K.S. Sidhu, J.
1. This is a Criminal Reference under Section 395, Cr. P.C. made by the Additional Sessions Judge, Ajmer. It has arisen in the following circumstances.
2. A report was lodged by Chhotu Singh with the Ajmer Police on March 14, 1978 alleging that Mehavir Singh, Sumer Singh and Prem Singh had abducted his son Udaisingh in order to murder him and that they had actually murdered him. On investigation, the police submitted a charge-sheet against Mahavir Singh and Sumer Singh in the Court of Judicial Magistrate 1st class No. 4, Ajmer, on April 22, 1978, praying for proceedings against them for their trial under Sections 302 and 364, I.P.C. The case against the third accused namely, Prem Singh, a child, was filed in the children's court, Ajmer, for proceedings according to law.
3. By his order, dated, May 16, 1978, the Judicial Magistrate 1st class, Ajmer, committed Mahavir Singh and Sumer Singh to the court of session at Ajmer for trial under Sections 302 and 364, I.P.C.
4. The accused persons challenged the order of commitment and filed a revision against it. By his order dated, September 80, 1979, the learned Additional Sessions Judge held this both Mahavir Singh and Sumer Singh were below 16 years of age, and as such each of them was entitled to be treated as a 'child' as defined in Clause (d) of Sub-section (1) of Section 2 of the Rajasthan Children Act, 1970 (hereafter called the Act) He, however, further held that though they were children, they could still be tried by the court of sessions at Ajmer under Sections 302 and 364, I.P.C. in view of the provisions of Section 27 of the Code of Criminal Procedure, 1973 (hereafter called the New Code) The revision petition was, therefore, dismissed.
5. The learned Additional Sessions Judge thereafter commenced trial of Mahavir Singh and Sumar Singh on the charges punishable under Sections 302 and 364, I.P.C. Undaunted by the earlier refusal of the learned Judge to entertain the objection to his jurisdiction, the defence counsel made another application repeating the same objection that the learned Judge had no jurisdiction to try these children for the offence charged against them. The learned Judge dismissed the said application on April 2, 1980 stating that he had already held that be had no jurisdiction to try these children on charges under Sections 302 and 364, I.P.C. He further held that he was cot competent to review his earlier order dated September 10, 1979.
6. Meanwhile, the learned judge, who passed the afore-mentioned orders was transferred. When the case came up before his successor on May 15, 1980, for final arguments in the trial, counsel for the children raised a preliminary objection to the effect that the learned trial Judge had no jurisdiction to convict and sentence the children even if he found that they had committed the offences for which they were on trial. The learned Judge seems to agree that he had no jurisdiction to try the children or to convict and sentence them. He, however, feels that in view of the earlier orders passed by his predecessor on September 10, 1979 and April 2, 1980, he has no option but to proceed wish the trial and conclude it, unless the said orders are set aside by the High Court as erroneous. That is why the learned Judge has made the present reference, recommending that the High Court may, in effect, set aside the said orders and transfer the case from his Court to the children's court, Ajmer so that the children may be dealt with by the said court in accordance with the provisions of the Act.
7. On receipt of this reference and examining the record, this Court considered it necessary to hear the view point on behalf of the State. Mrs. Kamla Jain a Public Prosecutor was good enough to appear for the State. She rendered valuable assistance to the Court.
8. In order to have a better appreciation of the question of jurisdiction raised in the reference, it will be helpful to start with a reading of the relevant provisions of the Act. Section 2(1)(d) of the Act defines a 'child' to mean a 'boy' who has not attained the age of 16 years or a girl who has not attained the age of 18 years. A 'delinquent child' as defined in Section 2(1)(i) means a 'child' who is found to have committed an offence Section 2(1)(g) defines 'competent authority' to mean in relation to delinquent children, a 'children's court' constituted under Section 5, and where no such children's court has been constituted, it includes the court of a District Magistrate or the Sub-Divisional Magistrate or any Magistrate of the first class. Sub-section (1) of Section 7 confers exclusive jurisdiction on the children's court to deal with proceedings under the Act relating to delinquent children. Sub-section (3) of Section 7 lays down that the powers conferred on a children's court by the Act may also be exercised by the High Court and the court of Sessions when the proceeding comes before them in appeal or revision or otherwise. Section 32 provides for the determination of the age of a person who appears to be a child. It lays down that the competent authority shall make due inquiry as to the age of that person and shall record a finding whether the person is a child or not. Section 20 deals with inquiry by children's court regarding delinquent children. It lays down that where a child having been charged with an offence appears or is produced before a childrens court, the said court will hold an inquiry in accordance with the provisions of Sections 39 of the Act. Section 39 lays down, inter alia, that inquiry under Section 20 regarding a child shall be held, as far as may be, according to the procedure laid down by the Code of Criminal Procedure, 1898 (hereafter called the old Code) for trial in summons cases. Section 21 deals with orders that may be passed regarding delinquent children as a result of the inquiry under Section 20. It lays down that if the children's court finds as a result of the inquiry that a child has committed an offence, it may notwithstanding anything to the contrary contained in any other law, for the time being in force allow the child to go home after advice or admonition, direct him to be released on probation of good conduct or make an order directing that the child be sent to a special school. Section 22 of the Act makes it further clear in so many words that, notwithstanding anything contrary contained in any other law for the time being in force, so delinquent child shall be sentenced to death or imprisonment or committed to prison in default or payment of fine or in default or furnishing security
9. It will be seen from the above conspectus of the, relevant provisions of the Act that in areas like Ajmer in which the Act is in force the children's court has exclusive jurisdiction to deal with all proceedings under the Act relating to delinquent childern. If a child, charged with an offence, appears or is produced before a children's court, such court shall deal with him and hold inquiry in relation to him following the procedure prescribed by the Code of Criminal Procedure, 1973 (hereafter called the New Code) for trial of summons cases. It is noteworthy that the legislature has deliberately eschewed the use of the words 'accused', 'trial', 'conviction' and 'sentence' in relation to the proceedings which the children's court may told in relation to a child. It may for example hold an 'inquiry', as distinguished from a 'trial', with a view to finding out if the child concerned has committed any offence or not. If he has not committed any offence, the children's court shall of course acquit him. But if he is found to have committed any offence, the children's court is forbidden by necessary implication, from passing an order of conviction against him. Nor can such a court award any sentence of death or imprisonment of any kind to a delinquent child. If the child is above 14 years of age and earns money, he may be ordered, and not sentenced, to pay a fine, and if he does not pay the fine, he cannot be committed to prison in default of payment of fine or even in default of furnishing security.
10. After having read the relevant provisions of the Act and drawn conclusions from it as aforementioned, one would want to say right away that there is no ambiguity about the law under the Act about the jurisdiction of the children's court which has, to quote Section 7 in terms, 'power to deal exclusively with all proceedings under the Act relating to delinquent children'. Doubt, however, arose about this position in the mind of the learned Additional Sessions Judge who was seized of the case as a revisional court before the Judge who made the present reference. It will be seen from the order dated September 10, 1979, pasted in revision by the learned Additional Sessions Judge, that he discovered some repugnancy between Section 27 of the New Code, which is legislation enacted by the Parliament, and Section 58 of the Act which is legislation enacted by the Legislature for the State of Rajasthan. Holding that the law made by Parliament must prevail in preference to the law made by the State Legislature, the learned Judge came to the conclusion that Section 27 of the New Code applies to this case. Section 27 reads:
27. Jurisdiction in the case of juveniles: 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 (60 of 1960), or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.
It is on the basis of this section that the learned judge held that since the offence alleged to have been committed by the children in this case is punishable with death or imprisonment for life, jurisdiction of the court of Sessions to try them for the commission of the said offence in accordance with the procedure for trial before a court of sessions as prescribed in Chapter XVIII of the News Code is still intact.
11. In arriving at the aforementioned conclusion to the effect that a child who is alleged to have committed an offence punishable with death or imprisonment for life can be validly tried by a court of sessions in accordance with the procedure prescribed by the New Code, the learned Judge appears to have ignored Section 5 of the New Code, which may be read here:
5. 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.
This section came up for consideration by the Supreme Court in Rohitas v. State of Haryana : 1979CriLJ1365 in relation to the Haryana Children Act, 1974, which is pari materia with the Act with which we are concerned in the instant case. The Supreme Court held that Section 5 carves out a clear exception to the ordinary trial procedure as contained in the old or New Code in respect of special form of procedure prescribed by any special or local law for the time being force, In other words, Section 5 of the New Code expressly protects the procedure prescribed in the Act for dealing with a child who appeals or is brought before a children's court on the allegation of having committed an offence. It will be noted that the Act makes no exception in respect to an offence punishable wish death or imprisonment for life. Such an offence can also be dealt with by the children's court like other offence in accordance with the procedure prescribed in the Act.
12. It may be mentioned here that Section 58 of the Act expressly excludes the application of Section 29B of the old Code in respect of any area in which the Act has been brought into force. Section 58 is protected like the other provisions in the Act by Section 5 of the New Code. That is why the Supreme Court held in Rohitas v. State of Haryana (supra) that so long as Section 58 is in force, Section 29B of the old Code is completely out of action. If Section 29B of the old Code is completely out of action, Section 27 of the New Code is also out of action by the same token. This is because of the provisions of Sub-section (1) of Section 8 of the General Clauses Act, 1897. The said Sub-section reads as under:
8. Construction of the reference to repealed enactment. - (1) Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification any provision of a former enactment, then references in any 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 enacted.
13. Section 484 of the New Code repeals the old Code. The said repeal attracts all the provisions of Sub-section (1) of Section 8, reproduced above. It can, therefore, be safely held that reference in the Act to Section 29B of the old Code shall be construed as a reference to Section 27 of the New Code.
14. For all these reasons, I accept this reference, set aside the orders of the learned Additional Sessions Judge dated September 10, 1979 and April 2, 1980, and instead hold that he has no jurisdiction to try Mahavir Singh and Sumer Singh alia Sumelia, who are admittedly children as defined in the Act. The jurisdiction to deal with the children lies exclusively with the children's court Ajmer. All the proceedings so far held in respect of the children by court and court of sessions are set aside. The learned Sessions Judge Ajmer will remit the case to the children's court at Ajmer for further proceedings according to law in the light of the observations made in this judgment.
15. The reference is answered accordingly.