Calcutta High Court (Appellete Side)
(Name Withheld As vs State Of West Bengal & Anr on 29 July, 2026
Author: Arijit Banerjee
Bench: Arijit Banerjee
29.07.2026
IN THE HIGH COURT AT CALCUTTA
Item No.1-4. CRIMINAL APPELLATE JURISDICTION
Court No. 8 APPELLATE SIDE
CRA (DB) 331 of 2023
With
CRAN 2 of 2025
Mr. X
(Name withheld as appellant is child in conflict with law).
-Vs.-
State of West Bengal & Anr.
With
CRA (DB) 324 of 2023
Chandan @ Bapan Ghosh
-Vs.-
State of West Bengal & Anr.
With
CRA (DB) 304 of 2023
Mintu Ghosh @ Suman Ghosh
. -Vs.-
State of West Bengal & Anr.
With
CRA (SB) 172 of 2023. Soumen Ghosh @ Kota Ghosh.
-Vs.-
State of West Bengal & Anr.
In Re :Mr. X (Name withheld as appellant is child in conflict
with law).
......Petitioner
For the appellant in CRA (DB) 331 of 2023:
Mr. Sudipto Maitra, Sr. Adv.,
Mr. Vijay Verma.,
Mr. Dwaipayan Biswas,
Mr. Anik Bhattacharya. .....Advocates
Page 2
For the State :
Mr. Kallol Mondal, Ld. PP,
Ms. Anamitra Banerjee
.....Advocates
Dictated by Apurba Sinha Ray, J.
In Re: CRAN 2 of 2025 in CRA (DB) 331 of 2023
1. Mr. Moitra, learned Senior Counsel appearing for Mr. X, has
submitted that this application was filed by the petitioner for
an appropriate order in connection with the judgment of
conviction dated 07.08.2023 and order of sentence dated
08.08.2023 passed by the learned Additional District and
Sessions Judge, 2nd Court-cum-Judge, Special POCSO Court,
Bankura in Special Sessions Trial No. 03(03) of 2022.
2. Mr. Moitra has further submitted that although the
Investigating Officer has disclosed the juvenility of the
present petitioner in the chargesheet, the learned Trial Judge
without sending the matter to the Juvenile Justice Board,
took cognizance on 23.07.2021 on the basis of such Police
report. Subsequently, the case of the CCL was sent to the
Juvenile Justice Board, Bankura after splitting up the case
record for preliminary assessment. After preliminary
assessment, the Juvenile Justice Board held that the CCL
had enough maturity to realise the nature of the offence
allegedly committed by him and therefore, the trial of the
CCL should be conducted as an adult by the Children’s
Page 3
Court, Bankura. According to Mr. Moitra, thereafter trial of
the accused was held alongwith other adult accused without
making any further enquiry under Section 19(1)(ii) of the
Juvenile Justice (Care and protection of Children) Act, 2015.
3. According to Mr. Moitra, the learned Trial Judge has,
therefore, committed a series of mistakes and, therefore,
such illegalities vitiated the trial against the present
petitioner who was admittedly a juvenile at the time of alleged
commission of the offence. In support of his contention Mr.
Moitra has relied upon two judgments of the Hon’ble Apex
Court i.e. Ajeet Gurjar vs. State of Madhya Pradesh
reported in (2023) 15 SCC 678 and Thirumoorthy vs.
State represented by the Inspector of Police reported in 2024
(2) Crimes 21 (SC).
4. Mr. Kallol Mondal, learned Public Prosecutor has vehemently
argued that it is incorrect to say that the petitioner being
juvenile was tried alongwith other adult accused. He has
specifically drawn the attention of this Court to the
observation of the learned Trial Judge wherein the learned
Judge has categorically stated the trial of CCL was separately
held by the Court after registering special (POCSO) case No.
03 of 2022 in child friendly environment. Mr. Mondal has
further submitted that as the Juvenile Justice Board had
clearly held that the petitioner had enough maturity to
realise the nature of the offence allegedly committed by him,
and he should be tried as an adult by the Children’s Court,
there is no wrong committed by the learned Trial Judge in
holding separate trial against the petitioner as an adult.
Page 4
5. Section 19 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 in Subsection 1 is hereinbelow:
“19. Powers of Children’s Court. (1)After the
receipt of preliminary assessment from the Board
under section 15, the Children’s Court may decide
that-
‘(i) there is a need for trial of the child as an adult as
per the provisions of the Code of Criminal Procedure,
1973 and pass appropriate orders after trial subject
to the provisions of this section and section 21,
considering the special needs of the child, the tenets
of fair trial and maintaining a child friendly
atmosphere;
(ii) there is no need for trial of the child as an adult
and may conduct an inquiry as a Board and pass
appropriate orders in accordance with the provisions
of section
18………………………………………………………………
…………………………………………………………………
…”
From the above it appears that after receipt of preliminary
assessment report from the Juvenile Justice Board, the
POCSO Court is under a duty to decide whether there is a
need for trial of the child as an adult under the provisions of
the Code of Criminal Procedure or whether, there is no need
for trial of the child as an adult. In this regard, the Hon’ble
Supreme Court in Ajeet Gurjar (supra), held as hereunder:-
Page 5
“9. There are two parts to sub-section 1 of Section
19. The first part requires the children’s Court to
decide whether there is a need for trial of the child
as an adult as per the provisions of the Code of
Criminal Procedure, 1973. If the Court is satisfied
that the child needs to be tried as an adult as per
the provisions of Cr.P.C., the Children’s Court can
proceed with the trial and thereafter pass an
appropriate order subject to the provisions of
sections 19 and 21 of the JJ Act.
10. Clause (ii) of sub-section 1 of Section 19 is very
crucial which indicates that though the word ‘may’
have been used in the opening part of sub-section 1
of Section 19, the same will have to be read as
‘shall’. Clause (ii) provides that after examining
whether there is a need for a trial of the child as an
adult, if the children’s Court comes to the conclusion
that there is no need for the trial of the child as an
adult, instead of sending back the matter to the
Board, the Court itself is empowered to conduct an
inquiry and pass appropriate orders in accordance
with provisions of Section 18 of the JJ Act. The trial
of a child as an adult and his trial as a juvenile by
the Juvenile Justice Board has different
consequences.
11. Therefore, holding an inquiry in terms of clause
(i) of sub-section 1 of Section 19 is not an empty
Page 6formality. The reason is that if the Children’s Court
comes to the conclusion that there is no need to try
the child as an adult, he will be entitled to be treated
differently in the sense that action can be taken
against him only in terms of Section 18 of the JJ
Act.”
6. After referring to the judgment of Tirumoorthy (supra), Mr.
Moitra has drawn the attention of this Court to the fact that
juvenility of the petitioner was known to the Investigating
Officer as well as the learned Trial Judge. In the above
referred case law it has been clearly laid down that the
procedure provided under Sections 15 and 19 of the Act have
been held to be mandatory and in this regard the Hon’ble
Apex Court again referred to the decision in Ajeet Gurjar
(supra). According to the Hon’ble Court, in the absence of
preliminary assessment being conducted by the Board under
Section 15(1) read with Section 18(3), it was impermissible
for the trial court to have accepted the chargesheet and to
have proceeded with the trial of the accused.
7. However, in Tirumoorthy (supra) case, no preliminary
assessment was done by the Board, so as to find out whether
or not the accused should be tried as an adult but in the
case in hand such preliminary assessment was done by
Juvenile Justice Board, Bankura and it reported that the
petitioner, although was a minor, had sufficient maturity to
understand the nature of the offence and he should be tried
as an adult.
Page 7
8. I have gone through the trial court records being no. Special
Case no. 16 of 2021 with special S.T. no. 02(03) 2022
wherein four accused persons namely Soumen @ Kota
Ghosh, Sanju @ Kalo Ghosh, Chandan @ Bapan Ghosh,
Mintu Ghosh were tried and also the Trial Court records of
special case no. 3(3) 2022 whereby the child in conflict with
law, that is, the present petitioner, was tried separately by
the learned Trial Court.
9. It is seen, from the records of Special Case no. 16 of 2021
that on 23.07.2021, five accused persons including the
present petitioner were produced before the learned trial
court and on that day, the learned trial judge received the
original chargesheet being no. 35 of 2021 dated 21.07.2021
and thereafter cognizance was taken by the learned special
court and the CCL was sent to the Juvenile Justice Board,
Bankura after splitting up the record. Subsequently, on
16.02.2022 the learned Special Judge received the order from
the Juvenile Justice Board alongwith the preliminary
assessment report under Section 15 of the Act. The learned
Trial Judge has recorded in his order No. 1 dated 16.02.2022
in special case no. 3 of 2022 that the Juvenile Justice Board,
Bankura had reported that the child has mental and physical
capacity to commit such heinous offence and he has the
ability to understand the consequences of the offence.
Page 8
10. Learned trial judge has made the following observation:-
“This children court, after taking into account the
nature of offence, the age of the CCL and the PAR
is also of the view that the CCL has sufficient
mental and physical capacity to commit such
heinous offence and he has ability to understand
the consequences of the offence. So, there is need
for trial of the CCL as an adult.
Register the case as Special Court case under
Section 18(3)” of the Juvenile Justice (Care and
Protection of Children) Act, 2015.”
11. From the above it appears that the learned Special Judge
did not make any independent enquiry as required under
Section 19 of the Juvenile Justice (Care and Protection of
Children) Act, 2015. Therefore, from the case record it
transpires that after receipt of preliminary assessment report
from the Juvenile Justice Board, the learned Trial Judge did
not make an enquiry under Section 19 to point out that the
Children’s Court is satisfied about the maturity of the CCL
and as to why he should be tried as an adult under Section
19(1) of the Juvenile Justice Board Act. This decision is very
vital in view of Ajeet Gurjar (supra) case which was
subsequently referred to by the Hon’ble Apex Court in its
decision in Tirumoorthy case (supra). Moreover, it is found
that on 23.07.2021 the learned Special Judge took
cognizance against five accused persons including the
present petitioner. Therefore, it prima facie appears that
before sending the record and the CCL to Juvenile Justice
Board, Bankura the learned Special Judge took cognizance of
offence against the CCL which is not proper under the law of
the land. It is also found from the trial court record in special
Page 9
case no. 3 of 2022, the learned Special Judge did not whisper
whether he took cognizance of the offence against the
petitioner/ CCL. Under the law the special Judge can take
cognizance against the CCL only after receiving the
preliminary assessment report holding that the CCL is liable
to be tried as an adult. Without receiving such a preliminary
assessment report, taking cognizance against the CCL by the
learned special judge is beyond his jurisdiction. As the order
no. 1 dated 16.02.2022 in Special Case No. 3 of 2022 did not
disclose that the learned Special Judge took cognizance after
receipt of the preliminary assessment report from the
Juvenile Justice Board, Bankura, it gives credence to the
submission of learned counsel Mr. Moitra that learned
Special Judge had taken cognizance on 23.07.2021 against
the petitioner alongwith other adult accused even before
receiving the preliminary assessment report from Juvenile
Justice Board, Bankura. Therefore, we find that there are
serious illegalities and the same cannot be allowed to be
perpetuated.
12. In view of the above, the judgment of conviction and order
of sentence passed against the CCL cannot be sustained in
law and accordingly, the judgment of conviction and sentence
dated 07.08.2023/08.08.2023 passed in Special Sessions
Trial No. 03(03) of 2022 is hereby set aside. The CCL be set
at liberty at once. Bail bonds be discharged. Let a copy of this
order be sent to the Superintendent of the concerned
Correctional Home at once for immediate release of CCL from
the judicial custody, if not already released.
Page 10
13. Accordingly, CRA(DB) 331 of 2023 along with CRAN 2 of
2025 is, thus, disposed of. The relevant TCR be sent back to
the learned Trial Court alongwith a copy of this order at once.
14. Urgent photostat certified copies of this Order, if applied
for, be supplied to the parties on compliance of all necessary
formalities.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY, J.)
