GOPI NATH GHOSH versus STATE OF WEST BENGAL

Citation: [1984] 1 S.C.R. 803 · Decided: 11-11-1983 · Supreme Court of India · Bench: D.A. DESAI, AMARENDRA NATH SEN · Disposal: Appeal(s) allowed

Judgment (excerpt)

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803 
GOPI NATH GHOSH 
v. 
STATE OF WEST BENGAL 
· November 11, 1983 
[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 
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 
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 
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 
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 
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 
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 
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B 
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B 
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804 
SlJPRBME COURT REPORTS 
(1984) l S.C.R. 
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Procedure for the trial of a summons case; and (d) the bar of Section 24 which 
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 
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 
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 
towards securing that children are given opportunities and facilities to develop 
in a healthy manner and in conditions of freedom and dignity

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