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Sessions Judge Vs. Perumal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1974CriLJ261
AppellantSessions Judge
RespondentPerumal and anr.
Cases ReferredRamachandra Misra v. President
Excerpt:
- venkataraman, j.1. this is a reference by the learned sessions judge of tirunelveli to transfer j. c. no. 264 of 1972 pending against juvenile pandi, from the file of the juvenile court. tirunelveli, to the court of session. the circumstances under which the reference has been made are these. a charge-sheet, was filed by the police in the court of the sub-magistrate, nanguneri against two persons, one perumal and his son. the said pandi, on the allegation that pandi. committed an offence of murder (section 302 of the indian penal code) and that the father abetted the commission of the said offence and was (punishable under section 302 read with section 34 or section 302 read with section 109 i. p. c. at the time of the filing of the charge-sheet pandi was less than eighteen years of age.....
Judgment:

Venkataraman, J.

1. This is a reference by the learned Sessions Judge of Tirunelveli to transfer J. C. No. 264 of 1972 pending against juvenile Pandi, from the file of the Juvenile Court. Tirunelveli, to the Court of Session. The circumstances under which the reference has been made are these. A charge-sheet, was filed by the Police in the Court of the Sub-Magistrate, Nanguneri against two persons, one Perumal and his son. the said Pandi, on the allegation that Pandi. committed an offence of murder (Section 302 of the Indian Penal Code) and that the father abetted the commission of the said offence and was (punishable under Section 302 read with Section 34 or Section 302 read with Section 109 I. P. C. At the time of the filing of the charge-sheet Pandi was less than eighteen years of age and was a young person as defined in Section 3 of the Madras Children Act, 1920. The case against him was split up and the case against the father was taken on file by the Sub-Magistrate. Nanguneri. as P. R. C. No. 21 of 1973. Then a separate charge-sheet was filed against Pandi in the Juvenile Court, Tirunelveli, and it was taken on file as J.C. No. 264 of 1972, The trial of that case is pending in that Court. In respect of Perumal, the Sub-Magistrate. Nanguneri, held a preliminary enquiry under Chapter XVIII of the Code of Criminal Procedure, and committed Perumal to take his trial in the Court of Session for an offence under Section 302 read with Section 34 I. P. C. The case was taken on file by the Court of Session as S. C. No. 112 of 1972. Charges under Section 302 read with Section 34 or in the alternative under Section 302 read with Section 109 I. P. C. were framed. The trial of that case is over and the case is pending delivery of judgment.

2. It was at this state the learned Sessions Judge made this reference to transfer J. O. No. 264 of 1972 from the file of the Juvenile Court to the Court of Session to be tried by the Sessions Judge, before pronouncing judgment in S. C. No. 112 of 1972. He has adopted this course on the basis of the judement of Maharajan, J., D/- 22-6-1972 in Crl. R. C. No. 444 of 1972 in re Karalan 1972 Mad LW Cr 196 wherein the learned Judge observed:

Where a plurality of persons jointly take part in an offence and some of them happen to be adults and others happen to be juveniles, it is eminently desirable and certainly permissible that the same forum tries all the accused, adult and juvenile, not jointly but separately, trying the adult accused in accordance with the provisions of the Code of Criminal Procedure and the juvenile accused in accordance with the provisions of the Madras Children Act and the rules framed thereunder. Such a procedure will. besides avoiding conflict of decisions in respect of the same occurrence, instil in the minds of the accused the confidence that even handed justice is rendered to them at least in the matter of appreciation of the evidence, without any discrimination being shown merely on the ground of age.

3. In Crl. M. E. No. 996 of 1973 a similar reference has been made by the Assistant Sessions Judge of Tirunelveli to transfer J. C. No. 239 of 1972 from the file of the Juvenile Court to the Court of Session to be tried by the Assistant Sessions Judge who tries S. C. No. 119 of 1972. There it was alleged that two adults committed offences under Sections 450 and 376 I. P. C. and a juvenile abetted the offences. The Sub-Inspector of Police filed a charge-sheet against the adults in the Court of the Sub-Magistrate, Tenkasi, The Sub-Magistrate took it on file as R R. C. No, 10 of 1972 and committed the accused to the Court of Session. The case was taken on file as S. C. No, 119 of 1972 and was made over to the Assistant Sessions Judge for trial. The Sub-Inspector of Police filed a separate charge sheet under Sections 450 and 376 I. P. C, against the* juvenile in the Juvenile Court and it was taken on file as J. C. No. 239 of 1972. The trial is vet to start both before the Assistant Sessions Judge and the Juvenile Court. It was at that stage that the reference was made by the Assistant Sessions Judge to transfer J. C. No. 239 of 1972 to be tried by the same Judge who tried S. C. No. 119 of 1972. The reference has been made on the basis of the judgment of Maharajan. J., in Crl. R, G. No. 444 of 1972 : 1972 MLW Cri 196. That reference came in the administrative side before Kailasam, J. and the Hon'ble the Chief Justice. Kailasam. J felt some doubt about the views of Maharaian, J., extracted above, and expressed himself as follows:

The decision in Crl R. C. No. 444 of 1972 (Mad) requires reconsideration. The view expressed that the adult and the juvenile could be tried by the same Court, not jointly but separately, is not free from difficulty. If, in the earlier case, the Court finds the accused guilty, the subsequent trial of the juvenile OF the adult accused may cause an apprehension, that the Judge had taken a view on the earlier case and his view will be coloured in the subsequent case. The observation of the learned Judge in Paragraph 4 (of flag A) may not be in accordance with Section 38-B (1). An Assistant Sessions Judge tries cases on committal only. He may be a Court under the Children Act to hear an appeal, but the Court empowered to try is the Juvenile Court and, when that Court has jurisdiction under the Act, how can the Assistant Sessions Judge (be) empowered to try the case as summons case In view of there being a judicial decision of the High Court, it is better the matter is not disposed of on the administrative side, but placed before a Bench for orders.

The Hon'ble the Chief Justice concurred. Accordingly that reference was posted before a Bench consisting of Maharajan. J., and myself. Similarly. when Crl. M. P. No. 3957 of 1972 (relating to J. C. No. 264 of 1972) camp UP before Kailasam, J., he directed it to be posted before a Bench. That was also posted before us (Maharaian, J., and myself).

4. Maharaian, J. and myself heard the matter and decided to refer the matter to a Full Bench. I shall now have to explain the reason for this course. But before doing so it will be necessary to refer briefly to the relevant provisions of the Madras Children Act 1920 (which will hereafter be referred to as the Act) and some prior decisions of this Court. Broadly speaking, the Act deals with a child (below the age of 14 years) and a young person (between fourteen and eighteen years). A youthful offender has been defined as a person who has been convicted of an offence punishable with imprisonment and who at the time of such conviction was under the ape of eighteen years. Section 22 prohibits the penalty of death or imprisonment, though in suitable cases imprisonment may be awarded. The Act (Section 26) permits a fine on the youthful offender or his parent and contemplates (Act 23) the youthful offender being sent to the Senior Approved School where necessary training will be given to make him or her a useful citizen. The Act also provides for vagrant children, but we are not concerned with those provisions now. The Act (Section 36) contemplates the establishment of separate courts, called Juvenile Courts, for the hearing of charges against children or young persons, and provides (by Section 4) that the powers exercisable under the Act can also be exercised by some of the ordinary courts established under the Criminal Procedure Code. Section 38-B prohibits the joint trial of an adult and a juvenile. Section 44 empowers the State Government to make rules, Section 4 in particular states:

The powers conferred on courts by this Act shall be exercised only by (a) the High Court (b) a Court of Session, (c) a District Magistrate (d) a Sub-Divisional Magistrate (e) salaried Presidency Magistrate, (f) any Juvenile Court constituted under Section 36 and (g) any Magistrate of the first or second class specially authorised by the State Government to exercise all or any of such powers.

and may be exercised by such courts whether the case comes before them originally or on appeal.

5. In R. T. No. 92 of 1959 dated 29-10-1959, three persons had been convicted by the Sessions Judge on a charge of murder in furtherance of their common intention. The Second accused was a lad of about fourteen years. The Bench (Ramaswami and Anantanarayanan, JJ.) held that, in view of Section 4 (see the word 'originally' underlined by me) the Sessions Judge continued to have jurisdiction over the juvenile. and further held that in that particular case no prejudice had been caused by the joint trial, particularly since the final order in respect of the juvenile was a direction that he should be detained in the Senior Approved School, Chingleput.

6. The above decision is not reported. The same learned Judges held, a few days later, on 6-11-1959, in Anthony v. State . that a Juvenile Court established under Section 36 of the Act had jurisdiction to try and convict a juvenile of an offence under Section 376 I. P. C. (rape), which would otherwise be triable exclusively by the Court of Session, under Schedule II of the Code of Criminal Procedure. The appeal was against the conviction of the juvenile who had been directed to be detained in the Senior Approved School, Chingleput for a period of three years, under the provisions of the Act,

7. The argument of the counsel for the juvenile was based on Section 29-B of the Code of Criminal Procedure and the relevant portion of the decision reads thus:

The more important question is whether the Juvenile Court could try such an offence at all which is exclusively triable by the Court of Session according to Schedule 2 and the general scheme of the Code of Criminal Procedure. In this context learned Counsel for the appellant draws our attention to Sections 29-B of the Code of Criminal Procedure, which is in the following terms:Any offence, other than one Punishable with death or imprisonment for life, committed by any person who at the date when he appears before the court is under the age of fifteen years may be tried by a District Magistrate or a Chief Presidency Magistrate, or by any Magistrate specially empowered by the State Government to exercise the powers conferred by 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 by any other law providing for the custody, trial or punishment of youthful offenders, by any Magistrate empowered by or under such law to exercise all or any of the powers conferred thereby.

The argument of learned Counsel Mr. K. Naravanaswamy (as he then was) is that Section 29-B was enacted when the Reformatory Schools Act. 1897, was being replaced by other legislation such as the Madras Children Act or similar measures; or when such superseding laws were in-contemplation. He states that, in consequence the Central legislature laid it down that all such enactments shall operate only within this restricted scope, namely, that juvenile offenders may be tried by such special courts or Magistrates for any offence other than one punishable with death or imprisonment for life.' Those words have to be read disjunctively, and the implication is that no Juvenile Court, nor Special Magistrate, can try a Juvenile for an offence punish-able with imprisonment for life, such as an offence of rape. The Juvenile Court had, therefore, no jurisdiction in this case. Learned Counsel also refers to a decision of a Bench of the Calcutta High Court, Lakshi Sahu v. Emperor : AIR1932Cal487 where, with reference to an offence punishable under Section 304 I. P. C. it was held that Section 29-B took away the jurisdiction of a specially empowered Magistrate to try a juvenile offender.

'The learned Advocate-General has addressed arguments upon this aspect and drawn our attention, in particular, to Section 1, Sub-clause (2) Criminal P. C.. Section 6 Criminal P. C. and to the provisions of the Government of India Act. 1919, (9 and 10 Geo 5) and the Schedules thereto, which originally governed the power of a State Legislature to enact a measure like the Madras Children Act (Act IV of 1920). It is important to note that under Section 1 (2) Criminal P. G. nothing in the Criminal Procedure Code:

shall affect any special or local law now 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.

Resides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of criminal courts in India...

This juxtaposition 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 away 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 F.C.R. 693 : 51 Cri LJ 921. The learned Judges observed therein:

The concurrent list is not forbidden field to the 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 lays down that the provisions of the Code would not affect any special form of procedure prescribed by any law for time being in force.

We accept the arguments of the learned Advocate General that, upon the grounds set forth already, it was competent to enact the provisions of the Madras Children Act (Act IV of 1920), and that, having regard to the juxtaposition of Section 1 (2) Criminal P. C. and Section 6 Criminal P. C. Section 29-B Criminal P. C. does not by any necessary implication, take away the power of a Juvenile Court established by law to try a juvenile offender even for an offence punishable with death or imprisonment for life.

8. The argument of the counsel as extracted in the above decision left me with the impression that the Madras Children Act was enacted after Section 29-B of the Code of Criminal Procedure. On this impression I felt that Section 29-B permitted a Juvenile Court to be established under a special local law to try any offence other than one punishable with death or imprisonment for life and that, if the special local law wanted to confer jurisdiction on the Juvenile Court even to try an offence punishable with death or imprisonment for life it (the special law) would have specifically stated so. On this approach. I felt that the provisions of the Madras Children Act did not expressly confer jurisdiction on the Juvenile Court to try an offence punishable with death and that consequently the decision in might have to be overruled. Maharaian. J was inclined to agree with me. Thereupon my Lord the Chief Justice was pleased to constitute a Full Bench, consisting of Maharajan, J. Somasundram. J., and myself.

9. It was only at the time of arguments before the Full Bench, the learned Public Prosecutor brought to our attention the all important fact that the Madras Children Act had been enacted earlier than Section 29-B of the Code of Criminal Procedure. The Madras Children Act came into force on 29th June, 1920. the date on which it was published in the Fort St. George Gazette. Section 29-B of the Code of Criminal Procedure was inserted by the Code of Criminal Procedure (Amendment) Act. 1923, (Act 18 of 1923). Act 18 of 1923 was published in the Gazette of India on 14-4-1923. Section 164 of Act 18 of 1923 stated:

This Act shall come into force on such date as the Governor-General in council may by notification in the Gazette of India appoint.

The decision in : AIR1932Cal487 states that Section 29-B of the Code of Criminal Procedure came into force on 1st September, 1923. Thus the Madras Children Act had come into force on 29-6-1920 and Section 29-B of the Code of Criminal Procedure came into force only on 1st September, 1923.

10. Before considering the impact of Section 29-B of the Code of Criminal Procedure on the provisions of the Madras Children Act. 1920, it is all important 'to find out the true construction of the Madras Children Act. 1920, as it stood between 29-6-1920 and 1-9-1923, when alone Section 29-B of the Code of Criminal Procedure came into force. In what follows immediately I am confining myself to that construction. It may be remembered that at that time there was the punishment of transportation (for life or a shorter term). Under the definition of the Madras Children Act, as it was originally enacted, 'Youthful offender' meant any person who has been convicted of an offence punishable with transportation or imprisonment and who at the time of such conviction was under the age of sixteen years.'

11. As a result of the amending Act 26 of 1'955 (Central) transportation for life was replaced by imprisonment for life and transportation for a shorter term was altogether abolished except in cases where the sentence had already been passed before 1955, when it was deemed to be imprisonment for the same period. The amendment and its effect has been discussed in Sibbu Munnilal v. State of M.P. : AIR1968MP97 . Certain consequential amendments in the Madras Children Act were effected by Madras Act 28 of 1958 and the words 'transportation or imprisonment' which originally occurred in the definition of youthful offender were replaced by the simple word 'imprisonment'. I am now confining myself to the definition of youthful offender as it stood before the amendment in 1958, that is to say, in its original form as it was introduced in 1920. though the amendment effected in 1958 would not make any difference. Since the definition referred only to an offence punishable with transportation or imprisonment, it would seem to exclude an offence punishable with death, like Section 302 I. P. C. Similarly Section 23 read:

23 (1) where any person who in the opinion of the Court before which he is charged is twelve years of age but less than sixteen years of age. is convicted of an offence punishable with transportation or imprisonment, the court may in addition to or in lieu of sentencing him according to law to any other punishment, order that he be sent to a senior certified school.

Sub-section (2) also dealt with only an offence punishable with transportation or imprisonment. On account of these Provisions there was room to think that the Madras Children Act meant to deal with an offence punishable at the most with transportation or imprisonment and did not deal with an offence providing a penalty higher than transportation for life such as the penalty of death, for instance, it did not deal with an offence of murder (Section 302 I. P. C.) punishable with death (transportation for life was the alternative sentence). The question was rather intriguing and was therefore referred by the State Government to the Advocate-General (who was then Sir Alladi Krishnaswami Iver). It is necessary to reproduce in full the reference of the Government and the opinion of the Advocate-General:

(G.O. 1175 Home Department.

dated 30-6-36).

I

(Reference of the Government)

The question has been raised as to whether a Juvenile Court constituted under the Madras Children Act. 1920. is competent to try a murder case falling? under Section 302 of the Indian Penal Code which is triable exclusively by a Sessions Court. It is observed that in Section 3 (3) of the Madras Children Act a 'youthful offender' is defined as 'any person who has been convicted of an offence punishable with transportation or imprisonment and that Section 23 which empowers a Juvenile Court to deal with charges against a child or young person refers only to an offence punishable with transportation or imprisonment, but not with death. In the absence of any specific reference in the sections quoted above to young persons convicted of offences punishable with death, it may be contended that Juvenile Courts cannot take cognizance of such cases.

On the other hand, the following arguments may be advanced in, support of the view that Juvenile Courts can take cognizance of offences falling under Section 302 of the Indian Penal Code:

(i) The language employed in Section 36(1) being general in terms seems to be comprehensive enough to include all charges against children or young persons.

(ii) Section 23 of the Act does not seem to restrict the scope of Section 36.

(iii) As the punishment of transportation can also be awarded under Section 302 of the Indian Penal Code, an offence under that Section can be said to be included within the scope of Section 23 of the Children Act.

(iv) Section 27 (i). which is intended for a case where a child or young person is convicted of an offence of so serious a nature that the court is of opinion that no punishment under the Act will be sufficient, may be said to contemplate cases of offences punishable with death.

The Advocate General is requested to

offer his opinion on the point raised.

II

(Opinion of the Advocate General)

On an examination of the various provisions of the Madras Children Act referred to in the memorandum and having regard to the generality of the expression 'offence' in Sections 18 and 21, and of the language of Section 36 and the non-exclusion of any particular class of offences from the purview of the jurisdiction of the Courts referred to in Section 36, I am of opinion that an offence punishable with death is not excluded from the jurisdiction of a Juvenile Court. The fact that a general provision like Section 22 providing that 'notwithstanding anything to the contrary contained in any law, no child or young person shall be sentenced to death' finds a place in the Madras Children Act strengthens one's conclusion that an offence punishable with death is not outside the jurisdiction of the Court established under Section 36.

While the use of the expression 'an offence punishable with transportation or imprisonment' in the various sections of the Act and the omission of any reference to an offence punishable with death may no doubt create some difficulty, it must be taken, in view of the other considerations adverted to above, that the expression 'an offence punishable with transportation' does not exclude the offence of murder. In one sense murder is also an offence Punishable with transportation; it does not cease to be an offence punishable with transportation because there is the alternative punishment of death provided for it in the Indian Penal Code.

12. The opinion of that eminent Advocate-General is entitled to the greatest weight and, most respectfully, I adopt that opinion. In addition to the reasons given by him. I would give two reasons : firstly, that, if the Madras Children Act did not intend to deal with an offence punishable with death, we should expect a positive provision to that effect and further stating that in respect of such an offence the ordinary Code of Criminal Procedure would continue to apply : and, secondly, that we should prefer a construction which would avoid a lacuna in the Act. in the sense that it did not intend to deal with an offence punishable with death. Unless there is anything in the Act compelling us to hold otherwise, we should avoid an interpretation which would produce such a lacuna. There are, however, no such compelling words. At this stage I may refer to some words in Sections 20 and 44 of the Act. which might, on a superficial construction, appear to indicate a contrary view. Section 20 enacts:

A court, on remanding or committing for trial a child or young person who is not relased on bail, shall order him, to be detained in the prescribed manner.

Section 44 states:

(1) The State Government may make rules for the purpose of carrying into effect the provisions of this Act.

(2) In particular, and without pre-judice to the generality of the foregoing. such rules may be made with regard to-

(3) the detention of children and young persons under arrest or remand or committed for trial.

On a superficial reading it might be felt that the words 'committing for trial' which occur in Section 20 and the corresponding words 'committed for trial' which occur in Section 44(1) and (2)(a) indicate a committal for trial to the Court of Session by a Magistrate duly empowered to hold the preliminary enquiry under Ch. XVIII of the Code of Criminal Procedure and that it follows from this that a case of murder punishable with death has to be tried solely by the Court of Session after the child or young person is committed for trial to that court. But. on a closer reading of Section 20, it would be clear that the words were not intended to have such a meaning. It may be noted that Section 20 occurs immediately after Sections 18 and 19. Section 18 (briefly) states that : where a person, apparently under the age of 18 years is arrested on a charge of a non-bailable offence, he shall be informed, as soon as may be of the grounds of his arrest and, unless he is released on bail under Sub-section (2) shall be produced before the nearest Magistrate within a period of 24 hours. Sub-section (2) thereof says that the police officer shall release him on bail unless for reasons to be recorded in writing he believes that such release would defeat the ends of justice or would bring the juvenile into association with any reputed criminal. Section 19 contemplates that when a vagrant child or girl likely to be seduced or arrested on a charge of prostitution is brought before a court, the court shall, pending enquiry or trial, make an order placing such person in such custody as may be prescribed. Then follows Section 20. It would be proper to construe, Section 20 in the light of the circumstance that it immediately follows Sections 18 and 19. From this point of view, two constructions are possible. The first is that the words 'on remanding' may connote a stage where a police officer has arrested and forwarded a young person to the court and it is not vet known whether a charge sheet would be filed. The words 'committing for trial' may denote a stage where a charge sheet has been filed and therefore the trial is sure to follow. The second possible construction is that the words 'on remanding' refer to proceedings under the Act where a mere enquiry, as distinct from a trial, is held, for instance, under Section 29, or Section 36-H of the Act, whereas the words 'committing for trial' refer to those proceedings where that young person is to be tried. In either view, it would not be proper to construe the words 'committing for trial' as referring to a procedure of committal to the Court of Session under Ch. XVIII, Cri. P. C. The context entirely forbids such a construction. In this connection it is not impermissible to refer to the marginal heading in Section 20 itself which says 'remand or committal to custody'. In other words, it is committal to custody and not committal to the Court of Session. Section 44(1) and (2)(d) should also bear the same interpretation. I looked up the statement of Objects and reasons the report of the Select Committee, and the debate in the Madras Legislative Council with reference to the provisions corresponding to Sections 18, 19 and 20. I find that they agree with the interpretation placed by me and do not at all suggest, even remotely, that the words 'committing for trial' were meant to refer to the procedure of committal under Ch. XVIII Criminal P. C. The Statement of Objects and Reasons, with reference to clauses 18, 19 and 20 of the Madras Children Bill, 1917, finds place at page 1156 of Part IV of the Fort St. George Gazette, dated 18-12-1971. the Report of the Select Committee is at pages 1213-1216, Part IV of the Fort St. George Gazette dated 26-8-1919 : and the proceedings of the Council are at page 695. part IV of the Fort St. George Gazette, dated 15-3-1920. In the Statement of Objects and Reasons in that Bill, with reference to clause 18 it is stated-

Clause 18 provides for the release of a youthful offender on bail after arrest at the discretion of the officer in charge of the police station. Clause 117 of the Bill to amend the Criminal Procedure Code now before the Government of India gives a court this power, if the accused is a minor.

13. With reference to clauses 19 and 20, it is stated-

The object of these clauses is to prevent a youthful offender from being detained in prison after arrest or on remand. Rules laying down the procedure to be adopted in such cases will be made.

Clause 20, as it was originally enacted. read-

A court, on remanding or committing for trial a child or young person, who is not released on bail, may, instead of committing him to prison, order him to be detained in the prescribed manner for the period for which he is remanded.

This was altered by the Select Committee. The debate in the Council also shows that it did not deal with the question of committal of trial to the Court of Session under Ch. XVIII of the Code of Criminal Procedure. Leaving out Sections 20 and 44 (D and (2)(a), there is nothing else in the Act to compel us to hold that an offence punishable with death was meant to be excluded from the purview of the Madras Children Act.

14. At this stage it is necessary to point out there is a Full Bench decision of the Madhya Pradesh High Court in : AIR1968MP97 taking a contrary view. It was construing Section 4 of the Reformatory Schools Act. 1897. As locally amended, it ran thus:

4 In this Act. unless there is anything repugnant in the subject or context (a) 'youthful offender' means any boy who has been convicted of any offence punishable with transportation or imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898. and who at the time of such conviction or sentence was under the age of sixteen years.

It was held that it would not include an offence punishable with death, the reason being that, since the definition referred to an offence punishable with transportation or imprisonment. it meant an offence Punishable at the highest with transportation or imprisonment and would not take in an offence punishable with the penalty of death which is the most severe penalty and higher than the penalty of transportation or imprisonment. No doubt, there is some force in that line of reasoning. But, I think, for the reasons expressed by Sir Alladi Krishnaswami Iyer, and further supplemented by me, the better view is that the Madras Children Act, 1920 was intended to apply also to an offence punishable with death,

15. Though this is the main consideration to be borne in mind before considering the impact of Section 29-B of the Code of Criminal Procedure, which was introduced in 1923. on the provisions of the Madras Children Act, 1920. as it originally stood, it is necessary to consider briefly how. having intended to deal with all offences including an offence punishable with death, the Madras Children Act. 1920. sought to confer jurisdiction on the various courts mentioned in Section 4 of the Act. Section 4 of the Act, as it was enacted in 1920, read:

The powers conferred on courts by this Act shall be exercised only by- (a) the High Court, (b) a Court of Session. (c) a District Magistrate, (d) a Sub-Divisional Magistrate. (e) salaried Presidency Magistrate, (f) any Juvenile Court constituted under Section 36. and (g) any Magistrate of the first or second class specially authorised by the (The words 'Local Government' were replaced by the words 'Provincial Government' by the Adaptation Order of 1937. and the words 'State Government' were substituted for the words 'provincial Government' by the Adaptation Order 1950, but these changes make no difference, so far as the present discussion is concerned). Local Government to exercise all or any of such powers:

and may be exercised by such courts whether the case comes before them originally or on appeal.

Section 36(1), so far as material, read:

The Local Government may provide for the establishment in any district of one or more separate courts for the hearing of charges against children or young persons....

(The words 'Local Government' were replaced by the words 'Provincial Government' in 1937. and they were again altered as 'State Government', in 1950). The point to be noted is that Section 4 merely stated that the powers conferred on the courts by that Act shall be exercised by the Courts mentioned therein. It did not confer any power of trial as such on the courts enumerated in that section. For the power of trial we have to look elsewhere. So far the Courts, other than the Juvenile Court constituted under Section 36, were concerned, the power of trial was evidently meant to be regulated by the Code of Criminal Procedure. So far as the Juvenile Court constituted under Section 36 of the Act was concerned, Section 36 itself was meant to confer the power of trial because the wording was 'The Local Government may provide for the establishment in any district of one or more separate courts for the hearing of charges against children or young persons....' and that was supplemented by Section 4 and Section 23. which meant that the Juvenile Court constituted under Section 36 could try cases (that was what was meant by 'for the hearing of charges') and convict or acquit a child or young person, and, in the event of a conviction, might exercise the powers conferred under the Act (like sending the child or young person to the Senior Approved School, etc.). The further point to be noted is that, so far as the courts, other than the Juvenile Court, were concerned. Section 4 did not say that each of those courts could try any offence whatsoever. It would follow that these courts would be governed by Schedule II of the Code of Criminal Procedure on the question of what kind of offences any particular court could try. Thus a District Magistrate or a Sub-Divisional Magistrate, being only a Magistrate of the first class, could try only such offences as were enumerated in Schedule II of the Code of Criminal Procedure as triable by a Magistrate of the First Class. They could not try for instance a case triable exclusively by the Court of Session; i.e. they could not try a case of murder (section 302 I. P. C.) or rape (section 376 I. B O. This limitation, however, did not apply to the Juvenile Court constituted under Section 36, because no such limitation was imposed either under Section 4 or under Section 36. Thus the position was that, while the Juvenile Court could try any offence whatsover. including an offence punishable with death, the other courts could try only cases within the delimitation indicated by Schedule II of the Code of Criminal Procedure. I shall have to revert to this question later.

16. Having indicated (the true construction of the Madras Children Act. 1920, as it stood before Section 29-B of the Code of Criminal Procedure was enacted, we are now in a position to consider the impact of Section 29-B of the Code of Criminal Procedure on the Madras Children Act as it then stood. Section 29-B of the Code of Criminal Procedure read as follows:

Any offence, other than one punishable with death or transportation for life, committed by any person who, at the date when he appears or is brought before the court, is under the age of fifteen years, may be tried by a District Magistrate or a Chief Presidency Magistrate or by any Magistrate specially empowered by the local Government to exercise the powers conferred by Section 8, Sub-section (i) of the Reformatory Schools Act, 1897 or in any area in which the said Act has been wholly or in Part repealed by any other law providing for the custody, trial or punishment of youthful offenders, by any Magistrate empowered by or under such law to exercise all or any of the powers conferred thereby.

In construing this Section, it is necessary to know what the law was before it was enacted. Section 8 of the Reformatory Schools Act, which was in force, and in so far as it was relevant read:

8(1) Whenever any youthful offender is sentenced to transportation or imprisonment, and is, in the judgment of the Court by which he is sentenced, a proper person to be an inmate of a Reformatory School, the court may, subject to any rules made by the local Government direct that, instead of undergoing his sentence, he shall be sent to such a school and be there detained which shall be not less than three or more than seven years.

(2) The powers so conferred on the court by this section shall be exercised only by (a) the High Court, (b) a Court of Session, (c) a District Magistrate, and (d) any Magistrate specially empowered by the local Government in this behalf, and may be exercised by such courts whether the case comes before them originally or on appeal.

17. It will be seen that there was no provision in the Reformatory Schools Act, 1897. similar to Section 36(1) of the Madras Children Act. 1920, providing for the constitution of any separate Juvenile Court, as it is, called (which usually consists of a salaried Magistrate and two Honorary Magistrates, including ladies). It will be noted that Section 8 did not deal with the jurisdiction of the Courts mentioned in Sub-section (2) thereof, viz.. the High Court, the Court of Session, the District Magistrate or any Magistrate, to try offences. That question was meant to be dealt with by Schedule II of the Code, of Criminal Procedure. What Section 8 (D enacted was that after conviction, the competent court might sentence the youthful offender to transportation or imprisonment, but direct that, instead of undergoing the sentence, he shall be sent to the prescribed school to be detained there for a period between three and seven years. It also seems that not all the States had passed special Acts like the Madras Children Act, 1920. So far as I am able to gather, besides Madras, only one other State, viz.. Bengal, had passed such a special Act namely, the Bengal Children Act. 1922. I get this inferentially from the Madras Children (Amendment) Bill. 18 of 1936 (page 298 of the Fort St. George Gazette, dated 18th August, 1936) since only those two special local Acts are mentioned there. It was in this state of things power was conferred by Section 29-B of the Code of Criminal Procedure on courts other than a Court of Session, like a District Magistrate or a Chief Presidency Magistrate, to try an offence other than one punishable with death or transportation for life which could previously have been tried only by the Court of Session. Take for instance Section 312 I. P. C (miscarriage) punishable with imprisonment for three years ordinarily (and for seven years, if the woman be quick with the child). It was exclusively triable only by the Court of Session. It is not an offence punishable with death or transportation for life, and such a case could, after the enactment of Section 29-B of the Code of Criminal Procedure, be tried by the District Magistrate or the Chief Presidency Magistrate or a Magistrate empowered under Section 8 of the Reformatory Schools Act or the corresponding Section of the Local Act. if the accused was under the age of fifteen years. In this way Section 29-B of the Code of Criminal Procedure was an enabling provision and it is interesting to note that that was the object with which it was introduced as disclosed in the Statement of Objects and Reasons:

The existing procedure of committal to a Court of Session is lengthy and. often involves the prolonged detention of juvenile offenders as undertrial prisoners, although the offences generally committed by them seldom require to be so severely punished as to necessitate the intervention of a Sessions Court, the sentence or order eventually passed being often incommensurate with the time and energy expended upon a committal and sessions trial. It' is therefore proposed that offences of children, unless so serious as to be punishable with death or transportation for. life, should be triable by a District Magistrate, a Chief Presidency Magistrate, or by any Magistrate specially empowered to exercise the powers conferred by Section 8. Sub-section (1) of the Reformatory Schools Act, 1897.

18. Construed this way Section 29-B of the Code of Criminal Procedure would not in any way conflict with the provisions of the Madras Children Act. 1920, but would enlarge the powers of the courts other than the Court of Session mentioned in Section 4 of the Madras Children Act, 1920, if the accused was under the age of fifteen years. In concrete terms, as a result of Section 29-B of the Code of Criminal Procedure, a District Magistrate, a Sub-Divisional Magistrate, a salaried Presidency Magistrate and any Magistrate of the first of second class specially empowered by the Local Government (now State Government) to exercise all or any of the powers conferred by the Madras Children Act. 1920, might try any offence other than one punishable with death or transportation for life, if the accused was under fifteen. This meant that those courts could try for instance, an offence under Section 312 I. P. C. which otherwise would have been triable only by the Court of Session under Schedule II of the Code of Criminal Procedure. So far the Juvenile Court constituted under Section 36(1) of the Madras Children Act is concerned, it was not necessary to invoke Section 29-B of the Code of Criminal Procedure, because, as we have seen, the Juvenile Court could try any offence whatsoever, including one punishable with death or transportation for life. 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 by necessary implication meant that in respect of an offence punishable with death or transportation for life, it repealed the provisions of the earlier 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 any 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 instance the decision in Ramachandra Misra v. President, District Board. Ganjam : AIR1951Ori1 the decisions cited therein, and the passage from Maxwell emoted there:

Repeal by implication is not favoured...It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the statute book or, on the other hand, to effect so important a measure as the appeal of a law without expressing an mention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention. (Maxwell on Interpretation of Statutes. 9th Edition. Paae 173)

Similarly in Maxwell, Twelfth Edition, at page 191, is stated:

A later statute may repeal an earlier one either expressly or by implication. But repeal by implication is not favoured by the Courts ...If therefore earlier and later statutes can reasonably be construed in such a way that both can be given effect to, this must be done.

Our attention has not been drawn to any decision, nor have I been able to find any which has taken the view that Section 29-B of the Code of Criminal Procedure must be construed as repealing an earlier local law, like the Madras Children Act, 1920. There is however a decision of a Bench of the Calcutta High Court, which needs some examination. It is : AIR1932Cal487 . In that case a boy of thirteen or fourteen years was produced before one Mr. Mukherii, who had been appointed a Presidency Magistrate to preside over the Central Children Court, Calcutta, on a charge of culpable homicide (Section 304 I. P. C.) which is normally exclusively triable by a Court of Session, Mr. Mukerji made a reference to the High Court on two points, the first of which was whether the Court over which he was appointed to preside was competent to try cases exclusively triable by the Court of Session. The learned Judges of the High Court Quoted Section 29-B of the Code of Criminal Procedure and observed:

This section authorises the Magistrate in charge of the Central Children Court to try all offences, other than an offence punishable with death or transportation for life, and it therefore, in my opinion, clearly lays down, by implication, that an offence under Section 304 of the Indian Penal Code, which is punishable with transportation for life, and which is exclusively triable by the Court of Session, is not to be tried by the Magistrate in charge of the Central Children Court, The answer to the first Point referred to us must, therefore, be in the negative.

In the above passage reference was made only to Section 29-B of the Code of Criminal Procedure and not to any other provision of law. similar to Section 36 (D of the Madras Children Act. 1920. I find from page 298 of the Fort St. George Gazette dated 18th August, 1936, introducing the Madras Children Amendment Bill.. 18 of 1936 that three Acts are quoted for reference, viz., the English Children and Young Persons Act, 1933, the Bengal Children Act. 1922, and the Bombay Children Act 1924. The Library of the High Court has not beep able to supply me with the Bengal Children Act, 1922, and it is not known whether it contained a provision similar to Section 36(1) of the Madras Children Act, 1920. If it contained such a provision, it is not clear why the decision cited has not referred to it : and the authority of the decision would become doubtful, if there was such a provision. If. however, there was no such provision in the Bengal Children Act, 1922, and if the matter had to be decided solely on the wording of Section 29-B of the Code of Criminal Procedure, the decision would be right. As it is. the decision cannot be construed as an authority for the proposition that Section 29-B of the Code of Criminal Procedure was meant to repeal any earlier local law dealing with children.

19. On the other hand, there are some decisions. Mail Appalaswamy in re : AIR1934Bom211 );'> : AIR1936All675 which hold that Section 29-B of the Code of Criminal Procedure is only permissive and does not take away the jurisdiction of the Magistrate already existing under Schedule II of the Code of Criminal Procedure, No doubt, they are not direct authorities on the question whether Section 29-B of the Code of Criminal Procedure was meant to take away any previously existing jurisdiction under the Madras Children Act, 1920. but by analogy, they can be construed as authorities on that question as well.

20. The impact of Section 29-B of the Code of Criminal Procedure on the Madras Children Act, 1920. can therefore be summarised thus (1) before the enactment of Section 29-B of the Code of Criminal Procedure, a Juvenile Court constituted under Section 36 of the Madras Children Act could try any offence whatsoever including an offence punishable with death or transportation for life; for instance, it could try a case of murder. (2) So far as the other courts mentioned in Section 4 were concerned, their jurisdiction was delimited by Schedule II of. the Code of Criminal Procedure; in other words, they could try offences which they could try under the Schedule : (3) All those courts could exercise Powers under the Children Act. 1920, with the possible exception that in the case of a Magistrate of the first or second class mentioned in clause (g) of Section 4 the State Government may confer only some of the powers under the Act. (4) Those powers could be exercised whether the case came before the Courts originally or in appeal. (5) As a result of Section 29-B of the Code of Criminal Procedure the jurisdiction of the Magistrates mentioned in Section 4 of the Madras Children Act, 1920. became enlarged to the extent indicated in Section 29-B of the Code of Criminal Procedure; in other words, they could try any offence other than one punishable with death or transportation for life, which could previously be tried only by a Court of Session, if the accused was aged less than fifteen years. (6) But, if the accused was between fifteen and sixteen - years, their jurisdiction would still be limited by Schedule II of the Code of Criminal Procedure.

This position continued even after the amendment in 1958 (Act 37 of 1958) substituting the word 'imprisonment' for 'transportation' and also raisins the upper limit of case of a young person from sixteen to eighteen.

It follows that , in so far as it laid down that a Juvenile Court established under Section 36 of the Madras Children Act 1920, could try any offence whatsoever, including an offence punishable with death or imprisonment for life and that that position was not in any way affected by Section 29-B of the Code of Criminal Procedure, is good law.

21. The next question is whether, in a case where a juvenile is accused of having participated in a serious offence punishable with death or imprisonment for life, along with an adult, it is not desirable to avoid a conflict of decisions by ensuring that the juvenile also is tried by the Court of Session which would try the case against the adult. We are firmly of the opinion that the answer must be in the affirmative. In R. T. No. 92 of 1959, D/- 29-10-1959 (Mad) itself. Ramaswami and Anantanarayanan, JJ, indicated this. It may be recalled that in that case the second accused, who was a lad of about fourteen years, was jointly tried by the Sessions Judge along with the adult accused (accused 1 and 3) on a charge of murder (Section 302 read with Section 34 I. P. C.). though Section 38-B of the Madras Children Act, which had been introduced only recently, prohibited a joint trial. The Bench pointed out that if the juvenile were tried by the Juvenile Court and only the adults by the Court of Session, there would be conflict of decisions and that it was desirable to avoid it. In fact, they went to the extent of saving that it was desirable to have a joint trial, but keeping the juvenile away from the adult accused. Though, of course, that is not permissible in view of the prohibition of joint trial contained in Section 38-B, the observations show the necessity for avoiding a conflict of decisions. Further, it is desirable that in a serious case of an offence punishable with death or imprisonment, for life, a more experienced Court, like the Court of Session, tries that case against the juvenile as well. There can be no doubt about the jurisdiction of the Court of Session to deal with such a case, as seen from Section 4 of the Act which empowers the courts mentioned therein to exercise the powers under the Act, whether the case comes before them originally or in appeal. (We have underlined the word 'originally'). Somasundaram. J. also by an order D/- 22-3-1972 in Cr. R. C. No. 1092 of 1971 (Mad) directed the Sessions Judge to take cognizance of the offence against the juvenile and deal with him separately from the adult accused. The same procedure has been indicated by Maharajan. J., in Cr. R. C. No. 444 of 1972 (Mad), which I have already quoted. My learned brothers continue to have the same opinion. I also fully agree with them on this point.

22. The next question is how this objective is to be achieved. Here Rule of the Madras Juvenile Court Rules, 1930, would seem to stand in the way of the Court of Session trying a case against a juvenile. Those rules have been framed in exercise of the powers conferred by Sub-section (D and clause (n) of Sub-section (2) of Section 44 of the Madras Children Act. Those rules clearly show that they deal exclusively with the Juvenile Court established under Section 36(1) of the Act. In fact. Rule 2 defines the Court, for the purpose of these rules as the Juvenile Court established under Sub-section (1) of Section 36. The succeeding rules also proceed on the same basis. Rule 2 says:

When a Court has been established in any district, all cases referred to in Sub-section (D of Section 36 of the said Act in the whole or any part of that district, as the State Government may from time to time specify, shall be taken before and dealt with by such Court.

Section 44 (3) says that the rules made under that section shall be published in the Official Gazette and on such Publication they shall have the same effect as if enacted in the Act. If it is a rule validly made and is not ultra vires the Act, it would have the same effect as if enacted in the Act. But the question is whether the rule is valid. Maharajan. J. indicated in Cr. R. C. No. 444 of 1972 (Mad) that the rule was ultra vires, because that rule conferred exclusive jurisdiction on the Juvenile Court (established under Section 36(1) of the Act) to deal with all cases referred to in Sub-section (1) of Section 36. which, as we have seen, includes any offence whatsoever. In other words. Rule 8 purports to shut out the original jurisdiction of the courts other than the Juvenile Court, mentioned in Section 4. for example, the High Court, a Court of Session, a District Magistrate, a Subdivisional Magistrate, a salaried Presidency Magistrate. According to Rule 8, the Court of Session cannot try a case of murder against a child or young person, a District Magistrate cannot try even a case of simple hurt under Section 323 I. P. C. against a child or young person, and so on. Rule 8, as it stands, is opposed to Section 4 of the Act and is consequently ultra vires. In the form in which it stands, it has to be struck down. But, since it may be desirable to have cases against juveniles tried by the Juvenile Court established under Section 36 (D of the Act as far as possible Rule 8 may be amended by introducing the word 'ordinarily' between the words 'shall' and 'be taken before and dealt with by such Court.' That is to say, the rule can read thus:

When a Court has been established in any district, all cases referred to in Sub-section (1) of Section 36 of the said Act in the whole or any Part of that district, as the State Government may from time to time specify, shall ordinarily be taken before and dealt with by such Court.

If the rule is so amended, there will be no conflict between the rule and Section 4 and the rule will be valid. In what follows we proceed on the basis that without such an amendment the rule is ultra vires. This means that, where a juvenile is accused along with an adult of having committed an offence punishable with death or imprisonment for life, there would be no impediment to the Court of Session trying such a case against the juvenile subject to the provisions of Section 38-B of the Madras Children Act for-bidding a joint trial of the adult and the juvenile. Because of the prohibition against joint trial, the Court of Session will have to try the adult accused separately from the juvenile accused, that is to say, there will be two separate trials The Sessions Judge should not pronounce judgment in either case till the trials in both the cases are over. By adopting such a course the Sessions Judge or the Assistant Sessions Judge will, besides avoiding a conflict of decisions, also avoid any impression which might otherwise be created in the mind of either the adult accused or the juvenile accused that his case has been prejudged by the Judge. This is really what was indicated by Maharajan J. in Crl. R. C. 444 of 1972, already quoted. This would answer the difficulty expressed by Kailasam. J., to the following effect;

The view expressed that, the adult and the juvenile could be tried by the same Court not jointly but separately is not free from difficulty. If, in the earlier case, the Court finds the accused guilty the subsequent trial of the juvenile or the audit accused may cause an apprehension that the Judge had taken a view on the earlier case and his view will be coloured in the subsequent case.

23. The next sentence in the remarks of Kailasam, J., is as follows:

The observation of the learned Judge in paragraph 4 (of flap A) may not be in accordance with Section 38-B (1).

This has reference to Paragraph 4 of the decision in Cr. R. C. No, 444 of 1972 (Mad). In that case three persons were committed to take their trial before the Court of Session for offences under Sections 302 and 323 of the Indian Penal Code by the Sub-Magistrate. The Second accused was aged less than eighteen years. The Sessions Judge made a reference to quash the committal. In paragraph 4 of his order Maharaian. J. quashed the order of committal so far as the juvenile accused was concerned, and in paragraph 5 upheld the committal of the adult accused. He gives three reasons in paragraph 4 for quashing the order of committal against the juvenile accused, The third reason given is this:

In third place, Section 38-B(1) of the Madras Children Act directs that, notwithstanding anything contained in Section 239 of the Code of Criminal Procedure, 1898. or any other law for the time being in force, no child or young person shall be charged with, or tried for, any offence together with an adult. In this case the committing Magistrate has charged the second accused, a juvenile, with the offence of murder and simple hurt together with two adult accused and has thereby committed a violation of Section 38-B(1) of the Act.

Thus Maharajan, J., held that the procedure adopted by the Sub Magistrate was in violation of Section 38-B(1) of the Act. We are, therefore, unable to understand, with great respect, what Kailasam, J., meant by the remark, 'The observation of the learned Judge in para-graph 4 may not be in accordance with Section 38-B(1).'

24. Kailasam. J., then remarks as follows:

An Assistant Sessions Judge tries cases on committal only. He may be a Court under the Children Act to hear an appeal but the Court empowered to try is the Juvenile Court and when that Court has jurisdiction under the Act, how can the Assistant Sessions Judge (be) empowered to try the case as summons case ?

These remarks will have to be understood with reference to what was indicated by Maharaian. J. After quashing the order of committal of the juvenile accused, and upholding the committal of the adult accused, Maharaian. J., proceeded to point out that . while holding that it was competent for the Juvenile Court to try a juvenile even for an offence triable exclusively by a Court of Session, did not mean to hold that the Court of Session itself would not have jurisdiction to try a juvenile. Maharaian. J., pointed out that under Section 4 of the Madras Children Act. the original jurisdiction of the Court of Session remained unimpaired. He further pointed out that Rule 8 which conflicted with Section 4 was ultra vires. He then indicated the desirability of the same Sessions Judge trying both the case against the adult accused and the case against the juvenile accused but separately.

25. The effect of the judgment of Maharajan, J., is therefore that the Sessions Judge or the Assistant Sessions Judge can straightway take the case against the juvenile without any order of committal and try him. but separately from the adult accused. Kailasam, J., in the remarks quoted questions the validity of the view that a Sessions Judge or an Assistant Sessions Judge can try a case against a juvenile without an order of committal, This is the meaning of the sentence, 'An Assistant Sessions Judge tries cases on committal only.' Kailasam, J., had evidently in mind Section 193 of the Code of Criminal Procedure, which says:

(1) Except as, otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf.

Before dealing with the question whether Section 193 of the Code of Criminal Procedure applies at all. I may point out that learned Judges of this Court sitting singly, have uniformly proceeded on the view that a Court of Session can take cognizance of an offence against a juvenile without an order of committal. Vide the decision of Krishnaswamy. Reddy, J., D/- 2-1-1967 in Cr. R. C. No. 1440 of 1966 (Mad), Ravindran (Juvenile)-Petitioner (Accused), the order of Somasundaram, J., dated 21-3-1972 in Cr. R. C. No. 1092 of 1971 (Mad), Thamarai & 4 others-Petitioners (Accused), the decision of Maharaian. J., in Cr. R. C. No. 444 of 1972 (Mad), Karalan and the decision of Somasundaram, J., D/- 12-2-1973 in Cr. R. C. No. 1118 of 1972 (Mad) Balu-Petitioner (Accused). Krishnaswamy Reddy. J., and Maharajan, J., rely on Rule 7 of the Madras Juvenile Court Rules, 1940, which says;

The procedure laid down in the Code of Criminal Procedure, 1898 for the trial of summons cases shall be observed by the Court in the trial of all cases, whether summons cases or warrant cases.

Krishnaswamv Reddy. J., refers to and relies on the decision in . In that case the first question which was considered Was whether the Juvenile Court which convicted the youth under Section 37G of the Indian Penal Code was justified in following the summons case procedure as prescribed in rule 7 of the Madras Juvenile Court rules. The learned Judges answered this Question in the affirmative. Their reasoning was that under Section 4 (v) and (w) of the Code of Criminal Procedure, there were only two kinds of cases, summons case and warrant case, a warrant case being one relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding one year, and a summons case being one relating to an offence and not being a warrant case, Thus even an offence punishable under Section 302 or 376 of the Indian Penal Code has to be technically classified as a warrant case. Therefore Rule 7 of the Juvenile Court Rules would take within its ambit even an offence punishable under Section 302 or Section 376 of the Indian Penal Code. If I may say so with respect, this reasoning is certainly sound, but, as pointed out by Maharajan. J. during the arguments, and as observed already. Rule 7 applies only to a Juvenile Court established under Section 36 of the Act, because the whole set of rules including Rule 7, deals only with a Juvenile Court, established under Section 36 of the Act. But. as pointed out by the learned Public Prosecutor, there is a counterpart to Rule 7 of the Juvenile Court Rules, in Rule 3 of the Madras Children Rules, 1940, which is to the following effect:

The procedure prescribed by the Code of Criminal Procedure. 1898. for the trial of summons cases shall be followed by the Court in the trial of all cases, whether summons cases or warrant cases:Provided that in cases where no appeal lies, the procedure prescribed by Sections 263 and 265 of the said. Code may be followed by a Court outside the Presidency Town.

This rule applies to all the courts mentioned in Section 4 of the Madras Children Act, other than a Juvenile Court established under Section 36 of the Act : in particular, it would include a Court of Session. Since it says that the procedure prescribed for the trial of summons cases should be followed, by necessary implication, it means that it dispenses with an enquiry under Chapter XVIII of the Code of Criminal Procedure, enabling the Court of Session to take cognizance even of an offence under Section 302 of the Indian Penal Code without an order of committal as a Court of original jurisdiction,

26. The all important question, therefore, is whether, in view of Rule 3 of the Madras Children Rules, 1940, it cart be said that Section 193 of the Code of Criminal Procedure is not applicable. The answer to this question depends upon the wording of Section 1 (2) of the Code of Criminal Procedure. It says that it extends to the whole of India, 'but, in (the absence of any specific provision to the contrary, nothing contained herein shall affect...any special form of procedure prescribed by any other law for the time being in force.' Now, the words, 'in the absence of any specific provision to the contrary' can reasonably be construed as meaning 'in the absence of any specific provision to the contrary in any other law for the time being in force.' In other words, in the absence of any specific provision to the contrary in the Madras Children Act, 1920, nothing contained in the Code of Criminal Procedure shall affect any special form of procedure prescribed by the Madras Children Act of 1920 in Rule 3 of the Madras Children Rules. 1940. There is no specific provision in the Madras Children Act to the effect that Section 193 of the Code of. Criminal Procedure would apply. On the other hand. Rule 3 of the Madras Children Rules implies that Section 193 of the Code of Criminal Procedure requiring an order of committal is meant to be dispensed with, though it would have been better if the idea had been explicitly express,, Reading Section 1 (2) of the Code of Criminal Procedure along with Rule 3 of the Madras Children Rules. 1940. it seems to me that Section 193 of the Code of Criminal Procedure will not affect the special form of procedure prescribed by Rule 3 of the Madras Children Rules, 1940. It follows that there need not be an Order of committal to the Court of Session and the Court of Session can straightway take cognizance of a case triable by it. in so far as a juvenile is concerned. This answers the remarks of Kailasam, J., that an Assistant Sessions Judge tries cases on committal only.

27. The next observation of Kailasam, J., is:

He may be a Court under the Children Act to hear an appeal, but the Court empowered to try is the Juvenile Court and when that Court has jurisdiction under the Act. how can the Assistant Sessions Judge (be) empowered to try the case as summons case?

We are not sure that we have gathered the precise meaning of the learned Judge's remark, but, if the remark implies, in any way, that an Assistant Sessions Judge has only an appellate jurisdiction. with respect, it would not be correct, because firstly, an Assistant Sessions Judge is also a Court of Session and has sot original jurisdiction under the Act as pointed out by Kailasam. J., himself in an earlier decision of his in-Andy Am-balam-Appellant-C. A. No. 825 of 1963 Dt/- 28-9-1964 (Mad) and secondly, in practice, an Assistant Sessions Judge does not hear appeals in Criminal cases and it is only the Sessions Judge who hears appeals in criminal cases. Kailasam. J., also seems to ask, how can the Assistant Sessions Judge try the case as summons case? The answer to this is to be found in Rule 3 of the Madras Children Rules. 1940, which requires him to try the case as a summons case.

28. The result of my discussion so far may be summed up thus. Where a juvenile alone is accused of an offence, the case against him will, as hitherto, be tried by the Juvenile Court established under Section 36 (1) of the Act even if the offence is one punishable with death or imprisonment for life. But where he is accused of having committed an offence punishable with death or imprisonment for life, along with an adult accused, it is desirable to avoid a conflict of decisions by the Juvenile Court and the Court of Session. To achieve this purpose, the Police Officer will file the charge-sheet against the adult accused in the Court of the concerned Sub-Magistrate empowered under Chap. XVIII Criminal Procedure Code to hold an enquiry, and the charge-sheet against the juvenile in the Court of Session. The Court of Session should hold up the trial of the juvenile till the enquiry by the Sub-Magistrate is over. If an order of committal is made in respect of the adult accused, the Court of Session will try the case against the adult accused separately from the case against the juvenile accused, one after the other. In respect of the juvenile accused, the summons case procedure should be adopted. Judgment should not be pronounced in either case till both the trials are over.

If the enquiry against the adult accused results in an order of discharge, the Court of Session may straightway try the juvenile accused. But, if he wants, he may wait for a short time to see whether any revision petition is filed against the order of discharge.

29. We may add that, as a result of the observations in R. T. No. 92 of 1959. the Government in 1963 proposed some amendments abolishing the prohibition of joint trial of an adult and a juvenile in grave cases of murder, dacoity, etc. and modifying Section 38-B(1) of the Madras Children Act to that effect. Vide their letter No. 150749-pr. III/59-12 dated 30th January. 1961. The Honourable Judges of this Court on the administrative side agreed to the above suggestions (P. Dis. 242 of 1961). Thereafter the Government suggested some draft amendments which again were accepted by the Honourable Judges of this Court on the administrative side. (P. Dis. 540 of 1965). But the matter seems to have been dropped there. If felt expedient, the matter may be re-opened. But what we are now suggesting is within the frame work of the existing law which (section 38-B) forbids a joint trial. Our suggestion is confined to major offences punishable with death or imprisonment for life. In respect of other offences, the Juvenile Court can continue to try them and any possible conflict of decisions may be ignored because, if we were to avoid a conflict of decisions for all offences, the. Juvenile Court may not have much work, and we shall have to draw the line somewhere.

30. In accordance with the above views, in Cr. M. R No. 3957 of 1972. we direct J. R No. 264 of 1972. pending on the file of the Juvenile Court. Tirunelveli, to be transferred to the Court of Session. We make this direction in exercise of the Dowers conferred by Section 526(1)(e) of the Code of Criminal Procedure, because we consider it expedient for the ends of justice. This Sessions Judge should not pronounce judgment in that case or in S. C. No. 112 of 1972 till he is in a position to pronounce judgment in both the cases.

31. Similarly, in Cr. M. P. No. 996 of 1973. we direct J. C. No. 239 of 1972 pending on the file of the Juvenile Court, Tirunelveli, to be transferred to the Court of Session, to be tried by the Assistant Sessions Judge who tries S. C. No. 119 of 1972. The Assistant Sessions Judge should not pronounce judgment in either case till he is in a position to pronounce judgment in both the cases,

32. If there are similar cases, the Sessions Judge or the District Magistrate concerned should make a reference to this Court for transfer of the case from the Juvenile Court to the Court of Session.


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