Varghese Kalliath, J.
1. The question which we are asked to decide as a point of law is whether a child accused can be committed for trial before a Sessions Court along with an adult accused. We have no hesitation to give the answer; that a child accused can never be committed before the Sessions Court for trial along with an adult accused under the present law. We are also of opinion that in view of the provisions contained in the Kerala Children Act, 1972, a child accused cannot be tried by ordinary criminal courts. We feel certain that our conclusions are well fortified by the decision of the Supreme Court reported in : 1981CriLJ1497 (Raghbir v. State of Haryana).
2. Before proceeding to give our reasons for the conclusion, we shall give in brief the facts, which gave rise to this question. S.C. Nos. 81/83 and 82/83 on the file of the Sessions Court, Trichur were registered as per the committal orders passed by the Judicial Magistrate of First Class, Chalakudy in C.P. Nos. 29/83 and 30/83 respectively. The Sessions Judge made over these matters to the Asst. Sessions Judge, Irinjalakuda. The learned Asst. Sessions Judge found that the first accused in both the cases is aged 13. He also found that the second accused is aged 49. Rightly he pointed out that the case against the child accused cannot be tried along with the adult accused. He referred the matter to the Sessions Judge with his opinion that the charge against the child accused has to be split up and a separate charge has to be framed against the child accused. The Sessions Judge also expressed his opinion that the child accused cannot be tried along with an adult accused by the Court of Session. He also expressed his opinion that the child accused will have to be tried by the Children's Court. He said that the committal orders passed by the Judicial First Class Magistrate, Chalakudy are not in accordance with law and so the committal orders will have to be quashed. Since the Sessions Court cannot invoke its revisional jurisdiction in these matters under Section 397, Cr. P.C., the matter was referred to this Court by the Sessions Judge. This Court registered the case as a calendar revision case.
3. The Kerala Children Act, 1972 (for brevity, the Act) came into force with effect from 1st April, 1978. The preamble of the Act tells us in unmistakable terms the meaningful purpose of the Act. It is 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 the State of Kerala.
4. Section 2(d) of the Act defines 'child' to mean a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years and when used with reference to a child sent to a children's home or special school applies to that child during the whole period of the stay, notwithstanding that during the period of such stay, the child may have attained the above age limit. Section 2(i) of the Act defines a delinquent child to mean a child who has been found to have committed an offence.
5. Sub-section (1) of Section 4 of the Act provides for the constitution of a children's court. It provides that notwithstanding anything contained in the Cr. P.C., 1898 (Central Act 5 of 1898), the Government may, by notification in the Gazette, constitute for any area specified in the notification, one or more children's courts for exercising the powers and discharging the duties conferred or imposed on such Court in relation to delinquent children under the Act. Sub-section (3) of Section 5 of the Act directs that no person shall be appointed as a Magistrate of a children's court unless he has, in the opinion of the Government, special knowledge of child psychology and child welfare. Section 6 of the Act has conferred powers on the children's court under Section 4 of the Act to deal exclusively with all proceedings under the Act relating to neglected children and delinquent children.
6. We think Section 7 of the Act is an important provision. Section 7 prescribes the procedure to be followed by a magistrate not empowered under the Act. It provides that when any Magistrate not empowered to exercise the powers of a children's court under the Act is of opinion that a person brought before him under any of the provisions of the Act (otherwise than for the purpose of giving evidence) is a child, he shall record such opinion and forward the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding. Further it is provided that the competent authority to which the proceeding is forwarded under Sub-section (1) shall hold the inquiry as if the child had originally been brought before it. Section 8 provides for constitution and establishment of children's homes and Section 9 provides for establishment and maintenance of special schools. Section 10 provides for observation homes and Section 11 for the establishment of aftercare organisations. Section 12 makes provision for the production of neglected children before the children's court by the police officers and other persons authorised by the Government. Section 17 of the Act provides for the bail and custody of delinquent children; This section directs that a child accused of any non-bailable offence, notwithstanding anything contained in the Cr. P.C., 1898 (Central Act 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. Further it is provided that when such person having been arrested is not released on bail under Sub-section (1) by the officer-in-charge of the police station, such officer shall cause him to be kept in an observation home in the prescribed manner, but not in a police station or jail, until he can be brought before a children's court. Again if the children's court thinks that such a person cannot be released on bail, 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. This section definitely points to the fact that the Legislature thought that delinquent-children should not have any association with adult criminals. Section 19 of the Act provides for the enquiry of the delinquent children by a children's court, in accordance with the provisions contained in Section 39 of the Act. Section 20 confers power on the children's court to pass orders regarding delinquent children. Where a children's court is satisfied on enquiry that a child has committed an offence, it is provided that the court can if it so thinks fit direct the child to be released on probation of good conduct or to be placed under the care of any parent, guardian or other fit person on executing a bond with or without surety or make an order directing the child to be sent to a special school for the period until he ceases to be a child. Section 21 is a vital section. It interdicts passing of certain orders against delinquent children. It provides inter alia that 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 default of payment of fine or in default of furnishing security. Section 22 provides that no proceeding shall be instituted, notwithstanding anything to the contrary contained in the Cr. P.C., 1898 (Central Act 5 of 1898), and no order shall be passed against a child under Chapter VIII of the Cr. P.C.
7. Now Section 23 gives a direct answer to the question that has been raised in the case. We quote:
23. No joint trial of child and person not a child- (1) Notwithstanding anything contained in Section 239 of the Cr. P.C., 1898 (Central Act 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 with a person who is not a child.
(2) If a child is accused of an offence for which, under Section 239 of the Cri. P.C., 1898 (Central Act 5 of 1898), or any other law for the time being in force, such child and any person who is not a child would, but for the prohibition contained in Sub-section (1), have been charged and tried together, the court taking cognizance of that offence shall direct separate trials of the child and the other person.
This section in unmistakable terms enjoins separation of trials of delinquent child and a person who is not a child.
8. A look through of the provisions of the Act informs us that the procedure for trial, conviction and sentence under the Act are plain, benignant and civil. The courts under the Act are staffed with persons with knowledge of child psychology and child care. The moving spirit of the legislation is clean and clear. It is to provide for a separate machinery for dealing the juvenile delinquents and to provide for a special forum for the trial of juvenile delinquents, so that the delinquent children do not come in contact with hardened criminals. The laudatory purpose behind the Act is to redeem and reform, the delinquent children and rehabilitate them in such a manner that they will be restored to the society as useful citizens later in life.
9. Sub-section (1) of Section 59 of the Act runs thus':
59. Central Act 8 of 1897 and certain provisions of Central Act 5 of 1898 not to apply. -(1) The Reformatory Schools Act, 1897 (Central Act 8 of 1897) and Section 29B and Section 399 of the Cri. P.C., 1898 (Central Act 5 of 1898) shall cease to apply to any area in which this Act has been brought into force.
Section 27 of the new Cr. P.C. has replaced Section 29-B of the old Code. Section 399 of the old Criminal Procedure Code provided for confinement of the delinquent children in reformatories after conviction instead of sending them to prison. We shall now quote certain relevant provisions of the Cr. P.C., 1973. Section 4 reads:
(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter Contained.
(2) 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.
Section 5 reads:
Nothing contained in this Code shall, in the absence of a specific provision to the contrary, 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.
Section 27 of the Code also is of importance. It reads:
Any offence not punishable with death or imprisonment for life, committed by 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 by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act, 1960 (60 of 1960), or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.
For the sake of completeness we should consider the effect of these sections of the Cr. P.C. in relation to the Children Act. We are' relieved of that task by an exhaustive consideration of this aspect by the Supreme Court in : 1981CriLJ1497 . We think it is Opposite to quote the observation of the Supreme Court in this regard.
Putting emphasis on the expressions, in the absence of any specific provisions to- the contrary', occurring in the Section 5, Mr. Bhagat submits that Section 27 is the specific provision to the contrary and as such this provision shall affect the Haryana Children Act which is a local law for the time being in force. We are unable to accept the submission. As it has been pointed out above, the purpose of the Haryana legislature as well as of the Parliament in enacting the Haryana Children Act and the Central Children Act (Act 60 of 1960) respectively was to give separate treatment to delinquent children in trial, conviction and punishment for-offences including offences punishable with death or imprisonment for life. In our opinion, Section 27 is not 'a specific provision to the contrary', within the meaning of Section 5 of the Act; the intention of the Parliament was into to exclude the trial of delinquent children for offences punishable with death or imprisonment for life, inasmuch as Section 27 does not contain any expression to the effect 'notwithstanding anything contained in any Children Act passed by any State legislature'. Parliament certainly was not unaware of the existence of the Haryana, Children Act coming into force a month earlier or the central Children Act coming into force nearly fourteen years earlier. What Section 27 contemplates is that a child under the age of sixteen years may be tried by a Chief Judicial Magistrate or any court specially empowered under the Children Act, 1960. It is an enabling provision, and, in our opinion, has not affected the Haryana Children Act in the trial of delinquent children for offences punishable with death or imprisonment for life.
10. The provisions of the Haryana Act which were considered by the Supreme Court are identical in spirit with the provisions of the Act. In that case : 1981CriLJ1497 the appellant along with three others were convicted and sentenced to imprisonment for life by the Sessions Judge. The appeal was dismissed by the High Court. An appeal was filed before the Supreme Court. The appellant in that case was less than sixteen years at the time he first appeared before the trial court. He was a child within the meaning of the term under Clause (d) of Section 2 of the Haryana Children Act, 1974. In that Act, child has been defined as to mean a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. It can be noted that the definition of child in the Kerala Children Act, 1972, is identical with the definition of child in the Haryana Act. Similarly, a delinquent child has been defined as meaning a child who has been found to have committed an offence. Considering the provisions of the Haryana Act, the Supreme Court after finding that the conviction and sentence imposed upon the appellant (child) are unsustainable in view of the provisions of the Act, quashed the entire trial and conviction of the appellant (child). In view of the above decision, we feel certain that the committal orders in this case are illegal and are liable to be quashed.
11. Before leaving the case, we shall also refer to a decision of this Court, 1980 Ker LT 719, (State of Kerala v. Kuriakose). In 1980 Ker LT 719, this Court held that in view of the express prohibition in Section 23 of the Act, 'the charging and trial of the 4th accused, a child coming within the ambit of the Act, along with adult accused by the Court of Session was clearly illegal.' The court quashed the charge framed against the 4th accused who was a child in that case. The Court further directed 'to split up the case and separate the child from the trial of others and proceed with the trial of the other accused in accordance with law from the stage it had already reached.', Kader, J. observed that the learned Sessions Judge would commence the case against the 4th accused afresh and try him separately for the offence alleged to have been committed by him in accordance with the provisions of the Kerala Children Act, 1972. This direction to the Sessions Judge is wrong in principle and law. It is against the ratio of the decision reported in : 1981CriLJ1497 and against the provisions of the Kerala Children Act, 1972, already referred to above. The Supreme Court has categorically said that the trial of juvenile delinquent for offences punishable with death or imprisonment for life or for any offence should be in the form provided in the Act and in accordance with the provisions of the Children Act.
12. The learned Judge in 1980 Ker LT 719 did not quash the committal order, but only quashed the charge framed against the 4th accused in that case. This may give rise to a doubt as to whether a Magistrate has power to commit a child offender to the Sessions Court for trial. We make it clear that a Magistrate not empowered to exercise the powers of the Children's Court has no power to deal with a delinquent child. No Magistrate can commit a child offender for a trial before a Sessions Court. He can only refer such a person (child) in accordance with the provisions of the Act to the competent authority.
We end as we began, the committal orders passed by the Judicial Magistrate of First Class, Chalakudy in regard to the child accused, are quashed. The case is sent back to the Magistrate' for appropriate action in accordance with the provisions of the Children Act, 1972.