Sankar Prasad Mitra, C.J.
1. This Bench has been constituted pursuant to a reference under Chap. VII of the Appellate Side Rules by a Division Bench consisting of Mr. Justice P. K. Chanda and Mr. Justice Sudhamay Basu.
2. The question referred to us is as follows :--
'For the purpose of determining whether a person is a child or not within the meaning of Section 28 of the West Bengal Children Act, 1959, is the age to be determined with reference to the date of the commission of the offence or when the person is brought before the Court or with reference to some other date ?'
3. In Criminal Appeal No. 470 of 1'974, (Madan Pradhan v. The State) reported in 1976 (1) Cal LJ 224 Mr. Justice P. C. Barooah sitting with Mr. Justice H. N. Sen has held that if a person be a child 'on the date of the commission of the offence for which he was convicted' his trial along with an adult is 'clearly without jurisdiction being in contravention ofthe specific provision of Section 28(1) of the Act'.
4. The other Division Bench of Mr. Justice P. K. Chanda and Mr. Justice Sudhamay Basu was unable to agree with this view. According to their Lordships it is the date of trial and not the date of commission of offence that is relevant.
5. Our difficulty is that in view of the facts of the instant case the answer that we may give to the question referred to us would be academic.
6-8. The case of the petitioner is that on the date when the alleged offence took place the petitioner was below 18 years of age. The petitioner was born on the 13th of April. 1954 as appears from an affidavit sworn by the petitioner's father before the learned Additional Sessions Judge. The alleged incident took place on 8th of September, 1971. It was contended before the learned Additional Sessions Judge that as the petitioner was below 18 years of age at the time when the offence was alleged to have been committed by the petitioner along with others, the petitioner could (not) be tried along with other adult offenders. 'Child' has been defined in Section 2(d) which reads as follows : --
'Child' means a person who has not attained the age of 18 years. Section 2(h) defines 'jjuvenile delinquent' which is as follows :-- 'Juvenile delinquent' means a child who has been found to have committed an offence.
9. The facts of the present case are completely different from the facts in Madan Prodhan v. State of West Bengal, 197(5 (1) Cal LJ 224. In that case it appeared from tbe order-sheet of the learned Magistrate that the learned Magistrate had seen the medical report to the effect that the appellant was a minor. The learned Magistrate passed an order direct-ing the Investigating Officer to split up the case for submission to the Central Children's Court, Calcutta. It further appeared 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 commitial arose. The learned Magistrate however committed the appellant and the other accused to the Court of Session and overruled the contention holding that the West Bengal Children Act being a State Act would not apply to the present case in view of Section 27 of the Cr. P. C., 1973. In the present case wefind from the order-sheet that the accused was produced before the learned Magistrate on 25th of July 1972. At that time it was not contended before the learnedMagistrate that as the petitioner was a juvenile delinquent he should be dealt with according to the provisions of the West Bengal Children Act, 1959. The learned Magistrate proceeded with the case and framed charge against the petitioner under Section 304. I. P. C. and Section 27 of the Arms Act on October 19, 1973 and by his order of the same date committed the petitioner along with another accused to the Sessions Court. The learned Sessions Judge received commitment on November 5. 1973. He took cognizance and fixed the 30th November, 1973 for trial. It was only on the 30th November, 1973 that an objection was token on behalf of the petitioner that he was a child as defined in Section 2(d) of the West Bengal Children Act, 1959 and a juvenile delinquent as defined in Section 2(h) and as such the learned Magistrate who committed the petitioner to the Court of Session had no jurisdiction to commit. The learned Additional Sessions Judge was of opinion that he assumed jurisdiction on commitment and if the petitioner so desired the petitioner might move the Hon'ble High Court to quash the commitment. Against the above order of the learned Additional Sessions Judge the petitioner has come to this Court.
10. Section 6 provides that 'When a child is brought before a Magistrate or Court not empowered to pass an order under this Act, such Magistrate or Court shall forward the child to the nearest juvenile court or other court or Magistrate having jurisdiction'. We are of opinion that as the point that the petitioner is a juvenile delinquent was not raised before the learned Magistrate, the learned Magistrate was right in taking cognizance and proceeding with the case and as such his order of commitment cannot be challenged. We are also of the opinion that the Sessions Judge assumed jurisdiction on commitment and that being so, it cannot he said that there was any illegality in assuming jurisdiction. Section 3 of the West. Bengal Children Act, 1959 provides;
'Notwithstanding anything to the contrary contained in this Act, if during the course of any proceeding under this Act a child attains the age of 18 years, the proceeding may be continued and orders may be made under this Act in respect of him as if he was child'.
In our opinion Section 3 has no application to the facts of the present case as no proceeding was started under the West Bengal Children Act. In the application under Ss. 435, 439 and 561-A of the Criminal P. C. on which the present Rule w.as issued the petitioner did not pray that the order of commitment should be quashed. The only prayer made before this Court is that the petitioner should be segregated from the trial of the other two accused persons and that the petitioner should be tried according to the provisions of the West Bengal Children Act. 1959.
11. In view of the observations made above and considering the facts of the instant case the answer that we may give to the question referred to us would be academic and as such we refrain from doing so. The matter is referred back to the Division Bench for disposal.
N.C. Mukherji, J.
12. I agree.
B.C. Ray, J.
13. I agree.