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State Vs. Madhubharti and Chelabhathi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1961CriLJ227; (1961)2GLR218
AppellantState
RespondentMadhubharti and Chelabhathi
Cases ReferredState of Mysore v. Mallappa
Excerpt:
.....was argued before him, he passed an order expressing his view that under section 8 of the act, the learned magistrate was entitled to try the accused even though the offence under section 302 of the indian penal code with which the accused was charged was triable exclusively by the court of sessions under the provisions of the criminal procedure code and that since the court of the learned magistrate was the court of the lowest grade competent to try the case, the learned magistrate should not have committed the case to the court of sessions, even though under section 8 the court of sessions was also competent to try the accused in the exercise of its original jurisdiction. now it is a well-settled rule of construction that where a general law and a special law operate upon the same..........the indian penal code by the judicial magistrate, first class, palampur. it appears that while the learned magistrate was trying the case against the accused under the provisions of the act, an application was submitted by the police prosecutor drawing the attention of the judicial magistrate to a recent decision of the high court of mysore in the case of state of mysore v. mallappa air 1960 mys 71, wherein it has been held that if a child is involved in an offence which is exclusively triable by the court of sessions under the general provisions of the criminal procedure code, the magistrate would have no jurisdiction to try the child for the offence and the magistrate should commit the case to the court of sessions for trial. the matter was argued before the learned magistrate and the.....
Judgment:
ORDER

P.N. Bhagwati, J.

1. This reference has been made by the learned Sessions Judge, Banaskantha, for quashing an order passed by the Judicial Magistrate, First Class, Palanpur, committing the accused to stand his trial before the Sessions Court for the offences under Sections 369, 379 and 302 of the Indian Penal Code. The facts giving rise to this reference may be shortly stated as follows.

2. The accused is admittedly fifteen years old and is a child within the meaning of the Bombay Children Act, 1948, which applies to the Banaskantha District. The accused was charged with having committed offences under Sections 369, 379 and 302 of the Indian Penal Code by the Judicial Magistrate, First Class, Palampur. It appears that while the learned Magistrate was trying the case against the accused under the provisions of the Act, an application was submitted by the Police Prosecutor drawing the attention of the Judicial Magistrate to a recent decision of the High Court of Mysore in the case of State of Mysore v. Mallappa AIR 1960 Mys 71, wherein it has been held that if a child is involved in an offence which is exclusively triable by the Court of Sessions under the general provisions of the Criminal Procedure Code, the Magistrate would have no jurisdiction to try the child for the offence and the Magistrate should commit the case to the Court of Sessions for trial. The matter was argued before the learned Magistrate and the learned Magistrate following this decision of the High Court of Mysore passed an order committing the accused for trial before the Sessions Court.

3. When the case came up before the learned Sessions Judge, Banaskantha, he felt that the learned Magistrate had jurisdiction under the Act to proceed with the trial of the accused and that it was not at all necessary for the learned Magistrate to commit the case for trial to the Court of Sessions. The learned Sessions Judge thereupon issued notices to the Public Prosecutor as well as to the accused and after the matter was argued before him, he passed an order expressing his view that under Section 8 of the Act, the learned Magistrate was entitled to try the accused even though the offence under Section 302 of the Indian Penal Code with which the accused was charged was triable exclusively by the Court of Sessions under the provisions of the Criminal Procedure Code and that since the Court of the learned Magistrate was the Court of the lowest grade competent to try the case, the learned Magistrate should not have committed the case to the Court of Sessions, even though under Section 8 the Court of Sessions was also competent to try the accused in the exercise of its original jurisdiction. The learned Sessions Judge accordingly made the present reference to this Court.

4. The learned Government Pleader who appears on behalf of the State has submitted that the reference may be accepted by me, I have carefully gone through the order passed by the learned Sessions Judge and I find myself in entire agreement with the reasoning to be found in that order. The only relevant sections of the Act which have a bearing on the determination of the question raised in this reference are Sections 8, 9, 13 and 24 which run as follows:

8. The powers conferred upon a juvenile court under this Act shall, subject to the provisions thereof, be also exercisable by the following courts, whether trying any case originally, or on appeal or in revision, as the case may be:

(a) the High Court,

(b) a Court of Session,

* * * * (e) a salaried Presidency Magistrate,

(f) a salaried Magistrate of the First Class.

9. 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 is charged with the commission of an offence and shall deal with and dispose of all other proceedings under this Act, but shall not have power to try any case in which an adult is charged with an offence under 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 any other proceedings under this Act'. '13. In the trial of a case in which a child is being tried together with an adult in accordance with the provisions of this Act, if the magistrate trying the case comes to the conclusion that the case is a fit one for committal to the court Of session, he shall separate the case in respect of the child from that in respect of the adult and shall direct the adult alone' to be committed to the court of sessions for trial and shall proceed with the trial of the case in respect of the child notwithstanding anything in the Code of Criminal Procedure, 1898. or any other law for the time being in force.

24. Except as expressly provided under this Act or the rules made thereunder, the procedure to be followed in the trial of cases and the conduct of proceedings under this Act shall be in accordance with the provisions of the Code of Criminal Procedure, 1898

5. There is no juvenile Court established for the local area in question and the only point which I have, therefore, to consider is whether the learned Magistrate was competent to try the case by reason of the provisions contained in Section 8, for it is Section 8 which deals with the powers exercisable by various Courts including the court of a Magistrate of the First Class. Section 8 provides in language clear and explicit that the powers conferred upon a juvenile court under the Act shall also be exercisable by various Courts mentioned in the Section, whether trying any case originally, or on appeal or in revision. as the case may be and the Courts mentioned are the High Court, a Court of Session, a salaried Presidency Magistrate, and a salaried Magistrate of the First Class. In order, therefore, to determine what are the powers of a salaried Magistrate of the First Class while trying an accused who is a child within the meaning of the Act, I must see what are the powers conferred upon a juvenile court under the Act. Those powers are to be found in Section 9(1) and that Section declares that a juvenile court shall try all cases in which a child is charged with the commission of an offence and shall deal with and dispose of all other proceedings under the Act. The juvenile court is empowered to try all cases in which a child is charged with the commission of an offence and no exception is made in respect of offences which are exclusively triable by the Court of Sessions. It must be noted that the Act is a special enactment which deals exclusively with the custody, protection, treatment and rehabilitation of children and youthful offenders and the trial of youthful offenders in the State of Bombay. Now it is a well-settled rule of construction that where a general law and a special law operate upon the same field and there is conflict between the two, it is the special law which must prevail as against the general law. Apart from that it is expressly enacted in Section 24 that the procedure to be followed in the trial of cases and the conduct of proceedings under the Act shall be in accordance with the provisions of the Code of Criminal Procedure, 1898, except as expressly provided under the Act or the rules made thereunder. If, therefore, there is an express provision of the Act and it is in conflict with the general provisions of the Code of Criminal Procedure, the express provision of the Act must prevail and exclude the operation of the general provisions of the Code of Criminal Procedure. This being the legal position, it is clear that when Section 8 read with Section 9 in express terms provides that a Magistrate of the First Class shall be entitled to try all cases in which a child is charged with the commission of an offence irrespective of what the nature of the offence is, I must give effect to that provision and not cut down the meaning and effect of the plain language of the enactment by taking out of the ambit and operation of the enactment offences which are exclusively triable by the Court of Sessions. The language of Sections 8 and 9 is clear and unambiguous and does not leave the meaning in dubio and to hold that a Magistrate of the First Class has no jurisdiction to try a case where a child is accused of an offence exclusively triable by the Court of Sessions under the general provisions of the Code of Criminal Procedure would be to introduce in the Sections words of limitation or exception which are not there and to put a meaning on the Sections which the language cannot by any canon of construction bear. This view which I am disposed to take receives considerable support from the provisions of Section 13. Section 13 deals with a case where a child is being tried together with an adult in accordance with the provisions of the Act and provides that, if the Magistrate trying the case comes to the conclusion that the case is a fit one for committal to the Court of Sessions, he shall separate the case in respect of the child from that in respect of the adult and shall proceed with the trial of the case in respect of the child notwithstanding anything in the Code of Criminal Procedure. This procedure clearly postulates that the Magistrate trying the case under the provisions of the Act has power to try the case against the child even though the offence may be one exclusively triable by the Court of Session. There is, therefore, inherent evidence in Section 13 which goes to show that,-a Magistrate of the First Class has power under the provisions of the Act to try all cases including a case in which a child is charged with an offence exclusively triable by the Court of Session. I am, therefore, of the opinion that the view expressed by the learned Sessions Judge is correct and that a Magistrate of the First Class is competent to try a case against an accused who is a child within the meaning of the Act, even though the offence may be one exclusively triable by the Court of Session. The decision of the Mysore High Court referred to in the order of the learned Sessions Judge appears to have over-looked the provisions of Sections 8 and 9 and as pointed out by the learned Sessions Judge, the High Court in that case seems to have been, influenced by the contention Urged by the Additional Assistant Advocate General that the Act does not anywhere provide that a Magistrate exercising the powers of a juvenile Court would be competent to try cases, which under the Code of Criminal Procedure are exclusively triable by the Court of Sessions. This contention is obviously unsound and is contrary to the express provisions of Sections 8 and 9. I cannot, therefore, accept the reasoning of the judgment in that case and respectfully decline to follow the same.

6. In the result I accept the reference and make the rule absolute.


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