Did the Sessions Court have jurisdiction to try and sentence a juvenile delinquent under the Act?
Can a conviction and life imprisonment under IPC sections 302/34 stand when the accused is a juvenile?
Should a new plea raised for the first time before the Supreme Court be entertained despite procedural technicalities?

Legislation cited

Code of Criminal Procedure, 1973
Constitution of Indias. Article 136, s. Article 39(f)
Indian Penal Code, 1860s. 302, s. 34
West Bengal Children Act, 1959s. 22, s. 23, s. 24(2), s. 25, s. 26, s. 2(d), s. 2(h), s. 4, s. 5, s. 6

Subjects

juvenile justicechild offenderWest Bengal Children Actjurisdictionlife imprisonmentIPC 302Section 34age determinationbailnon-obstante clause

Judgment

-,
.' 803
GOPI NATH GHOSH

J v.

STATE OF WEST BENGAL
A

· November 11, 1983
B
[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 a technical contention of non-mainlainability of
appeal on the ground a New Plea is taken for the first timet when the Trial is
vitiated for non·obscn•ance of the provisions of a benel'olent statute-West Bengal c
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 D
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 a
''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 E
directed the Session Judge Nadiar to give a 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 a finding that the appellant was aged
between 16 and 17 years on the date of occurence i.e. on August 19, "1974, which F
finding is not challenged by the State.

Allowing the appeal by Special leave, the Court,

HELD: I.I 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 G
a juvenile delinquent is arrested, lie/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 wil1 have powers of a juvenile court; (b) such a 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 H
the influeilce of any criminal or expose him to moral danger or defeat the ends .
of justice; (c) Section 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
804 (1984) l S.C.R.
SlJPRBME COURT REPORTS
, .
Procedure for the trial of a summons case; and (d) the bar of Section 24 which
A had been given an over riding effect as it opens with the non-ohstants clause
takes away the power of the court to impose a 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
B years of age on the date of occurence was a 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

c 1.3 Ordinarily, the Supreme Court would be reluctant to entertain a
. 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 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 p,rovisions of the Act read with clause (f) of Article
39 of the Constitution which provides that the State shall direct its policy
D 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 abondonment, it would not be proper to allow a 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 F -HJ · · •
·E .....
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 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
F 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, a journey upto the apex court, and the return journey to
G 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

H CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 623
of 1983.
Goi>INATH v. WEST BENGAL (Desai, 1.) 805
Appeal by Special leave from the Judgment and Order dated
the 17th January, 1982 of the Calcutta High Court in Cr!. Appeal A
No. 160 of 1977.

P. K. Chakraborty for the appellant.

G. S. Chamrjee for the .respondent. B
The Judgment of the Court was .delivered by

DESAI, J. Special leave granted.

Appellant Gopinath Ghosh was convicted by the learned ·C
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 fa/a which landed on the left .D
side chest below the neck of deceased Rabi. Information of the
offence was lodged by Kortick Ghosh, father of deceased Rabi at
L
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 E
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 F
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 G
present appellant caused the injury ·with a 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 H
accordingly allowed their appeal and set aside their conviction and
sentence and acquitted them of all the charges .

•
SUPRBMS COURT RBPoRTS (1984] l S.C.R.
Appellant Gopinath Ghosh has filed this appeal· by special
A. 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 a 'child' within the meaning of
B 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 con-
tention, the Court by its order dated March II, 1983 framed the
following issue for determination :

c "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
D 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
·E 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 a 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
F 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 a witness
for the defence. The case was · adjourned as the appellant wanted
to examine Mangalmoy Sarkar, Headmaster of Sudhakarpur High
G 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
II . finding is 11ot questioned before us.

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

•
GOi>INATH v. WlST BENGAL (be&ai, J.j 807
delinquent' to mean a child who has been found to have committed
an offence. Fasciculus of sections. in Chapter III bears the heading"' A
'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
B
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 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 a juvenile
delinquent. There is a proviso to sub-c112) of Sec.4124 which would c
enable the Court to impose a sentence ·of imprisonment on a 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 :
D

+ "Where a child having been charged with an olfence
appears or is produced before a Court, the Court shall
hold the inquiry in accordance with the provisions in the
E
Code of Criminal Procedure, I 898, for the trial of a
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 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 G
been established for the area comprised in District Nadia. Sec. 6
provides tliat when a child is brought before a 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.

r
808 SUPREME coliB.t B.Ei>OB.TS [1984.j i S.C.B..
It clearly transpires from a combined reading of the sections
A fiereinbefore exteacted 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
B 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 accor-
dance with the provisions of the Code of Criminal Procedure for the
c trial of a 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 a sentence of imprisonment
unless the case falls under the proviso.

Unfortunately, in this case, appellant Gopinath Ghosh never
D 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
E ·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 b~fore
F 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 a healthy manner and in conditions of freedom and
G dignity and that childhood and youth are protected against exploi-
tation 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 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
GOPINATH v. WEST BENGAL (Desai, i.) 869
that on August i9, 1974, the date of the offence, appellant was aged
between 16 and 17 years. He was therefore, a juvenile delinquent, A
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 B
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.
c
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 D
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 a
developing situation in recent months in this Court that the conten·
E
lion 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 F
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 techni-
·cality 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 an!yet giving effect to the Jetter and th~ G
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
y 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·
H

quent are in force. If necessary, the Magistrate may refer tlie
!HO SUIDME COURT iujPORts h984l 1 s.c.lt
accused to the Medical Board or the Civil Surgeon; as th.e case may
A 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 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
B
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
c 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.

S.R. Appeal allowed.

•
•