In the matter of : Aptabuddin Munsi

In a sessions trial, the appellant being convicted under Sections 498A/302/34 IPC and sentenced to suffer imprisonment for life and R.I. for 3 years respectively and to pay fine with default clause, preferred a statutory appeal and after such appeal being admitted, he moved this court for suspension of sentence and for his release on bail.

While moving the said application for suspension of sentence, a claim of juvenility was raised before a Co-ordinate Bench of this Court and accordingly that bench directed the learned Chief Judicial Magistrate, Alipore to hold an enquiry in accordance with law and determine the age of the appellant on the date of occurrence. Already such enquiry has been conducted and a report has been submitted, which is now with the records. Now, going through the same, we find in the enquiry the appellant was found to be juvenile on the date of occurrence being below the age of 18 years and on that day he was 17 years 1 month and 9 days.

The findings of the learned CJM, Alipore has not been disputed from the side of the State.

Having regard to above, the regular trial of the appellant before a Sessions Court according to the provisions of Code of Criminal Procedure is completely without jurisdiction and consequently, the conviction of the appellant and sentence passed against him in such trial cannot be sustained and is set aside. The appeal stands allowed.

Even though, no juvenile in conflict with law can be tried in terms of the provisions of Code of Criminal Procedure, still he is liable to be proceeded against under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. We, therefore, direct the appellant Aptabuddin Munsi to surrender before the Juvenile Justice Board, 24-Parganas (South) within 4 weeks from this date and on his such surrender, the Board shall hold an inquiry in terms of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and pass necessary order in accordance with law without being prejudiced either by this order or by the order of the trial court. However, while passing order, the trial court must consider that the appellant has already spent out one and half year in custody. The enquiry must be completed within a period of 4 months as provided in the statute.

We make it clear, if not within the above period the appellant surrenders before the Juvenile Justice Board, 24- Parganas (South), the Board shall take necessary steps to ensure his presence for the enquiry.

The office is directed to communicate this order to the Juvenile Justice Board, 24-Parganas (South) at once.

A photostat plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Public Prosecutor to take appropriate steps in the matter.

Let a copy of this order is also handed over to the counsel for the appellant.

The office is also directed to send down the L.C.R. at once.

The application being CRAN No. 3141 of 2015 stands disposed of.