Sudhamay Basu, J.
1. This Rule was obtained by the petitioner who was committed to the Court of Session by a Magistrate, 1st Class, Sealdah on October 19, 1973, to be tried along with two others of charges Under Sections 304/34, I. P. C. and Under Section 27 of the Arms Act. The occurrence, according to the prosecution, took place on the 8th of September, 1971, at about 11.30 P. M. when the three accused involved in the sessions trial fired a few shots at 38/A, Murari Pukur Road, killing one person and injuring another who were on the roof of the house. The petitioner alleges that he was seventeen years five months when the alleged offence was committed. An affidavit sworn by the father of the petitioner, Sri Kalipada Bhowmick, states that the petitioner was born on 13-4-1954. When the sessions trial was due to commence the petitioner submitted that as he was a child under the West Bengal Children Act, 1959, he could not be tried with the other adult accused persons. The learned Sessions Judge noted that the petitioner did not contend that he was still a child but the contention on behalf of the petitioner was that the Magistrate who committed the petitioner to the Court of Session had no jurisdiction. The learned Sessions Judge held that he assumed jurisdiction on the basis of commitment. As the matter related to jurisdiction he gave leave to the petitioner to move this Court. In the circumstances a rule was obtained in this case calling upon the District Magistrate, 24 Parganas, to show cause why the petitioner should not be segregated from the trial of the other two accused persons.
2. According to Section 2(d) of the West Bengal Children Act, 1959, 'Child' means a person who has not attained the age of 18 years. Section 28 which provides joint trial of child and adult runs as follows :--
(1) Notwithstanding anything to the contrary contained in Section 239 of the Criminal P. C., 1898, or any other law for the time being in force, no child shall be charged with, or tried for, any offence together with an adult.
(2) Where a child and an adult are accused of an offence for which Under Section 239 of the Criminal P. C., 1898, or any other law for the time being in force, they would, but for the prohibition contained in Sub-section (1) be charged and tried together, the Court taking cognizance of the offence shall direct separate trials of the child and the adult. The crucial point for determination in this Rule is when is the age to be calculated for the purpose of Section 28. Is the age at the time of the commission of the offence, to be taken into consideration or is the age when the person concerned is charged or tried, to be considered?
3. Some of the relevant sections of the West Bengal Children Act, 1959, may be noted. Section 3 runs as follows :
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 eighteen years, the proceeding may be continued and orders may be made under this Act in respect of him as if he was a child.
Section 6 provides
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'. It may be mentioned that according to Section 22 which relates to bail and custody of children pending enquiry the expression used is 'when a child is arrested or detained on a charge for any offence, whether bailable or not, or appears or is brought before a Court ..........
Section 26 is concerned with orders that may be passed regarding juvenile delinquents to be sent to a reformatory or borstal school. It may be incidentally noted that a juvenile delinquent Under Section 2(h) means a child who has been found to have committed offence. Therefore, it seems that the Court may send to borstal or reformatory school a person who is not only a child at the time of the commission of the offence but who has been found to have committed an offence. Again Section 40 which deals with presumption and determination of age runs as follows :--
Whenever any person is brought before a Court to be dealt with under any of the provisions of this Act as a child the Court shall make due inquiry as to the age of that person and also, for the purpose of Section 41, as to his religious persuation and shall after taking such evidence as may be forthcoming, record a finding whether the person is a child or not and what his age is. The age so found by the Court, shall, for the purposes of this Act, be deemed to be the true age of such person.
It would thus appear that the age to be determined by the Court upon enquiry is when a person is brought before a Court to be dealt with and not when he committed the offence.
4. In the case of Ramji Missar v. State of Bihar reported in : AIR1963SC1088 the Supreme Court, having regard to the object of Probation of Offenders Act, 1958, which was to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age, held that the object would make it clear that the question of age of the person is relevant not for the purpose of determining his guilt but only for the purpose of punishment. Where, therefore, the Court finds that the offender is not a person of the age of 21 on the date when the Court found him guilty Section 6(1) has no application to him. The aforesaid decision on a statute which is somewhat in pari materia with the West Bengal Children Act also lends assurance to the above views. In another case reported in : 1975CriLJ1666 the Supreme Court in applying Section 21 of the Uttar Pradesh Children Act, 1951, which starts with the following words--
Whenever a child is found to havecommitted offence ...............' noted that the age of the person concerned 'at the time of the trial' was found by the trial Court to be about 15 years. This also seems to indicate that the crucial point of time was not when the offence was committed but the time of trial.
5. It, however, appears that In Criminal Appeal No. 470 of 1974, (Madan Prodhan v. The State) a Division Bench consisting of P. C. Barooah and H. N. Sen, JJ. 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 of the specific provision of Section 28(1) of the Act.'
6. As we were unable to agree with the aforesaid decision we referred the matter to the Hon'ble Chief Justice to constitute a Full Bench for consideration of the same under Chap. VII of the Appellate Side Rules and/or in terms of the principles laid down by the Supreme Court that if one Division Bench differs from an earlier view on a question of law of another Division Bench, & reference was to be made to a larger Division Bench : Mahadeolal v. A. G., West Bengal, : 3SCR578 ; Jaisri v. Rajdewan, : 2SCR558 ; Bhagwan v. Ramchand, : 3SCR218 .
We raised the following question for the determination by a larger Bench :
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.
7. A Full Bench was constituted by The Hon'ble Chief Justice consisting of himself and N. C. Mukherji and B. C. Ray, JJ. to go into the question. By a judgment dated 30-3-1977 their Lordships felt that 'the answer that we may give to the question referred to us would be academic and as such we refrain from doing so'. Their Lordships considered the facts of both the cases and thought that they were completely different. Any comment will be indecorous, incompetent and useless at this stage.
8. The result is unfortunate, The litigants are deprived of an early authoritative pronouncement by the Full Bench on the question which we referred to it, Although the Full Bench refrained from answering the question raised by us ; it considered the merit of the case and held 'we are also of the opinion that the Sessions Judge assumed jurisdiction on commitment and that being so, it cannot be said that there was any illegality in assuming jurisdiction'. The said Bench was not sitting in appeal and its pronouncement on merit we believe, is not strictly binding on us. But the same is certainly of great weight. The facts of the two cases are undoubtedly different but in view of the decision by the other Bench in the case of Madan Prodhan v. State, we regret, we are unable to hold that the point of law raised before us was irrelevant. Out of deference to the prevailing practice and the salutary principles enunciated by the Supreme Court from time to time referred to earlier, we wanted to refrain from expressing a view contrary to that held by the other Division Bench. We however find ourselves constrained to do the same in order to dispose of the present rule.
In our view the question whether a person is a child or not has to be determined not with reference to the date of the commission of the offence but with reference to the date when the person is brought before the Court to be dealt with. In that view of the matter the petitioner's contention will fail.
9. The rule is, therefore, discharged.
10. I agree.