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The State of Madhya Pradesh Vs. Ramesh Nai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1975CriLJ713
AppellantThe State of Madhya Pradesh
RespondentRamesh Nai and anr.
Cases Referred(The State of M. P. v. Tlamesh Nai and Shivram
Excerpt:
- - (1) where a juvenile court is satisfied on inquiry that a child has committed an offence, then notwithstanding anything to the contrary contained in any other law for the time being in force, the juvenile court mav, if it so thinks fit- (a) allow the child to go home after advice or admonition; (b) direct the child to be released on probation of good conduct and placed under the care of anv parent, guardian or other fit person on such parent, guardian or other fit person executing a bond, with or without surety, as the court may require, for f 9 good behaviour and well being of the child for any period not exceeding three years: provided that the juvenile court, may if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient.....p.k. tare, c.j.1. this order shall govern the disposal of both the cases mentioned above. these are references under section 438 of the code of criminal procedure. 1898, made bv the fourth additional sessions judge, jabalpur, and the fifth additional sessions judge. jabalpur. respectively recommendinp that the committal orders, dated 30-3-1973 and 21-4-1973, passed bv the juvenile court. jabalpur, in criminal case no. 120 of 1972 and criminal case no. 54 of 1973, respectively, committing the respective accused to stand his trial in the sessions court for an alleged offence under section 376, i. p. c, be quashed on the ground that in view of the provisions of the madhya pradesh bal adhiniyam. 1970. a juvenile court alone has the jurisdiction to hold an inquiry and consequently, the.....
Judgment:

P.K. Tare, C.J.

1. This order shall govern the disposal of both the cases mentioned above. These are references under Section 438 of the Code of Criminal Procedure. 1898, made bv the Fourth Additional Sessions Judge, Jabalpur, and the Fifth Additional Sessions Judge. Jabalpur. respectively recommendinp that the committal orders, dated 30-3-1973 and 21-4-1973, passed bv the Juvenile Court. Jabalpur, in Criminal Case No. 120 of 1972 and Criminal Case No. 54 of 1973, respectively, committing the respective accused to stand his trial in the Sessions Court for an alleged offence under Section 376, I. P. C, be quashed on the ground that in view of the provisions of the Madhya Pradesh Bal Adhiniyam. 1970. a Juvenile Court alone has the jurisdiction to hold an inquiry and consequently, the Sessions Court has no jurisdiction to proceed with the trial of the respective accused.

2. In the present case, the two accused, Ramesh and Shivram alias Munna, who are boys aged about 14 and 11 vears respectively, were produced before the Juvenile Court, Jabalpur. presided over bv Kumari Sheela Khanna and Shrimati Bai-pai, Honorary Magistrate, for an alleged offence under Section 376, I. P. C. The prosecution allegation was that on 11-5-1972 at about 2 p.m.. the prosecutrix, Mst. Janak Dulari (P. W. 4) a eirl aaed about 10 vears was plaving in front of her house with other girls. The accused went there and took the prosecutrix in a room and committed rape on her. When the prosecutrix cried, both the accused ran awav. The prosecutrix related the incident to her mother and accordingly, the first-information-report was lodged at the police station on the same day. The defence of the accused was that they had been falsely implicated.

3. In the connected case, namely. Criminal Revision No, 315 of 1973, the prosecution alleged that on 30-12-1972 the prosecutrix, Mst. Bhuribai, a girl aged about 7 vears. had gone to the jungle along with the accused, Onkar, At about 11 a.m. the accused committed a rape on her. The prosecutrix started bleeding. She reported the matter to her mother, Mst. Jeerabai (P. W. 4), who narrated the incident to her husband, Kalansingh, Kalansingh lodged the first-information-report with the Dolice, who carried on the investigation and put up a challan against the accused. The accused was medically examined and the Juvenile Court found his age to be between 14 to 15 years. As such, the Juvenile Court came to the conclusion that the accused was a child. But the Juvenile Court, instead of holding an inquirv against the delinquent child, as required by the Madhya Pradesh Bal Adhiniyam, 1970, committed him to stand his trial in the Sessions Court. When the accused appeared before the Sessions Court, the Additional Sessions Judge expressed the view that the case was exclusively triable bv a Juvenile Court and the Sessions Court had no jurisdiction to hold a trial. Hence these references bv the respective Additional Sessions Judges.

4. The question involved in these references is whether the Juvenile Court has the exclusive jurisdiction to hold an inquirv into the alleged offences bv delinquent children, who at the date of the offence are below the age of 16 vears or whether such delinquent children can be tried for the alleged offence bv the Sessions Court in accordance with the provi-sions of the Code of Criminal Procedure. Before we consider the instant question it is necessary to examine the provisions of the Madhya Pradesh Bal Adhinivam. 1970, and the Madhya Pradesh Bal Nivam, 1971, as also the relevant provisions of the Code of Criminal Procedure 1898, and the provisions of the Code of Criminal Procedure, 1973. as also Article 254 of the Constitution of India, coupled with the Entry in List III, i. e. the concurrent list under Schedule VII of the Constitution.

5. The preamble of the M. P. Bal Adhiniyam, 1970, mentions that it is an Act to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children and for the trial of delinquent children in Madhva Pradesh. Section 2(c) of the Act defines a 'child' to mean a bov or a girl who has not attained the age of sixteen years. 'Delinquent child' is defined bv Section 2(f) of the Act to mean a child who has been found to have committed an offence. Section 2(1) defines a 'Juvenile Court' to mean-

(a) a Court constituted under Section 4: and

(b) where no such Court has been constituted for any area the Court empowered under Sub-section (2) of Section 6;

Section 2 (1) defines an 'offence' to mean an offence punishable under any law for the time being in force, We are not concerned with the other definitions or other provisions relating to establishment of children's home and the care of neglected children. Section 2(p) provides for all words and expressions used but not defined in this Act and defined in the Code of Criminal Procedure. 1898 (Central Act No. 5 of 1898) shall have the meanings assigned to them in that Code. Section 3 provides for continuation of inquiry in respect of child who has ceased to be child. It is as follows:

Where an enquiry has been initiated against a child and during the course of such inquiry he ceased to be a child then notwithstanding anything contained in this Act. or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a child.

Section 4 of the Act provides for constitution of Juvenile Courts. It is as follows:

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Central Act No. 5 of 1898), the State Government may. bv notification, constitute for anv area specified in the notification, one or more Juvenile Courts for exercising the powers and discharging the duties conferred or imposed on such Court in relation to delinquent and neglected children under this Act.

(2) The Juvenile Court shall consist of one or more Magistrates not exceeding three, forming a Bench as the State Government may think fit. to appoint. If the number of Magistrates, is more than one. the State Government shall designate one of them as Senior Magistrate. Every such Bench shall have powers conferred by the Code of Criminal Procedure, 1898 (Central Act No. 5 of 1898). on a Magistrate of the First Class.

Section 5 of the Act is as follows :

(1) In the event of any difference of opinion among the Magistrates of a Juvenile Court, the opinion of the maioritv shall prevail, but where there is no such majority, the opinion of the Senior Magistrate shall prevail.

(2) A Juvenile Court mav act notwithstanding the absence of any Magistrate of the Juvenile Court and no order made by the Juvenile Court shall be invalid bv reason only of the absence of any Magistrate, during any stage of the proceeding.

(3) No person shall be appointed as a Magistrate in the Juvenile Court unless he has in the opinion of the State Government special knowledge of child psychology and child welfare.

Further on Section 6 of the Act provides as under : -

(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 expressly provided in this Act, have power to deal exclusively with all proceedings under this Act, relating to neglected children or delinquent children, as the case mav be.

(2) Where no such Court has been constituted for any area, the powers conferred on the Juvenile Court bv or under this Act shall be exercised in that area by a Magistrate of the First Class.

(3) The powers conferred on the Juvenile Court by or under this Act may also be exercised bv the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.

Further on Section 7 of the Act provides as under:

(1) When any Magistrate not empowered to exercise the powers of a Juvenile Court under this Act is of opinion that a person brought before him under any of the provisions of this Act, (otherwise than for the purpose of giving evidence), is a child, he shall record such opinion and forward the child and record of the proceeding to the Court having jurisdiction over the proceedings.

(2) The Court to which the proceeding is forwarded under Sub-section (1) shall hold the enquirv as if the child had originally been brought before it.

Section 17 of the Act relates to Bail and custody of children. It is as follows:

(1) When any person accused of a bailable or non-bailable offence and apparently a child is arrested or detained or appears or is brought before a Juvenile Court, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Central Act No. 5 of 1898), or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any reputed criminal or expose him to moral danger or that his release would defeat the, ends of justice.

(2) When such person havinc been arrested is not released on bail under Sub-section (1) bv the officer-in-charge of the police station such officer shall cause him to be kept in an observation home in the prescribed manner until he can be brought before a Juvenile Court.

(3) When such person is not released on bail under Sub-section (I) bv the Juvenile Court, it shall, instead of committing him to prison, make an order sending him to an observation home for such period during the pendency of the enquiry regarding him as may be specified in the order.

Section 19 of the Act is as under :

Where a child having been charged with an offence appears or is produced before a Juvenile Court, such Court shall hold enquirv in accordance with the provisions of Section 39 and may subject to provisions of this Act make such orders in relation to the child as it deems fit.

Section 20 of the Act relates to orders that mav be passed regarding delinquent children. It is as under:

(1) Where a Juvenile Court is satisfied on inquiry that a child has committed an offence, then notwithstanding anything to the contrary contained in any other law for the time being in force, the Juvenile Court mav, if it so thinks fit-

(a) allow the child to go home after advice or admonition;

(b) direct the child to be released on probation of good conduct and placed under the care of anv parent, guardian or other fit person on such parent, guardian or other fit person executing a bond, with or without surety, as the Court may require, for f 9 good behaviour and well being of the child for any period not exceeding three years:

(c) make an order directing the child to be sent to a special school:

(i) in the case of a child over twelve years of age for a period of not less than three years:

(ii) in the case of anv other child, for the period until he ceases to be a child;

Provided that the Juvenile Court, may if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do for reasons to be recorded reduce the period of stav, to such period as it. thinks fit;

Provided further that the Juvenile Court may. for reasons to be recorded. extend the period of such stav. but in no case the period of stay shall extend beyond the time when the child attains the age of eighteen years:

(d) order the child to pav a fine if he isf over fourteen years of age and earn* money.

(2) Where an order under clause for or Clause (d) of Sub-section (1) is made, the Juvenile Court mav. if it is of opinion that in the interests of the child and of the public it is expedient so to do in addition, make an order that the delinquent child shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the delinquent child;

Provided that if at anv time afterwards it appears to the Juvenile Court on receiving a report from the probation officer or otherwise, that the delinauent child has not been of good behaviour during the period of supervision it mav after making such enquiry as it deems fit, order the delinquent child to be sent to a special school,(3) The Juvenile Court making & supervision order under Sub-section (2) shall explain to the child and the parent, guardian or other fit person, as the case mav be. under whose care the child has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the-child, the parent, guardian or other fit person as the case mav be, the sureties,, if any, and the probation officer.

(4) In determining the special school, or anv person to whose custody a child' is to be committed or entrusted under this Act, the Court shall pay due regard to the religious denomination of the child to ensure that religious instruction contrary to the religious pursuance of the child s not imparted to him.

Section 22 of the Act is regarding orders that may not be passed against delinquent children.- It is as under;-

(1) Notwithstanding anything to the contrary contained in any other law for the time being in force no delinquent child shall be sentenced to death or imprisonment or committed to prison in de-iault of payment of fine or in default of burnishing security:

Provided that where a child who had attained the age of fourteen vear9 had committed an offence and the Juvenile Court is satisfied that the offence committed is of so serious nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other children in a special school to send him to such special school and that none of the other measures provided under this Act is suitable or sufficient, the Juvenile Court may order the delinquent child to be kept in safe custody in such place and manner as it thinks fit and shall report the case for the orders of the State Government.(2) On receipt of a report from a Juvenile Court under Sub-section (1). the State Government may make such arrangements in respect of the child as it deems proper and mav order such delinquent child to be detained at such place and on such conditions as it thinks fit:Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the child could have been sentenced for the offence committed.

Section 24 of the Act provides that a delinquent child shall not be tried along with an adult accused. It is as under:

(1) Notwithstanding anything contained in Section 239 of the Code of Criminal Procedure, 1898 (Central Act No. 5 of 1898), or in any other law, for the time being in force, no child shall be charged with or tried for. any offence together with a person who is not a child.

(2) If a child is accused of an offence for which under Section 239 of the Code of Criminal Procedure, 1898 (Central Act No. 5 of 1898), or anv other law for the lime beine in force, such child and any person who is not a child would but for the prohibition contained in sub-sec. (1), have been charged and tried together, the Court taking cognizance of that offence shall direct separate trials of the child and other person.

Section 25 of the Act is about removal of disqualification attaching to conviction. It is as under:

Notwithstanding anything contained in anv other law. a child who has committed an offence and has been dealt with under the provisions of this Act. shall not suffer disqualification, if any, attaching to a conviction of an offence under such Law.

Section 26 of the Act makes a special provision in respect of pending cases. It is as under :

Notwithstanding anything contained in this Act, all proceedings in respect of a child pending in any Court in anv area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the child has committed an offence it shall record such finding and, instead of passing any sentence in respect of the child forward the child to the Juvenile Court which shall pass orders in respect of that child in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that the child has committed the offence.

Section 28 of the Act describes persons who mav be present before the Juvenile Court. However, Sub-section (3) of Section 28 of the Act provides that no legal practitioner shall be entitled to appear before a Juvenile Court in anv case or proceeding before it, except with the special permission of that Court.

6. Next, we are concerned with Sections 37, 38 and 39 of the Act, which provide for appeals, revisions and the procedure to be followed. Section 37 of the Act is as under;-

Section 37.- Appeals (1) subiect to the provisions of this section, any person aggrieved by an order made by a Juvenile Court under this Act. mav. within thirty days from the date of such order, prefer an appeal, to the Court of Session:

Provided that the Court of Session mav entertain the appeal after the expiry of the said period of thirty davs if it is satisfied that the appellant was prevented by sufficient cause from films the appeal in time.(2) No appeal shall lie from-

(a) any order of acquittal made bv the Juvenile Court in respect of a child alleged to have committed an offence; or

(b) any order made bv a Juvenile Court in respect of a finding that a person is not neglected child.

(3) No second appeal shall lie from anv order of the Court of Session passed in appeal under this Section.

Section 38 of the Act is as under:

Section 38.- Revisions-The High Court mav at any time, either on its own motion or on an application received in this behalf call for the record of anv oroceedins? in which any Juvenile Court or Court of Session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit;Provided that the High Court shall not pass an order under this section prejudicial to anv person without giving him a reasonable opportunity of being heard.

Section 39 of the Act is as under:

Section 39.-Procedure in inquiries, appeals and revision proceedings.- (1) Save as otherwise expressly provided bv this Act. a Juvenile Court while holding any inquiry under anv of the provisions of this Act. shall follow such procedure as may be prescribed and subject thereto shall follow, as far as may be, the procedure laid down in the Code of Criminal Procedure, 1898 (Central Act No. 5 of 1898), for trials in summons cases.

(2) Save as otherwise expressly provided by Or under this Act the procedure to be followed in hearing appeals or revision proceedings under this Act, shall be as far as practicable in accordance with the provisions of the Code of Criminal Procedure. 1898 (Central Act No. 5 of 1898).

Section 61 of the Act provides that a delinquent child undergoing sentence at the commencement of the Act may be sent to a special school as the State Government may decide. We are concerned with Section 67 of the Act, which is as under:

(1) The Reformatory Schools Act, 1897 (Central Act No. 8 of 1897) and Section 29-B and Section 399 of the Code of Criminal Procedure, 1898 (Central Act No. 5 of 1898), shall cease to apply to any area in which this Act has been brought into force.

(2) The Women's and Children's Institution (Licensing) Act, 1956 (Central Act No. 105 of 1956), shall not apolv to any children's home, special school or observation home established and maintained under this Act.

Section 68 of the Act relates to the rule-making powers of the State Government under which the Madhya Pradesh Bal Nivam. 1971 were framed. Section 69 of the Act relates to repeal of the Madhva Pradesh Children Act, 1928, and the Madhya Pradesh Juvenile Smoking Act. 1929, These are the relevant provisions, with which we are concerned in the present cases.

7. Thus, the intent of the Act is to confer exclusive jurisdiction on the Juvenile Court to hold an inquiry into the cases where a child has committed any offence whatsoever, punishable with fine or imprisonment, or with imprisonment for life or death.

8. As this was an important question affecting the validity or otherwise of a State enactment, we invited three lawyers, namely. Shri Rajendrasingh Advo- cate, Shri S. C. Dutta Advocate and Shri Anoop Choudhary Advocate as amicus curiae. We are thankful to these three gentlemen for the valuable assistance-rendered bv them by arguing cases as. amicus curiae.

9. At this stage we might mention: the fact that a Division Bench of this Court at the Indore Bench, presided over by Verma and Sohani. JJ. in Rupsingh Devjia v. State 1974 MPLJ 341 : 1975 Cri LJ 500 had to consider the instant question. But that was before the coming into force of the Code of Criminal Procedure. 1973. which was so brought into force with effect from 1-4-1974. The Division Bench had to consider the position with reference to the provisions oi the Code of Criminal Procedure, 1398. At an appropriate stage we shall examine the reasoning of the Division Bench. But we may observe that the legal position has considerably changed on account of the coming into force of the new Code of Criminal Procedure, 1973. We mav advert to the relevant provisions of the-new Code of Criminal Procedure, 1/973,-which are as follows:

Section 4.- Trial of offences, under the Indian Penal Code and other laws:

(1) All offences under the Indian-Penal Code (45 of I860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions: hereinafter contained.

(2) All offences under anv other law-shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to anv enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

Section 5 of the New Code is as follows:

Section 5- Saving.- Nothing contained in this Code shall in the absence of a specific provision to the contrary, affect anv special or local law for the time being in force, or any special jurisdiction or power conferred, or anv special form of procedure prescribed, bv anv other law for the time being in force.

10. Thus, Sections 4 and 5 save-the provisions of a special enactment, according to which trials mav be held in a particular manner. But, as regards offences under the Indian Penal Code. Section 4(1) specifically provides that investigation, inquiry and trial shall be in accordance with the provisions of this Code.

11. Next we mav come to Sections 26 and 27 of the new Code, which are as follows:

Section 26- Courts bv which offences are triable- subject to the other provisions of this Code-

(a) any offence under the Indian Penal Code (45 of 1860) may be tried by-

(i) the High Court, or

(ii) the Court of Session, or

(iii) any other Court by which such offence is shown in the First Schedule to be triable:

(b) any offence under anv other law shall, when anv Court is mentioned in this behalf in such law. be tried bv such Court and when no Court is so mentioned, mav be tried by-

(i) the High Court, or

(ii) any other Court bv which such offence is shown in the First Schedule to be triable.

Section 27 of the new Code, with w-hich we shall be verv much concerned, is as follows:

Section 27.- Jurisdiction in the case of juveniles.- Any offence not punishable with death or imprisonment for life, committed bv any person who at the date when he appears or is brought before the Court is under the age of sixteen years. may be tried bv the Court of a Chief Judicial Magistrate, or bv anv Court specially empowered under the Children Act, 1960 (60 of I960) or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.

12. We may observe that Section 27 of the new Code is a new provision and there was altogether a different provision in the Code of Criminal Procedure, 1898, which we shall reproduce here for the sake of convenience. Section 29-B of the 1898 Code was as follows:

Section 29-B.- Anv offence, other than one punishable with death or imprisonment for life, committed bv anv person who at the date when he appears or is brought before the Court is under the age of fifteen years, may be tried bv a District Magistrate or a Chief Presidency Magistrate, or bv anv Magistrate specially empowered bv the State Government to exercise the powers conferred by Section 8. Sub-section (1), of the Reformatory Schools Act, 1897. or in anv area in which the said Act has been wholly or in part repealed bv anv other law providing for the custody, trial or punishment of vouthful offenders, bv anv Magistrate empowered bv or under such law to exercise all or anv of the powers con' ferred thereby.

13. The State Legislatures of all States have from time to time passed Act governing the care, and trial of children; while the Parliament has enacted the Children Act, 1960. which is applicable to the Union territories alone, As such, the State Acts have been left free to operate (in respective States. The Madhva Pra-Sdesh Bal Adhiniyam, 1970. encompasses within its scope all offences including those punishable with death or imprisonment for life, which are exclusively triable by the Court of Session.

14. The relevant provisions of the M. P. Bal Adhiniyam. 1970. and the Code of Criminal Procedure, 1973, have been reproduced above. It is necessary to ascertain if there is anv conflict between, the two. As already observed, the M. P. Bal Adhiniyam, 1970, encompasses within its ambit offences including those punishable with death or imprisonment for life, which shall be triable bv the Juvenile Courts. Presently, we shall examine the implication of Sections 4, 5 and 6 of the said Act in details. But this provision would certainly be contrary to Sections 26 and 27 of the Code of Criminal Procedure, 1973. Section 26(a) of the new Code provides that 'subiect to the other provisions of this Code, any offence under the Indian Penal Code may be tried bv the High Court or the Court of Session or any other Court bv which such offence is shown in the First Schedule to be triable. Therefore, the clear implication is that an offence under the Indian Penal Code can be tried only bv a Magistrate competent to trv it as shown in the First Schedule. On a reference to the First Schedule, it is to be noted that an offence under Section 376. Indian Penal Code is triable by the Court of Session onlv and the sentence awardable is imprisonment for life or imprisonment for 10 years and fine. Section 27 of the new Code clearlv provides that any offence not punishable with death or imprisonment for life committed bv anv person-who at the date when he appears or is brought before the court is under the age1 of sixteen years may be tried bv the Court of a Chief Judicial Magistrate or bv any Court specially empowered under the Childern Act. I960, or anv other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders. Therefore, this section, clearlv excludes offences which are not punishable with death or imprisonment for life and such offences may be tried bv anv Court empowered under any other law for the time being in force. As such, other offences as per this section can certainlv be tried bv the Juvenile Court except the offences punishable with death or imprisonment for life. This is in direct contradiction with the provisions of the M. P. Bal Adhiniyam. 1970. which makes offences punishable with death or imprisonment for life triable bv a Juvenile Court or bv a Court specially empowered under the Children Act. 1960, or bv a Chief Judicial Magistrate. The new Code has deleted Section 29-B of the 1898 Code for obvious reasons as Section 27 of the new Code hag made a different provision in place of the old provision.

15. Section 29-B of the 1898 Code provided that any offence, other than one punishable with death or imprisonment for life, committed bv anv person who at the date when he appears or is brought before the Court is under the age of fifteen years, may be tried bv a District Magistrate or a Chief Presidency Magistrate, or by any Magistrate specially empowered bv the State Government to exercise powers conferred bv Section 8, Sub-section (1) of the Reformatory Schools Act, 1897, or in any area in which the said Act has been wholly or in part repealed bv any other law providing for the custody, trial or punishment of vouth-ful offenders, bv anv Magistrate empowered bv or under such law to exercise all or any of the powers conferred thereby. It mav be that some elements of the old Section 29-B of the 1898 Code mieht be present in Section 27 of the new Code of 1973, but the provisions are altogether different. But the one common thins is that offences punishable with death or imprisonment for life were excluded from the iurisdiction of a Juvenile Court, and that is also the position as per Section 27 of the new Code. At this stage it is necessary to take note of Section 67 of the M. P. Bal Adhinivam, 1970. Sub-section (1) of the said section provides that the Reformatory Schools Act, 1897, and Section 29-B of the Criminal Procedure Code, 1898, shall cease to apply to anv area in which this Act has been brought into force. Thus, where this Act applies, the Reformatory Schools Act, 1897, stands repealed. Similarly. Section 29-B and Section0 399 of the Criminal Procedure Code, 1898, also ceased to apply.

16. The learned Advocate General appearing for the State urged that Section 67 of the M. P. Bal Adhinivam, 1970, is superfluous and it is- by wav of abundant caution and if the Section had not been on the Statute book, the position weuld have remained as the same. We are unable to accept this contention for the simple reason that but for this section, the Reformatory Schools Act, 1897, would not stand repealed and similarly the operation of Section 29-B and Section 399 of the Criminal Procedure Code, d898. would not be suspended and if Section 29-B and Section 399 of the Criminal Procedure Code, 1898, are not excluded, the position would be that Juvenile Courts would be able to trv all offences except those nunishable with death or imprisonment for life. Of course, that is the position again after the new Criminal Procedure Code. 1973. has come into force with effect from 1-4-1974. But as long as the Criminal Procedure Code. 1898, was applicable, it was necessary for the legislature to have enacted the provision like Section 67 of the M. P. Bal Adhiniyam, 1970, in order to encompass within its limits all offences including those punishable with death or imprisonment for life. Section 399 of the Criminal Procedure Code. 1898, provided for confinement of youthful offenders in reformatories. It was as follows :

Section 399. (a)- When anv person under the ase of fifteen years is sentenced bv anv Criminal Court to imprisonment for anv offence, the Court mav direct that such person, instead of being imprisoned in a criminal iail, shall be confined in any reformatory established by the State Government as a fit place for confinement, in which there are means of suitable discipline and of training in some branch of useful industry or which is kept bv a person willing to obey such rules as the State Government prescribes with regard to the discipline and training of persons confined therein.

(2) All persons confined under this section shall be subject to the rules so prescribed.

(3) This section shall not apply to any place in which the Reformatory Schools Act, 1897. is for the time being in force.

Thus youthful offenders below the age of fifteen years could be tried bv the Regular Courts according to Schedule II of the Criminal Procedure Code, 1898, including the offences punishable with death or imprisonment for life. But youthful offenders were committed to the Refor-matorv Schools.

17. The learned Advocate General cited Income-tax Special Purposes Commissioners v. Pemsel (1891) 4 AH ER 28 at p. 59 and Inland Revenue Commissioners v. Dowdell O'Mahonev & Co. Ltd. (1952) 1 AH ER 531. wherein it has been laid down that sometimes provisions on the statute may be superfluous and in that event, the legislature could be presumed to have enacted those provisions bv way of abundant caution. We do not accept the suggestion that Section 67 of the M. P. Bal Adhinivam, 1970, is superfluous. But for suspension of Section 29-B of the Criminal Procedure Code, 1898, the Juvenile Courts, constituted in this Bal Adhinivam could not have tried the offences punishable with death or imprisonment for life. In this view of the matter it is futile to contend that the said section is superfluous and it was enacted bv way of abundant caution. The learned Advocate General adopted a novel argument suggesting that as the said section was superfluous. Section 13 of the Madhva Pradesh General Clauses Act, 1957, or its equivalent, namely, Section 8 of the Central General Clauses Act, 1897. about references to repealed enactments would be attracted. Section 8 of the Central General Clauses Act. 1897, is as under:

Section 8- Construction of the reference to repealed enactments,-(1) Where this Act. or anv Central Act Or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, anv provision of a former enactment, then references in anv other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

Section 13 of the Madhya Pradesh General Clauses Act. 1957, also makes a similar provision. It is as follows:

Section 13.- Construction of references to repealed enactments- Where any Madhva Pradesh Act repeals and re-enacts, with or without notification, any provision of a former enactment, then references in anv other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.

We mav obserye that the applicability of these sections is dependant on the fact whether a different intention appears. In that event Section 8 of the Central Act or Section 13 of the State Act will be inapplicable. The provisions of the repealed enactments and the repealing enactments should be pari materia or more or less analogous. Section 67 of the M. p. Bal Adhiniyam, 1970. had suspended the operation of Section 29-B of the Criminal Procedure Code. 1898. As such, for all purposes Section 29-B was not on the statute book when the M. P. Bal Adhinivam. 1970. became applicable to this State or to any particular area of the State. After the coming into force of the new Criminal Procedure Code, 1973, Section 27 of the Code would be a new provision, although on the lines of Section 29-B of the Criminal Procedure Code, 1898.

18. The suggestion of the learned Advocate General was that in Section 67 of the M. P. Bal Adhiniyam. 1970. we should read words of the repealing enactment, namelv. Section 67 of the Criminal Procedure Code, 1973. We are unable to accept that suggestion for the simple reason that we interpret Section 27 of the new Code to be a provision to the contrary. The Parliament, while enacting the Criminal Procedure Code. 1973, was fully aware of the various State enactments about delinquent children and a specific reference has been made in Sec-i'975 tion 27 of the new Code to the Central Children Act, I960, or any other law for the time being in force, providing for treatment, training and rehabilitation of youthful offenders. The learned Advocate General referred us to the pronouncement of their Lordships of the Supreme Court in State of Puniab v. Sukh Deb Singh Gupta : [1971]1SCR442 . We may observe that Section 8 of the Central General Clauses Act, 1897, as laid down bv their Lordships, would certainly be attracted, provided there is no different intention. In our opinion. Section 27 of the new Criminal Procedure Code, 1973. clearly expresses a different intention to the effect that Juvenile Courts mav try all offences which are not punishable with death or imprisonment for life and commit all delinquent children to childrens' homes. Even if for a moment the suggestion of the learned Advocate General were to be accepted, the position, in our opinion, will not change substantially. The M. P. Bal Adhiniyam. 1970. having received the assent of the President, as required bv Article 254(2) of the Constitution of India could only be saved in case of repugnancy with a Central enactment if the conditions mentioned under the Article were fulfilled. Otherwise in the event of a repugnancy, the matter will be governed bv Sub-clause (I) of Article 254 of the Constitution of India. There is no doubt about repugnancy between Section 6 of the M. P. Bal Adhinivam, 1970, and Section 4, Section 26 and Section 27 of the new Criminal Procedure Code. 1973. inasmuch as the State Act encompasses within its ambit the offences punishable with death or imprisonment for life, which are exclusively triable bv a Sessions Court.

19. Therefore, we may examine the question whether Section 6 of the M. P. Bal Adhinivam, 1970. is saved bv the operation of Article 254(2) of the Constitution of India. For the sake of convenience we mav reproduce Article 254 of the Constitution, which is as follows :

Article 254. (1)- If any provision of a law made bv the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of anv existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made bv Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be. the existing law, shall prevail and the law made bv the Legislature of the State shall, to the extent of the repugnancy, be /oid.

(2) Where *a law made bv the Legislature of a State with, respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made bv the Legislature of such State shall, if it has been reserved for the consideration of the President and has received hig assent, prevail in that State.

Provided that nothing in this clause shall prevent Parliament from enacting at anv time, anv law with respect to the same matter including a law adding to, amending, varying or repealing the law so made bv the Legislature of the State.Sub-clause (2) of the said Article lays down the following tests, namely, a law made bv the Legislature of a State with respect to one of the mattters enumerated in the Concurrent List should contain a provision repugnant to the provisions of an earlier law made by Parliament Or an existing law with respect to that matter, then, the law so made bv the State Legislature is saved, if it has received the assent of the president and in that event, it will prevail over the Central enactment in spite of repugnancy. The proviso clearly mentions that 'nothing in this clause shall prevent Parliament from enacting at anv time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made bv the State Legislature'. Sub-clause (21 of Article 254 of the Constitution would save Section 6 of the M. P. Bal Adhiniyam, 1970, as Ions as Criminal Procedure Code, 1898. was in force. But the said provision of the Constitution would not be applicable to the new Criminal Procedure Code, 1973, which would not be an earlier law made bv the Parliament or an existing law. On the other hand, the matter will be governed by the proviso and in fact, the Parliament did enact Section 26 and Section 27 of the Criminal Procedure Code, 1973. being cognizant of all State enactments with respect to delinquent children. Therefore, if Sub-clause (2) of the said Article ceases to be applicable to the Criminal Procedure Code, 1973. the matter will squarely be governed by Sub-clause (1) of the said Article and in case of repugnancy, the provision of the State Act will be rendered void to the extent of repugnancy, as provided bv Sub-clause (1) of the said Article. At this stage we do not think it necessary tq closely examine the reasoning of the Division Bench of this Court in 1974 MPLJ 341 *> (1975 Cri LJ 500)(supra). That decision was given by the Division Bench when the Criminal Procedure Code. 1898, was applicable. As such, Article 254(2) of the Constitution was attracted and from that point of view. Section 6 of the M. P. Bal Adhiniyam, 1970. prevailed in this State over the provisions qf the Central enactment. But the position is altered after the enactment of the Code of Criminal Procedure. 1973, and in our opinion, now the matter is governed by Sub-clause (1) of Article 254 of the Constitution of India. Therefore, the Division Bench view might have been good law as long as the old Criminal Procedure Code. 1898. was in force. But the position changed after the coming into force of the new Criminal Procedure Code, 1973.

20. As such, there can be no doubt that Section 6 of the M. P. Bal Adhiniyam, 1970, providing for all cases under the Act relating to delinquent children would contravene the provisions of Section 4, Sections 26 and 27 of the Criminal Procedure Code. 1973, which specifically excludes the offences punishable with death or imprisonment for life being tried bv a Juvenile Court. It is true that Section 27 merely mentions the Central Children Act, 1960, and it also saves any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders. We mav observe that Section 27 merely indicates the intention of the legislature, but the provisions of the M. P. Bal Adhiniyam, 1970. would certainly contravene Section 26 of the Criminal Procedure Code, 1973. The said section describes the classes of Courts which could try the particular offences. Clause (a) provides that anv offence under the Indian Penal Code mav be tried by the High Court or the Court of Session, or anv other Court by which such offence is shown in the First Schedule to be triable. The offences punishable with death or imprisonment for life are not triable by the other Court except a Sessions Court and the Magistrate of the First Class duly empowered can only act as a Committal Court. Clause (b) of Section 26 does provide that anv offence under any other law shall, when anv Court is mentioned in this behalf in such law. be tried by such Court and when no Court is so mentioned, may be tried by the High Court, or anv other Court bv which such offence is shown in the First Schedule to be triable. As such, the provisions of Section 4 and Section 6 of the M. P. Bal Adhiniyam, 1970, would certainly contravene Section 26 of the Criminal Procedure Code. 1973. and bv virtue of Article 254(1) of the Constitution of India, the said provisions will be void to the extent of repugnancy.

21. Moreover, Section 4 of the Criminal Procedure Code, 1973, provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained therein and Sub-section (2) provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It is true that Section 5 of the Criminal Procedure Code. 1973. would not affect any special or local law for the time being in force or any special -jurisdiction or power conferred or any special form of procedure prescribed, by any other law for the time being in force. But the provisions of Section 4 and Section 6 of the M. P. Bal Adhiniyam would certainly contravene Section 4 of the Criminal Procedure Code, 1973. and by virtue of Article 254(1) of the Constitution of India, the same would be rendered void to the extent of re-DUgnancy.

22. There is another difficulty created by Section 4(2) of the M. P. BaL Adhiniyam, 1970. It states that the Juvenile Court shall consist of one or more Magistrates not exceeding three, forming a Bench as the State Government may think fit, to appoint. If the number of Magistrate is more than one. the State Government shall designate one of them ag Senior Magistrate. Every such Bench shall have powers conferred by the Code of Criminal Procedure, 1898. on a Magistrate of the First Class. Thus, Section 4 of the M. P. Bal Adhiniyam. 1970. limits the powers of the Bench to those exer-cisable by a Magistrate of First Class. There can be no doubt that a Magistrate of First Class would not be able to try cases Dunishable with death or imprisonment for life, which are exclusively triable by the Court of Session. Instead of this provision if the provision had been otherwise, sav for instance, the State legislature constitutes Juvenile Courts and confers on them all powers, including the power to trv cases exclusively triable bv the Court of Session and if appointments to the Juvenile Courts are made of any person who mav not even be a Magistrate of First Class, the position might be different. It was necessary for the legislature to specifically confer the power on the Juvenile Courts to trv all cases, including those punishable with death or imprisonment for life. But unfortunate-lv the legislature conferred only the powers of a Magistrate of the First Class on all Juvenile Courts, This has created a difficulty and the Juvenile Courts would not be able to exercise powers other than those which are exercisable bv a Magistrate of the First Class under the Criminal Procedure Code, 1898. However, even if we were to read the words 'Criminal Procedure Code. 1973' in place of words 'Criminal Procedure Code. 1898' that would make no difference. For this reason we are of the opinion that Section 4(2) of the M. P. Bal Adhinivam, 1970, being in. contravention of the provisions of the Criminal Procedure Code. 1973, would be void to the extent of repugnancy bv virtue of Article 254(1) of the Constitution of India and for similar reasons Section 6 of the Act would also be void to that extent.

23. During arguments the learned counsel for the respecitve parties cited some cases before us. In the view that we have taken of the matter we feel that considering cases prior to the coming into force of the Criminal Procedure Code, 1973, in which essentially the provision to be considered was the Criminal Procedure Code. 1898, would not be strictly necessary. But we may onlv advert to those cases in general. In Lakhj Sahu v. Emperor AIR 1932 Cal 487 : 33 Cri LJ 645 the Division Bench of the Calcutta High Court was necessarily concerned with Section 29-B of the Criminal Procedure Code. 1898, and in view of that provision it was held that as offence under Section 304, I. P. C. was not triable bv the Magistrate of the Central Children Court, but that the case was liable to be committed to the Sessions Court at Howrah and not to the Session* Division of the High Court.

24. In Damodar Gopal v. Emperor AIR 1942 Bom 341' : (44 Cri LJ 126) a Division Bench of the Bombay High Court was required to consider the provision of Section 5 of the Bombav Children Act, 1924, with reference to Sections 46 and 51 of the said Act. Under that Act the Juvenile Court and the Presidency Magistrates had concurrent jurisdiction to try children under the Bombav Children Act, 1924, and their Lordshios held that the jurisdiction of the Children Court was not exclusive and that other Presidency Magistrates within the area of Bombav Citv could try cases in which children were concerned. We may note that this was a pre-Constitution case and necessarily the provision of Section 29-B of the Criminal Procedure Code, 1898. was in view.

25. Thereafter, the said Act was repealed and the Bombav Children Act, 1948, was enacted. The provisions of that Act came ut> for consideration before P. N. Bhagwati. J. (as he then was) of the Gujarat High, Court in State v. Madhu-bharti Chalabharti (1961) 2 Cri LJ 227 (Guj). Considering the provisions of Sec~ tions 8, 9. 13 and 24 of the said Act, coupled with the provisions of the Criminal Procedure Code. 1898. his Lordship was of the view that & First Class Masis-(trate exercising powers of a Juvenile Court was competent to trv an offence exclusively triable bv a Sessions Court. We may observe that Criminal Procedure Code, 1898. being in force at that time, the Bombay Children Act. 1948. would be an existing law for the urpose of Article 254 of the Constitution and. therefore, the Bombay Children Act, 1948. was saved, although it mieht be repugnant to some other provisions of the old Criminal Procedure Code.

26. In this connection the provisions of the Bombay Children Act, 1948, came up for consideration before a Division Bench of the Mysore High Court in the State of Mysore v. Mallappa Basagouda AIR I960 Mvs 71 : 1960 Cri LJ 493. In that case the Division Bench was of the view that unless there was express provision made to the contrary, in the Bombay Children Act. 1948, the Magistrate acting under the provisions of the Criminal Procedure Code, 1898, was required to commit the offender for trial before the Court of Session, in a case where the offence was triable exclusively bv the Sessions Court. According to the learned Judges, constituting the Division Bench, that Act did not anywhere state that the Magistrate exercising the powers of a Juvenile Court would be competent to try cases, which under the Criminal Procedure Code would be triable only bv a Court of Session. The Division Bench coined that the provisions of Section 13 of the Bombay Children Act, 1948 would not be applicable when there was no trial of cases, but merely an inquiry for the purpose of makine an order of commitment for trial before the Court of Session. Under Section 8 of the Bombay Children Act, 1948, the Court of Session also was competent to exercise the powers conferred by the Act uoon a Juvenile Court. As no separate procedure for inquiry for the purpose of committal for trial before the Court of Session was prescribed bv the Bombay Children Act, 1948, and as the Magistrate was not expressly empowered under that Act to try cases which ordinarily the Court of Session alone would be competent to try. the Magistrate would be bound to commit the juvenile offender to take his trial before the Court of Session. Thus, a contrary view was taken in the said case to the one taken bv the Gujarat High Court.

27. Next, we may refer to a Division Bench decision of the Madras High Court in In Re Anthonv alias Bakthavat-salu AIR 1960 Mad 308 : (1960 Cri LJ 927). In that case the learned Judges constituting the Division Bench held that it was competent for the Juvenile Court to try a case exclusively triable bv the Sessions Court and that it was competent for the State Legislature to enact a provision like the Madras Children Act, 1920, and as such, the power of the Juvenile Court to try such a case would not be taken away on anv ground whatsoever, In that case it was alleged that there wag discrimination and as such, violation of Article 14 of the Constitution of India.

28. In Sessions Judge, Tirunelveli v. Perumal 1974 Cri LJ 261' a Full Bench of the Madras Hiah Court held that the Juvenile Courts established under the Madras Children Act, 1920, had power to try all juvenile offenders for anv offence including those punishable with death or imprisonment for life. Section 29-B of the Criminal Procedure Code, 1898, did not take away the powers of the State Legislature to enact a measure like the Madras Children Act, 1920. In that view it was held that a Juvenile Court was competent to try a child for any offence, including an offence punishable with death or imprisonment for life.

29. We have already pointed out the distinction. All these cases in which the Criminal Procedure Code, 1898 was for consideration would be distinguishable on the ground that the Children Act passed bv a State Legislature before the Constitution would be the existing law and any law passed after the Constitution would be saved if the provisions of Article 254(2) of the Constitution were applicable. Similarly, the Criminal Procedure Code, 1898. would also be a pre-Constitution law and in the case of repugnancy, the provisions of the State enactment would be saved by virtue of Article 254(2) of the Constitution of India, In the view that we take of this matter, we are of the opinion that Section 6 of the Madhya Pradesh Bal Adhiniyam. 1970. is void to the extent of repuenancv with the provisions of Sections 4. 26 and 27 of the Criminal Procedure Code, 1973, and as the former is not saved by virtue of Article 254(2) of the Constitution of India, the said provision is rendered void by virtue of Article 254(1) of the Constitution of India and as a result, the Juvenile Courts constituted under the Madhya Pradesh Bal Adhinivam, 1970. are incompetent to deal with cases involving offences to which the provisions of the Code of Criminal Procedure, 1973. apply and which are exclusively triable by the Court of Session and which are punishable with death or imprisonment for life.

30. As the present cases are governed by the provisions of the Code of Criminal Procedure, 1898 we would accept the references made by the Addi tional Sessions Judges and would hold that the orders of the Juvenile Courts committing the accused to stand their trial in the Sessions Court were erroneous orders. We set aside the orders passed by the Juvenile Courts and direct the Juvenile Courts to try the accused of the offences alleged in accordance with the provisions of the Madhya Pradesh Bal Adhiniyam, 1970.

S.M.N. Raina, J.

31. I agree with My Lord the Chief Justice that these references should be accepted and I also agree with the view expressed by him in regard to the impact of the new Code of Criminal Procedure on the provisions of the Madhya Pradesh Bal Adhiniyam. 1970 (hereinafter referred to as 'the Adhiniyam') I would, however, like to add a few words of my own in regard to these 2 matters.

32. The basic point for consideration so far as these references are concerned is whether a Court of Session is competent to trv a iuvenile offender, that is, an offender below the age of 16 years for offences punishable with death or imprisonment for life in view of the provisions of the Adhiniyam.

33. The Adhiniyam was enacted bv the State Legislature apparently in exercise of its legislative powers under Entries 1, 2 and 5 of the Concurrent List; and since it received the assent of the President, it shall prevail over the corresponding provisions of the old Code of Criminal Procedure (hereinafter referred to as 'the old Code') under Article 254 of the Constitution. It is, therefore, auite clear that the State legislature was competent to confer exclusive iurisdiction on Juvenile Courts constituted under the Adhinivam in respect of offences committed bv iuvenile offenders to the exclusion of the Court of Session or any other Criminal Court. But the question whether this has actually been done ha9 presented considerable difficulty because of the loose, and unhappy drafting of the Adhinivam.

34. The Adhiniyam appears to have been drafted taking the Children Act, i960 as its model without application of an independent mind, as there are certain anomalies in both the enactments which create a patent difficulty in the matter of construction, I shall point out the difficulties with reference to the provisions of the Adhiniyam.

35. Sub-section (2) of Section 4 of the Adhiniyam provides that the Juvenile Court shall have the powers of a Magistrate First Class under the Code of Criminal Procedure. This sub-section corresponds to Sub-section (2) of Section 5 of the Children Act. I find it difficult to understand why the legislature thought it fit to invest the Juvenile Court with the powers of a Magistrate First Class if it was intended that it should be competent to try offences which are not triable bv a Magistrate First Class under the Code of Criminal Procedure.

Sub-section flj of Section 6 cm ?he Adhiniyam, which corresponds to (subsection (1) of Section 7 of the Children Act, no doubt provides that the Juvenile Court shall have Power to deal exclusively with all proceedings under the Act relating to neglected children or delinquent children, notwithstanding anything contained in any other law for the time being in force; but the expression 'proceedings under this Act' has to be construed in the light of other provisions of the Adhiniyam, particularly in view of the savins clause in the said sub-section to the following effect:

but save as otherwise expressly pro-. vided in this Act

In view of the said clause, it can be said that Section 4 of the Adhiniyam controls Section 6 and the proceeding contemplated by Section 6 in regard to inquirv or trial of an offence is one which is within the competence of a Magistrate First Class under the Code of Criminal Procedure.

36, We mav point out in this connection that the provisions of the Bombay Children Act, 1948 are very clear and do not create anv such difficulty in determining whether a Juvenile Court is competent to hold an inquiry into offences punishable with death or imprisonment for life, particularly in view of the provisions of Section 9 thereof, which is re* produced below:

Save as otherwise provided in this Act:

(1) Where a Juvenile Court has been established for any local area, such Court shall try all cases in which a child ia charged with the commission of an of* fence 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 Part VI of this Act.

(2) Where a Juvenile Court has not been established for any local area, no Court other than Courts empowered under Section 8 to exercise the powers of a Juvenile Court shall have power to try any case in which a child is charged with the commission of an offence or to deal; with or dispose of anv other proceeding under this Act.

There appears to be no provision in the Bombay Act conferring the powers o' a Magistrate First Class on a Juvenile Court and thus limiting its Dowers to that of a Magistrate First Class under the Code.

37. Even though the provisions of Section 4 of the Adhinivam rugce^t feat the powers of a Juvenile Court are limited to those of a Magistrate Fiiei Class under the Code of Criminal there are other provisions which Point fctf a difffferent conclusion. Section 19 era-powers a Juvenile Court to hold an en (jjuiirv into an offence with which a child charged without any restrictions; and awtion 20 empowers it to Pass certain orders specified therein. Section 22 appears to make a provision how a child (juvenile offender) shall be dealt with where he is found guilty qf an offence punishable with death or imprisonment jbr life. It further appears from this .section that the Adhiniyam does not contemplate trial of a child for an offence punishable with death or imprisonment tor life by ,i Court of Session or anv Criminal Court other than a Juvenile Court.-Thua, reading Sections 19, 20 and 22 together, it would appear that a Juvenile Court is competent to deal with a child offender even though the offence may be punishable with death or imprisonment for life.

38. I. however, fail to understand why it was necessary to enact Section 24 of the Adhiniyam, if it was intended that a Juvenile Court alone was competent to try a diild for all offences. There can be no doubt that a Juvenile Court is not competent to trv an adult; so no auestion of a joint trial of a child and an adult offender can arise before a Juvenile Court. Similarly, since the Court of Session or any other Criminal Court is not competent to try a child, there can be no question of a joint trial of a child with an adult offender in such a Court. The learned Advocate General conceded that this provision appears to be redundant but he submitted that it seems to have been made out of abundant caution.

39. Section 26. which deals withi cases pendins at the commencement of the Adhiniyam. Provides that the proceedings in such cases shall be continued as if the Adhiniyam had not been passed and if the Court finds that the child has committed an offence, it shall record such finding and, instead of passing any sentence forward the child to the Juvenile Court for orders under the Adhiniyam. This clearly indicates that the intention of the legislature was that a Juvenile Court alone should be competent to deal with a child in respect of all offences. The provisions for appeal and revision contained in Sections 37 and 38 of the Adhiniyam also indicate that they contemplate orders of acquittal as well as orders in pursuance of a finding of guilt in regard to all offences committed bv a child, of a Juvenile Court. There is no provision in the Adhiniyam regarding an appeal or revision from an order of conviction or acquittal in regard to a child bv a Court other than a Juvenile Court. The Adhiniyam also contemplates that the Juvenile Court shall follow that prescribed procedure; and it also makes provision for the sittings of Juvenile Courts under Sections 27 to 30 thereof while holding an enquiry into an offence committed bv a child. These provisions would not be applicable to a Court of Session or any other Criminal Court if it were to try a child and thus the very obiect of the Adhiniyam would be frustrated which, as indicated in the preamble, is to provide for the trial of delinquent children, apparently for all offences.

40. Thus, although the language of 6ome of the provisions is involved and the entire scheme is not free from defects as pointed out above, it appears to me. after carefully considering all the provisions in the Adhiniyam and making an attempt to construe them harmoniously, that the scheme of the Act is that a Juvenile Court alone should be competent to hold an enquiry into all offences committed by a child and to pass final orders as provided in Section 20 and other provisions thereof. A similar view has been expressed bv a Division Bench of this Court in 1974 MPLJ 341 = fl'975 Cri LJ 500). On this view, both these references must be accepted and the cases should be remitted to the Juvenile Court to deal with the offenders according to law as proi posed bv mv Lord the Chief Justice. .

41. Another important Question which, though does not arise in these cases, was raised at the hearing. The question is how far the provisions of the Adhiniyam are affected bv the provisions of the new Code of Criminal Procedure which came into force on the 1st of April, 1974. This question has been extensively considered by Mv Lord the Chief Justice in paragraphs 10 to 21' of the order. There can be no doubt that since the new Code has been enacted bv the Parliament in exercise of its legislative powers under Entries 1. 2 and 5 of the Concurrent List, the provisions of the Code shall supersede the provisions of the Adhinivam. which is an earlier enactment, under Clause (1) of Article 254 of the Constitution.

42. Section 4 of the new Code provides that all offences under the Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code. Section 5, no doubt, makes a savins in respect of anv special or local law; but it is subject to anv provisions to the contrary. The provisions to the contrary are Sections 26 and 27. Section 26 provides bv which Courts particular offences shall be triable. Section 27 deals specifically with the question of jurisdiction in the case of juveniles; and it provides that an offence not punishable with death or imprisonment for life committed bv a Person, under the age of sixteen years may be tried by the Court of Chief Judicial Magistrate or any Court specially empowered under the Children Act. 1960 or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders. The expression 'any other law for the time being in force...............' in Section 27 clearly covers the Adhiniyam. and it must be presumed that this section was enacted keeping in view the provisions of the Adhiniyam. The expression 'anv Court speciallv empowered' in the said section covers a Juvenile Court under the Adhiniyam. It would, therefore, appear that it was clearly the intention of the Parliament in enacting Section 27 that after the enactment of the Code, a Juvenile Court would be competent to trv a person under the age of sixteen years only for such offences which are not punishable with death or imprisonment for life.

43. The learned Advocate General, relying on Section 13 of the Madhya Pradesh General Clauses Act. 1957. contended that in view of Section 77 of the Adhiniyam under which Section 29-B and Section 299 of the Code of Criminal Procedure. 1898 have been made inapplicable to any area in which the Adhinivam is brought into force. Section 27 of the new Code shall also be inapplicable to any such area because it corresponds to Section 29-B of the old Code. I do not find any merit in this contention because the provisions of the Adhinivam cannot be so construed as to fetter the legislative powers of the Parliament under the Concurrent List. Since the new Code is a later enactment by the Parliament in exercise of its legislative powers under Entries 1, 2 and 5 of the Concurrent List, the provisions thereof will supersede the provisions of the Adhiniyam under Clause (1) of Article 254 of the Constitution.

44. I, therefore, agree with My Lord the Chief Justice that Section 27 of the new Code takes away the power of the Juvenile Court to try a child for an offence punishable with death or imprisonment for life and that the trial for such offences hereafter will have to be held by the Court of Session in accordance with the provisions of the new Code of Criminal Procedure keeping, however, in view the provisions of the Adhiniyam in so far they relate to punishment and other matters not inconsistent with the provisions of the new Code.

M.L. Malik, J.

45. I have had the advantage of reading the draft judgments prepared bv Hon'ble the Chief Justice and brother Raina, J. Though in conclusion I agree that the two references should be accepted and the Juvenile Court should be directed to hold an enauiry as contemplated by the Bal Adhiniyam, 1970. my reasons for the conclusion are a little different. I am also taking a different view as regards the effect of Section 27 of the new Code of Criminal Procedure (Act No. 2 of 1974) on the jurisdiction of the Juvenile Court constituted under the Bal Adhiniyam. I must, therefore add a few lines of my own.

46. I need not narrate the circumstances under which the references came to be made, Hon'ble the Chief Justice has succinctly stated them in his judgment. Jo begin with the arguments straight, the nrst argument is that the purpose of the Bal Adhiniyam is not to punish the delinquent child but to detain him, at worst, in an institution which provides for treatment, training and rehabilitation. The idea is to reclaim him to the society, keep him away from the profane effect of the hardened criminals and prepare him for the path of rectitude. It is argued that the child is not produced before the Juvenile Court for a trial but for an enquiry; and the enquiry is conducted in an atmosphere bereft of awe and authority, clanking shackles of the prisoners and the harsh sounding tread of the Constables. Even a lawyer's entry is forbidden except with express permission of the Court. Behind the legislation is the idealistic view that in such a filial atmosphere, the delinquent child would narrate the incident more truthfully and confide in the Judge all his private and psychic reasons which led him to the commission of the crime. In turn, there is an assurance given to him that no stigma of a crime shall attach to him.

47. But reading the provision a little more carefully, though at most places, the expression used is 'enquiry' and not 'trial', the entire process is one of trial in the real sense when the Juvenile Court must find the child guilty of the offence before he is committed to the institution for detention and training. One may not call such detention a punishment in the sense it is said in Section 53 of the Indian Penal Code; all the same it is punishment inasmuch as he is drifted from his familiar and homely atmosphere to an authoritative habituation which may, for ought we know, turn him into a puppet of his manipulators by constant invasion of his personality or induct him into habits which may not prove serviceable when he comes out in a free atmosphere. That will depend on how he had been dealt with and whether the enforced routine had been replaced progressively by free choice.

48. Without meaning criticism to the reformatory policy. I would like to quote 'Peterson on Prison' wherein the author contrasted three typea of Influence which might be brought to bear on an offender bv the Borstal system. Ha savs, t'~3 first treats him as a lurno of hard material, to be hammered into shape, and in the process, he is liable to receive internal injuries. It may arouse fierce resentment and resistance and may leave. She offender more antisocial than ever. Th* second regards him as a lumD of putty, to be kneaded gently and gradually into shape. The danger is that when he leaves orison, he will still respond like putty to whatever pressure he may encounter. Character is determined ultimately, not by the outward shape which has been r&fashioned.; but bv the powers within which may not have been touched. The third regards him as a living organism 'having its secret of life and motive power within'. It recognizes that any permanent organic change requires his own personal co-operation. It seeks neither to break nor to kneo.d him into shape, but to stimulate some power within to regulate conduct aright, and so to stimulate and inspire and to touch the deep springs of action to make him want to use his life well, so that he himself and not others will save him from waste.

49. The third course is vastly preferable. The rules framed under the Bal Adhiniyam are more towards the direction of the third course. We hope the prison system of special schools succeeds in achieving the object.

50. To revert to the subject, in whatever garb the process of finding the Ruilt in the child is put, be it all called an 'enquiry' or 'trial', the object is to put the delinquent child to some restraint in an authoritative habituation and that is punishment; vou may happily call it a reformative one where the State stands to the delinquent in loco parentis. where his wickedness is treated as a mental disease and where the punishment is given in such form that it is supposed to act aa moral medicine, unpalatable but wholesome.

51. The word 'trial' has not been defined in the Code of Criminal Procedure (Act V of 1898), but the general meaning of the term, as Mukherji. J. puts it in Harihar Sinha v. Emperor AIR 1936 Cal 356 : 37 Cri LJ 758 is this:

The fundamental conception of the trial is the determination of the guilt or Innocence of the person who is tried and It can end onlv in one or other of the recognised forms-conviction, acquittal, dis-i charge (i. e.) finding him euilty or not guilty or finding that there is no case against him or that the charge is firound-ies:,

Tn Basil Ranger Lawrence v, Em- AIR 1933 PC 218 : (34 Cri LJ 886) the trial was held to mean the whole proceedings conducted in the presence of the accused for an indictable offence including the sentence.

The expression 'enquiry' or 'trial' wherever used must then be considered with regard to the particular context in which it is used and with regard to the scheme and purpose of the provision under consideration.

52. Reference mav be made to the provisions of Sections 20(1)(b) and 21, wherein the Juvenile Court is authorised to impose fine on the delinquent child over the age of 14 who earns monev. or on his parents when the child is below 14 and the offence is one punishable with fine. The provisions of Section 22 are a little too drastic. Juvenile offender can be. detained for a period as lone as the maximum prescribed for the offence bv the State Government where, bv his conduct and behaviour, it is unsafe to keen him in special School. To say then that the child offender is not punished for any offence, is something incongruous to the generally accepted principles of criminal law.

53. I am. therefore, in no doubt whatsoever that the delinquent child is produced before the Juvenile Court for a trial and the order that is Dassed under Section 20 of the Act, upon satisfaction of the guilt, is a punishment. It is quite a different matter that under Section 25 of the Act, the delinquent child has not to suffer any disqualification on account of his conviction.

54. The argument on the one hand proceeded thus: Since the Juvenile Court was holding no trial against the delinquent child but onlv an enauirv into his delinquency, the question of committing him for trial before the Sessions Judge, for which there was no express provision made, would not arise. It is only when a trial was contemplated that the committal proceedings could be entertained. The Act. the learned counsel say, impliedly forbade a trial of a Juvenile offender by making use of the expression 'enquiry' wherever necessarv in the context.

55. The argument on the other hand was that the Juvenile Court was a Bench conferred with powers of a Magistrate First Class and, therefore, unless the contrary intention appeared in the provision of the Act, the Bench could hold an enquiry for the purposes of the commitment under Chapter XVIII of the Code and the Sessions- Court could exercise the powers of a Juvenile Court under Section 6(3) of the Bal Adhiniyam when the case came to it by commitment. Section 6(3) of the Act reads as under:

The powers conferred on the Juvenile Court bv or under this Act mav also be exercised bv the High Court and the Court of Sessions, when the proceeding comes before them in appeal, revision or otherwise.

The expression 'or otherwise' in Section 6(3). it was contended, could include proceedings coming before the Court bv commitment. The rule of 'Eiusdem Gene--ris'. the counsel said, mav not be applied too strictly, in the sense that, the proceedings coming before the High Court or the Sessions Court should be akin to the proceedings of appeal or revision and belonging to the same category or kind. The jurisdiction of trial (on commitment) by the Sessions Court, was the well accepted rule and the Court had, in its general jurisdiction, powers of trial of offences punishable with death and imprisonment for life. The expression 'or otherwise' would, he said, presumably, include the iurisdiction to trv (unless such a iurisdiction is expressly taken away) a Juvenile offender when he came before the Sessions Court bv commitment. It would be incongruous to hold that the Sessions Court could exercise the powers of 'Juvenile Court' while hearing an appeal and not when the Droceedinas came before it by commitment.

56. The provisions-, in our view, have to be read in their proper seauence to resolve the confusion. Under the Code of Criminal Procedure (Section 6), the Criminal Courts have been placed in seven categories: (i) The High Court, (ii) Court constituted under any law other than the Code, (iii) Court of Sessions, (iy) Presidency Magistrate, (v) Magistrate First Class, (vi) Magistrate Second Class and (yii) Magistrate Third Class. The Juvenile Court as such comes in the second category. It is a Court constituted under any law, other than the Code, and. therefore Section 4(1) of the Bal Adhi-niyam reads as below:

Section 4 (1): 'Notwithstandnig anything contained in the Code of Criminal Procedure. 1898 (Central Act No. 5 of 1898). the State Government i lav. by notification, constitute for anv area specified in the notification, one or more Juvenile Courts for exercising the powers and discharging the duties conferred or imposed on such Court in relation to delinquent and neglected children under this Act.

The Juvenile Court, the legislators in their wisdom thought, should be a Bench consisting of members who Dossessed insight into the child psychology and thai thev should individually and collectively give their attention more to the offender than to the offence; nonetheless to assume jurisdiction over him they must first find him suiltv of a crime. *Ths provisions of the Code of Criminal Procedure relating to constitution of the Benches (i. e. Sections 15 and 1'6) were, therefore, in mind of the legislators. Section 4(2) of the Bal Adhiniyam is a step in conformity with Section 15 of the Code empowering the State Government to ere? la a Bench with the powers conferred m conferrable bv or under the Code, on a Magistrate First Class. Section 4(2) reads as under;

Section 4(2): The Juvenile Court shall consist of one or more Magistrates not exceeding three, forming a Bench as the State Government mav think fit. to appoint. If the number of Magistrates is more than one, the State Government shall designate one of them as Senior Magistrate. Every such Bench shall have powers conferred by the Code of Criminal Procedure, 1898 (Central Act No, f, of 1898). on a Magistrate of the First Class.

57. A distinction must always be borne in mind that conferral of powers of a Magistrate is not the same thins? as jurisdiction of a Magistrate to take cognize ance of the offences. Conferral of powers would invest the Magistrate with ordinary powers specified in the third schedule as provided in Section 36 of the Code. For investment of jurisdiction insofar as Magistrates are concerned, one has to refer to the provisions of Sections 12. 28, 32 and 190 of the Code. It is the State Government or the District Magistrate. Subject to the control of the State Government, who defines the local area within which the Magistrate has to exercise all or anv of the powers, and empowers the Magistrate to take cognizance upon ' complaint or upon a police report of ar-y offence which he mav trv or commit fct* trial. Investment of powers of a Magistrate on a person, does not by itself clothe him with inherent jurisdiction to take cognizance of offences and try them.

58. The provisions in respect of tt Bench under Section 15 of the Code are all the more stringent. After the Bench is invested with powers of a Magistrate, the State Government has further to direct it to exercise such powers in such cases or such classes of cases only, within such local limits ag the State Government mav think fit. Unless a direction as to the cases or classes of cases, is given. the Bench, though invested with powers, would be without jurisdiction to try any case. Section 16 of the Code empowers the State Government to frame rules for the guidance of the Benches, its particular on the following subjects j

(a) The Classes of cssws ta be tried:

(b) The time and place of sitting;

(c) The constitution of the Bench for conducting trials* and ___

(d) The mode of settling differences of opinion which may arise between the Magistrates in session.

Section 5 of the Bal Adhiniyam meets with the requirements of procedure, contemplated bv Section 16 of the Code.

59. As to the classes of cases which the Bench (Juvenile Court) has been empowered to try, reference has to be made to Section 6 of the Bal Adhiniyam. The section reads as under:

Section 6 (i) 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 expressly provided in this Act, have power to deal exclusively with all proceedings under this Act, relating to neglected children or delinquent children, as the case may be.

(2) Where no such Court has been constituted for anv area, the powers conferred on the Juvenile Court by or under this Act shall be exercised in that area by a Magistrate of the First Class.

(3) The powers conferred on the Juvenile Court bv or under this Act may also be exercised bv the High Court and the Court of Sessions, when the proceeding comes before them in appeal, revision or otherwise.

The emphasis is on the word 'exclusively' used in Section 6(1). The Juvenile Court hag been given exclusive iurisdiction to deal with all proceedings relating to delinquent children, notwithstanding anything contained in anv other law for the time being in force, but subject however to the express provisions of the Act. The definition of the words 'offence' and 'delinquent child' are without limitation. The offences punishable with death or imprisonment for life have not been excluded. If the legislators contemplated exclusion of such offences from trial bv the Juvenile Court, thev would have expressly said so. They would have made provision for commitment to and trial by Sessions Court though prescribing a different procedure. That has not been done, Hon'ble the Chief Justice and brother Raina, J. have dealt with all the relevant provisions of the Act indicating that the Juvenile Court is vested with the exclusive iurisdiction to deal with delinquent children. I would refrain from traversing the field covered by them. An earlier Division Bench decision of this Court in 1974 MPLJ 34l : (1975 Cri LJ 500) has also elaborately dwelt on the topic.

60. I need onlv refer to Section 6 r(3) and Section 37 of the Act which point to the solution. If the Sessions Court re- tained the original iurisdiction. Section 6(3) would have read differently. Instead of proceedings before the (High Court or) the Sessions Court coming in 'appeal, revision or otherwise', the expression would have been: 'proceedings coming before the Sessions Court originally or in appeal, revision or otherwise'. The conspicuous omission of a reference to the original iurisdiction of the Sessions Court is significant. In the Bombay and Madras Children Act. powers of a Juvenile Court have been conferred on the Sessions Court trying any case originally or hearing an appeal or revision. These Acts presumably were in the mind of the draftsman when he drafted the Bal Adhiniyam.

61. Section 37 of the Bal Adhiniyam gives a still better clue. There is an appeal provided against an order made by the Juvenile Court to the Sessions Court. If the Bal Adhiniyam contemplated an original trial bv the Sessions Court, an appeal should necessarily have been provided to the High Court or it should have been expressly stated that against the original order made bv the Sessions Judge, the remedy was only a revision to the High Court and not an appeal.

62. We are dealing with a subject covered by special law. Jurisdiction to try an offence is not the same thing as iurisdiction to try an offender. Offenders of a particular class can be excluded from the normal jurisdiction of a Court and can be placed for trial under special jurisdiction of a special Court. Once that is done, one must look to the special Act providing for special procedure. The Court exercising powers under the special Act, exercises a special iurisdiction and not the ordinary jurisdiction attributed to it under the Code of Criminal Procedure. No comparison between one Criminal Court and another, could be made when one Court exercised iurisdiction conferred by the Code and the other exercised jurisdiction conferred bv some other law. Confusion is bound to arise when the Juvenile Court, simply for the reason that ordinary Dowers of a Magistrate First Class are conferred on it, is to be treated as a Court possessinc ordinary iurisdiction. limited to the trial of those cases only as are shown in Schedule II. If special powers or special iurisdiction is conferred on a Magistrate First Class, he must exercise those powers or that iurisdiction under the special law.

63. Reading Sections 1(2), 5(2) and 29(1) of the Criminal Procedure Code together, the conclusion is inevitable that the Juvenile Court is a special Court constituted under a special Act promulgated for dealing with delinquent children, and the prosecution must follow in accordance with the special procedure provided therein. If the Court has been given enlarged powers, they are referrable to the special Act and not to the Code. Reference to Schedule II of the Code to limit the jurisdiction of the Juvenile Court would be out of place. It follows, therefore, that the Juvenile Court constituted under Section 4 of the Bal Adhiniyam, could try anv offence whatsoever, including an offence punishable with death or imprisonment for life.

64. We incidentally considered the effect of the New Code of Criminal Procedure (Act No. 2 of 1974) on the jurisdiction of the Juvenile Court constituted under the Bal Adhiniyam. The present references, however, are governed bv the old Code. Section 484 of the New Code saves the proceedings from the operation of the new procedural law and requires the matter to be disposed of in accordance with the provisions of the Code of Criminal Procedure. 1898 (Act 5 of 1898). But anticipating that the conflict may arise in very near future on account of Section 27 of the New Code which has replaced in a modified form Section 29-B of the old Code, we thought it advisable to fio into that question and resolve it.

65. Hon'ble the Chief Justice and brother Raina, J. are of the view that Section 29-B of the old Code is not bodily lifted as it was. and placed in the New Code as Section 27, and since the modifications made are on vital aspects, Section 8 of the Central General Clauses Act would not be attracted and the Bal Adhiniyam could not be construed with reference to the provision re-enacted wherever reference to Section 29-B was made in it. In their Lordships' view. Section 27 of the Code would restrict the jurisdiction of the Juvenile Court and all such Courts trying juvenile offenders below the afie of 16, to trial of offences other than those punishable with death or imprisonment for life. Their Lordships observe that the legislators had in view the special laws prevailing in different States and the enlarged jurisdiction which those special laws had conferred on Juvenile Courts, and vet Section 27 of the Code did not reserve to them their enlarged powers. Instead. Section 27 serves to limit their operation. The offences punishable with death or imprisonment for life have been kept beyond their ambit.

66. I regret. I am inclined to take a different view and I draw inspiration for that view from the Full Bench decision of the Madras High Court reported in 1974 Cri LJ 261. The Madras Children Act was of the year 1920. Section 29-B was inserted in the Code of Criminal Procedure by the amendment Act of 1923. The question that fell for consideration was whether Section 29-B circumscribed the jurisdiction of the Juvenile Court to cases other than those punishable with death or life imprisonment. Their Lordships considered Section 29-B of the Code as an enabling provision. It enabled the Magistrates referred to in that section, to deal with many cases which, apart from that section, could only be tried bv a Court of Session. As an illustration, their Lordships quoted an offence of Section 312, I. P. C. which was exclusively triable by the Court of Session though punishable with imprisonment of three years ordinarily, but of seven years- if the woman was quick with child. The offence in view of Section 29-B of the Code, could be tried by a Magistrate referred to in the section, if it was committed by a person below the age of fifteen.

67. As regards the impact of Section 29B of the Code on the Madras Children Act. this is what their Lordships said;

The question, however, is whether Section 29-B of the Code of Criminal Procedure should be construed not merely as an enabling provision, but also as a provision which bv necessary implication meant that in respect of an offence ounish-able with death or transportation for life it repealed the provisions of the earliep Act, the Madras Children Act, 1920; in other words, whether it means that in respect of an offence punishable with death or transportation for life even the Juvenile Court constituted under Section 36 (1) of the Act could no longer try such offences even though prior to the enactment of Section 29-B of the Code of Criminal Procedure the Juvenile Court could have tried any offence whatsoever. Stated this way. it seems to me that there could be only one answer that Section 29-B of the Code of Criminal Procedure could not possibly be construed in anv such manner. If it was meant to have any such repealing effect, it should have been specially stated. Certainly the law does not favour an implied repeal. See for instanc iha decision in Ramchandra Misra v. president, District Board, Ganjam : AIR1951Ori1 the deepens cited therein, and the passage from Maxwell quoted there:

Repeal by implication is not favoured....It is a reasonable presumption that the Legislature did not w- tend to keep reallv contradictors enactments on the statute book or, en the other hand, to effect so important a measure as the repeal of a law without eKwessint? an intention to do so. Such an interpretation, therefore, is not to be adopted unless it be inevitable. .Aav reasonableconstruction which offers an escape from it is more likely to be in consonance with the real intention. (Maxwell on Interpretation of Statutes. 9th Edition. P. 173)

Similarly in Maxwell, Twlfth Edition, at page 191' is stated:A later statute mav repeal an earlier one either expressly or by implication. But repeal by implication is not favoured bv the Courts....If therefore, earlier and later statutes can reasonably be construed in such a wav that both can be given effect to. this must be done.

A good deal of reference has been made to an earlier decision in AIR 1960 Mad 308 - (I960 Cri LJ 927) and this is what the authority says in Para. 8:

This iuxtaposition of Section 1(2), Criminal P. C. and Section 6. Criminal P. C. taken along with the Government of India Act, 1919, and the schedules thereto, clearly imply that the State Legislature had power to make a law for establishing juvenile Courts to try all Juveniles, accused of any offence whatsoever. Hence. Section 29-B does not take awav the power of the State Legislature to enact a measure like the Madras Children Act (Act IV of 1920). The power of the Juvenile Court to try all juvenile offenders for any offence, including murder, is therefore incontrovertible. The learned, Advocate General has sought to further sustain this argument upon the authority of Lakhi Narayan Das v. Province of Bihar 1949 FCR 693 at p. 708 : AIR 1950 FC 59 at pp. 64. 65 : 51 Cri LJ 921' at p. 926. The learned Judses observed therein:The concurrent List is not a forbidden field to Provincial Legislature, and the mere fact that the Provincial Legislature has legislated on any matter in the Concurrent List is not enough to attract the mischief of Section 107 of the Government of India Act....Section 1(2) of the Criminal Procedure Code expressly lavs down that the provisions of the Code would not affect anv special form of procedure prescribed bv anv law for the time being in force.

68. The position is not different in the New Code. Section 5 of the New Code corresponds to Section 1(2) of the old Code and Section 6 of the New Code corresponds to the Section 6 of the old Code. The iuxtaposition brought out the same result ag is mentioned in the passage auot-ed above. Section 5 of the New Code will save the jurisdiction of the special Court functioning under the special law. And in mv view, this section overrides Section 27 of the Code; if at all Section 27 evinces a contrary intention and, therefore, limits the jurisdiction of the Juvenile Court to offences other than punishable with death or life imprisonment.

69. The question to ask is whether a contrary intention is in fact evinced by Section 27 of the New Code and whether it could be construed as a specified provision to the contrary within the meaning of Section 5 of the Code. Mv answer is in the negative. I will call in aid 'Maxwell on the Interpretation of Statutes'. On Presumptions regarding jurisdiction, the author savsj (XII Edition at page 153):

A strong leaning exists against construing a statute so as to oust, or restrict the jurisdiction of the superior Courts....The well known rule is that a statute should not be construed as taking away the jurisdiction of the Courts in the absence of clear and unambiguous language to that effect.

The second principle that must be recalled is that a prior particular or special law should not be readily held to be im-pliedly repealed by later general enactment.

To quote the words of Lord Philli-more:

It is a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law, expressed in general terms and bv the apparent generality of its language applicable to and covering a number of cases of which the particular law is but one. This as- a matter of jurisprudence, as understood in England, has been laid down in a number of cases, whether the prior law be an express statute, or be the underlying common or customary law of the country. Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with bv earlier legislation that earlier and special legislation is not to be held indirectly repealed, altered, or derogated from merely bv force of such general words, without any indication of a particular intention to do so.' Nicolle v. Nicolle (1922) 1' AC 284 at P. 290 (PC).

The third principle is that where the two enactments are affirmative and enabling, the question of inconsistency mam not arise. 'The fact that jurisdiction is conferred on one authority does not necessarily take away jurisdiction which another already possesses in the same matter.' ('Maxwell on the Interpretation of Statutes', 12th Edition, at p. 155).

The fourth principle is that one affirmative enactment is not easily taken as repealed by another later affirmative enactment. An attempt should always be made to reconcile the two enactments.

70. Their Lordships of the Supreme Court have very lucidly explained the law on Repeal bv implication, in Municipal Council. Palai v. T. J. Joseph AIR 1973 SC 1561. The question that arose for their Lordships' consideration wag whether Travancore District Municipalities Act which conferred powers on the Municipal Council under Sections 286 and 287 to construct and provide for public landing places was repealed bv the Travancore Cochin Motor Vehicles Act fa later general enactment) which made a provision whereunder the Government or any authority authorised by the Government, in consultation with the local authority, could determine the places for vehicles to stand. Their Lordships read the provision in the general Act to be one in continuity with the provisions of the local Act and said that the two sets of provisions being enabling ones could co-exist. I need only cite a passage from the iudg-ment (though in fact, the whole authority should be read for its rich expression of the principles):

It is undoubtedly true that the legislature can exercise the power of repeal bv implication. But it is an eauallv well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislature. Of course, this presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together. As has been observed bv Crawford on Statutorv Construction: P. 631. para. 311.

There must be what is often called such a positive repugnancy between the two provisions of the old and the new statutes that thev cannot be reconciled and made to stand together. In other words they must be absolutely repugnant or irreconcilable. Otherwise there can be no implied repeal...for the intent of the legislature to repeal the old enactment is utterly lacking.

71. Applying the principles eo enunciated though there appears an apparent conflict between Section 27 of the New Code and Section 6 of the Bal Adhi-niyam, in fact there is none, and the two provisions can co-exist. Under Section 27 of the New Code, enlarged powers have been conferred upon Magistrates, who otherwise could not trv serious offences. Their jurisdiction was confined to the First Schedule of the New Code. But under Section 27. all offences other than punishable with death or life imprisonment committed by persons below the age of 16. have been made triable bv them. Their powers have been enlarged. The provision could not be understood to imply curtailing of the jurisdiction of the Juvenile Courts, which had conferred upon them bv special Acts powers to deal with juvenile offenders even when the offence was punishable with death or life imprisonment. Firstly their Powers would be saved under Section 5 of the Code. Secondly, it must be held that the provisions of the Special Act and the seneral Enactment could co-exist inasmuch as the interpretation should be that the General Law does not trench upon the Special Law where it eives superior jurisdiction to the Courts, but where lesser jurisdiction has been conferred, the General Law proposes to give enlarged jurisdiction. Unless such an interpretation is put. there is bound to arise a good deal of confusion. The Bal Adhinivam is an exhaustive Legislation in respect of juvenile offenders and that Code of Criminal Procedure hardly touches upon any aspect except in conferring enlarged jurisdiction to ordinary Courts and Juvenile Courts of lesser jurisdiction when they deal with offenders below the age of 16. That is how the two enactments exist side bv side.

72. In mv view, therefore, Section 27 of the New Code does not limit the jurisdiction of the Juvenile Courts1 constituted under the Bal Adhinivam to trial of cases other than punishable with death and life imprisonment. I also agree with the learned Advocate General that Section 27 of the New Code corresponds with Section 29-B of the old Code in its intrinsic character. The new section is almost the replica of the old one with consequential changes which are bound to be there. Instead of District Magistrate, Presidency Magistrate or Magistrate First Class, the corresponding Court of the Chief Judicial Maeistrate has been substituted. The age of the offender has been increased from 1'5 to 16. which under the special Act was 16 already. Instead of 'custody, trial and punishment' the new section has the expression of 'treatment, training and rehabilitation'. The Reformatory Schools Act which was mentioned in the old section was repealed in most of the States by their Children Acts and, therefore, a corresponding change was introduced in the new section bv mentioning the Children Act of 1960 and other corresponding laws of the States. Section 8 of the General Clauses Act. in mv view, would be attracted and the Bal Adhinivam could be read with reference to the modified re-enacted provision wherever reference to Section 29-B was made in that Act. Section 8 of the General Clauses Act permits reading of a rfi-enacted provision, though in a modified form provided the provision did not evince a different intention. In my view, different intention is not evinced. Section 67 of the Bal Adhiniyam read v/ith reference to Section 27 of the New Coda (which stands substituted for Section 29-B) makes the position clear that the provision of the Code in S, 27 is not to apply.

73. In the result, therefore. I am of the opinion that Section 27 of the New Code would not affect the jurisdiction of the Juvenile Courts to trv cases even involving punishment of death and life imprisonment.

ORDER OF THE COURT

P.K. Tare, C.J.

74. For the reasons given in our order delivered today in Cri. Revn No. 295 of 1973. (The State of M. P. v. Tlamesh Nai and Shivram), we would accept the reference made bv the Additional Sessions Judge and, would hold that the order of the Juvenile Court committing the accused to stand his trial in the Sessions Court was erroneous. We set aside the order of the Juvenile Court and direct the Juvenile Court to trv the accused of the offences alleged in accordance with the provisions of the Madhya Pradesh Bal Adhinryam, 1970.


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