(1) These four references have been made by the Sessions Judge, Gulbarga to quash the orders of commitment under Section 215 of the Code of Criminal Procedure in each of the cases, on the ground that the respondent or the respondents committed to his Court for trial have to be tried under the Mysore Children Act, 1964 and that the order of commitment in each of the cases in contrary to law. None of the respondents in any of the cases appeared after due notice. We therefore requested Mr. Malimath to appear as Amicus curiae.
(2) There is no dispute that none of the respondents in these cases has attained the age of 16 years and is therefore a child as defined as Section 4(1)(f) of the Mysore Children Act, 1964. The sole ground on which the learned Sessions Judge has sought for the quashing of the order of commitment in each case is that the respondent or respondents are wholly triable by a Juvenile Court under the provisions of the Mysore Children Act, 1964 and that the order of commitment of the respondent or respondents is contrary to law.
(3)Mr. Ashrit the learned Government Pleader who has appeared on behalf of the State has supported the references and has sought to sustain them by placing reliance on the decision of this Court in Siddappa v. State of Mysore, 1965(2) Mys, LJ 326, in which it has been laid down that Section 8 of the Mysore Children Act, 1964 confers on a Magistrate presiding over the Juvenile Court exclusive jurisdiction to try a juvenile offender though charged with the offender of murder. Mr. Malimath has submitted that the provisions contained in Section 8(1) of the Mysore Children Act (hereinafter referred to as the Act) do not take away the power of enquiry into cases triable by the court of session conferred on a Magistrate of the First Class and other Magistrates mentioned in Section 206 under Chapter XVIII of the Code of Criminal Procedure. The three children in Criminal Revision Case No. 22 of 1965 are charged, along with others, with the offence of murder punishable under Section 302 read with other Sections of the Indian Penal Code; the child in Criminal Revision case No. 42 of 1965 is a girl who has not attained the age of 18 years and is a child under Section 4(1)(f) of the Act. She has been charged, along with others, with an offence punishable under Section 307 (read with other Sections) punishable with imprisonment for life. The Magistrate has committed these accused under Section 207A of the Code of Criminal Procedure.
(4) Now, we have to see whether the order of commitment passed in each of these cases is contrary to the provisions of Section 8(1) of the Act and is therefore required to be quashed.
(5) The preamble to the Act indicates that a consolidates and amends the law for the trial of juvenile offenders in the State of Mysore and for certain other purposes specified therein. Chapter I to IV and certain other Chapters of the Act came into force in the whole State of Mysore on April 9, 1964, 'Juvenile Offender' is defined in Section 4(1)(n) as meaning 'any child who has been found to have committed an offence'. We have already indicated that according to Sec.4(1) of the Act 'child' means a boy who has not attained the age of eighteen years'. It is therefore clear that the respondents in all these cases are juvenile offenders.
(6) The Privy Council contained in Chapter II of the Act define the powers and functions of Courts having jurisdiction under the Act. Section 7(1) empowers the State Government to constitute by Notification one or more Juvenile Courts for any area specified in the notification, for the purposes of the Act. Such Court will be presided over by a Magistrate of the First Class who in the opinion of the State Government has special knowledge of the Child delinquency and child welfare.
(7) Since Section 8 of the Act is decisive of the question at issue, we read the same at this stage.
'(8) Powers of Juvenile Courts and other Courts:
(1) Where a Juvenile Court has been constituted for any area, such Court shall, notwithstanding anything contained in any other law for the time being in force, but save as otherwise provided in this Act, have power exclusively to try all cases in which a child is charged with the commission of an offence and shall deal with and dispose of all other proceedings under this Act; but shall not have power to try any case in which an adult is charged with an offence under Chapter IV of Act.
(2) Where no Juvenile Court has been constituted for any area, the powers conferred on the Juvenile Court by or under this Act shall be exercised in that area, only by the following namely:
(a) the Court of the District Magistrate; or
(b) the Court of any salaried Magistrate of the First Class.
(3) The powers conferred on the Juvenile Court by the High Court and the Court of Session, when the proceedings come before them in appeal, revision or otherwise'.
The first sub-section lays down, quite obviously the following prepositions:
(1) Where a Juvenile Court has been constituted for any area, such Court shall have power exclusively to try all in which a child is charged with the commission of an offence and shall deal with and dispose of all other proceedings under this Act. The jurisdiction conferred is exclusive and extends to all cases in which a child is charged with the commission of an offence;
(2) this power is only subject to any exception as may have been provided for in the Act;
(3) this power shall be exercisable by the Juvenile Court notwithstanding anything contained in any other law for the time being in force; and
(4) the power conferred by this Section shall not extend to the trial of any case in what an adult is charged with an offence under Chapter IV of the Act, i.e., special offences in respect of children.
It is manifest that the Juvenile Court has exclusive power in try a child charged with an offence. Further, this power extends to trial of all cases irrespective of anything contained in any other law. This obviously is the fair construction of the words used according to their natural and ordinary meaning. In that light the implications of the non-obstinate clause, viz., 'notwithstanding anything contained in any other law for the time being in force' would be that the provisions contained in any other law regarding the trial of different offences by different Courts shall not in any way affect the exclusive jurisdiction conferred on the Juvenile Court.
(8) Section 28 of the Code of Criminal Procedure lays down that any offence under the Indian Penal Code may be tried by the High Court, by the Court of Session or by any other court by which such offence is shown in the eighth column of the II Schedule to be trials. The offence under Section 302 and 307 of the Indian Penal Code are triable exclusively by a Court of Section. Section 29 provisions of trial of offences under other laws. Sub-section (1) lays down that subject to the other provisions of the Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court. Sub-section (2) provides for a case where no Court is mentioned in such law. According to it, such offences shall be tried by any Court constituted under the Code by which such offences are shown in the eighth column of the Second Schedule to be triable. In view of this provision, the offence punishable under Section 127 of the Indian Railways Act which is punishable with imprisonment for life shall be triable by a Court of Session. In view of the non obstante clause contained in Section 8(1) of the Act, it has to be inferred that it is only a Juvenile Court that has the competence to try these offences and not a Court of Session as provided for by Section 28 or Section 29 read with the Second Schedule to the Code of Criminal Procedure.
(9) Mr. Malimath contended that there was nothing in Section 8(1) of the Act which prohibited or deprived the ordinary Court from holding the committal proceedings and that therefore the order of commitment passed by the learned Magistrate in all these cases cannot be held to be invalid. He further contended that the words 'or otherwise' occurring at the end of sub-section (3) lent support to the view that a Court of Session would have jurisdiction to try any case in which a child is charged with an offence triable by a Court of Session and is duly committed to if according to the provisions contained in the Code of Criminal Procedure.
(10) So far as in the first part of the argument is concerned, it is true that there is no reference to 'any inquiry' in Section 8(1) of the Act. Does the absence of reference to 'any inquiry' in Section 8(1) affect the exclusive jurisdiction of a Juvenile Court to try an offence with which a child is charged? We can find a solution to this difficulty from the heading and the provisions contained in Chapter XVIII of the Code of Criminal Procedure read with Section 8(1) of the Act. The title of that Chapter is 'Of inquiry into cases triable by the Court of Session or High Court'. The inquiry contemplated by this Chapter precedes the trial by a Court of Session Ss. 207A(6) and 209 of the Code empower the Magistrate holding such inquiry to discharge the accused person if he is of the opinion that the evidence taken, if any, and the documents (referred to in Section 173) disclose no ground for committing the accused person for trial to a Sessions Court. Chapter XVIII envisages a trial after commitment, by a Court of Session. But when Section 8(1) of the Act confers exclusive jurisdiction on a Juvenile Court to try all cases in which a child is charged with the commission of an offence, the question of provisions relating to committal inquiry will have no place in the scheme of trail by a Juvenile Court. When the Magistrate who is to hold the inquiry has himself been empowered to try the offender, it has to be inferred that the provisions contained in Chapter XI of Code are inoperative in respect of trials to be held under the Act.
(11) As regards the word 'otherwise' occurring at the end of sub-section (3) of Section 8, it was submitted that the observation of the Court in 1965(2) Mys LJ 326 that it was 'an obscure expression the meaning of which is not easy to understand' virtually laid down that the said expression with either superfluous or meaningless. But it has been observed in the same judgment at a later stage that the word 'otherwise' means a proceeding coming before the High Court or the Court of Session 'by a process known to law'. We are in respectful agreement with this view expressed at the later stage. All that the word 'otherwise' means is whenever the case of a juvenile offender comes before the Sessions Court or the High Court in any manner otherwise than by an appeal or revision, it would be open to the High Court or the Court of Session to exercise all the powers of a Juvenile Court in respect of such an offender. All the word signifies is that the proceeding in which a juvenile offender is involved 'comes before the High Court or the Court of Session by some process prescribed by law.'
(12) The words 'Save as otherwise provided in this Act' occurring in Section 8(1) seem to have reference to Section 9, 10 and other allied Sections of the Act. Section 9 prescribes the procedure to be followed by the Court of a Magistrate which is not empowered to exercise the powers of a Juvenile Court. Such a Magistrate before him is a child and then forward the record of the proceedings and the child to the Court having jurisdiction. The Court to which the proceedings are forwarded has to hold an enquiry as if the child was originally brought before it. According to Section 10 a child cannot be charged with or tried for any offence together with an adult, under the Act, notwithstanding anything contained in Section 239 of the Code of Criminal Procedure. The Court taking cognizance of the offence has to direct a separate trial of the child.
(13) It was argued that section 11 lent support to the view that in the case of a Juvenile offender a committal enquiry could still be held by the court of a Magistrate and that there was no bar to the committal of a juvenile offender to the court of Session. Section 11 reads:
'(11) Procedure in inquires and trials:
Such as otherwise expressly provided by or under this Act, a competent Court while holding an inquiry and in the trial of cases and the conduct of proceedings under this Act, shall as far as practicable, follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the producer laid down in the Code of Criminal Procedure, 1898, for trials to summons cases.'
'Competent Court has been defined in Section 4(1)(g) of the Act as meaning a Juvenile Court constituted under Section 7; and where no such court has been constituted, it includes any court empowered under sub-section (2) of Section 8 to exercise the powers conferred on a Juvenile court. So the inquiry that is contemplated under section 11 must necessarily have reference to an inquiry under the Act as the section itself makes it clear; the Section has no reference to an inquiry under the Code of Criminal Procedure though the procedure to be followed in an inquiry is the one laid down in the Code. Secs. 39 to 41 refer to inquiring which a juvenile court can make in deciding upon the measures for the care and protection of neglected children. Section 59 and some other Sections contained in chapter VII of the Act also provide for certain enquiries being made by a competent court in regard to juvenile offenders before passing the various kinds of orders mentioned therein. Since the words used in Section.11, viz., 'while holding an inquiry and in the trial of cases and the conduct of proceedings under the Act, it would be wholly incorrect to interpret the word 'inquiry' as having reference to an inquiry contemplated by chapter XVIII of the Code.
(14) There is yet another reason which inclines us to hold that the Act does not permit the committal of a juvenile offender to and his trial by a court of Session. Section 84 lays down the subject to the provisions of that section, any person aggrieved by an order made by a competent court under the Act may prefer an appeal to the Court of Session within thirty days from the date of such order. If section 8(3) had permitted the trial of a juvenile offender by a court of Session, the Section providing for appeal would have been differently worded and express provision would have been made for an appeal to the High Court.
(15) We have considered the relevant provisions of the Act and have come to the conclusions that, all cases in which a juvenile offender is charged with an offence, whether triable by a court of a Magistrate or the court of session under the provisions of the Code of Criminal Procedure, have to be tried by the Juvenile court as such court has exclusive jurisdiction to try a juvenile offender who has been charged with any offence under the Indian Penal Code or any other law. Our attention was drawn to the decision of this court in the States of Mysore v. Mallappa, AIR 1960 Mys 71, in which it has been laid down that in the Bombay Children Act, 1948 there is no express provision which empowers a Magistrate to try such cases in which the offence is triable only by a court of Session under the Code of Criminal Procedure. That cases proceeded on the basis of the provisions of the Bombay Act and it is unnecessary to enter into a detailed discussion of the same as that Act stands repealed by Section 101 of the Mysore Children Act, 1964.
(16) For the reasons aforesaid, we accept all the four references in so far as the respondents mentioned in each of the cases are concerned and set aside each of the orders. The records in each of the cases stand remitted to the Juvenile Court competent to try the concerned respondent or respondents.
(17) Before parting, we should like to express our appreciation of the useful services rendered by Mr. Mallimath as amicus curiae.
(18) Order accordingly