1. This is a reference under Section 432, Criminal P.C. It has been made by Mr. B. K. Mukherji, who was appointed a Presidency Magistrate to preside over the Central Children Court Calcutta, established under Notification No. 9524-J, dated 18th November 1929, for the town of Calcutta, the suburbs of Calcutta and some other areas near about Calcutta including the Municipality of Howrah.
2. One Lakhi Sahu alias Kahu, a boy of 13 or 14, was produced before Mr. Mukherji on a charge of culpable homicide under Section 304, I.P.C., (an offence which is exclusively triable by a Court of Session) alleged to have been committed in Howrah.
3. The two points which have been referred to us for opinion are: (1) Is the Court over which Mr. Mukherji was appointed to preside competent to try cases exclusively triable by the Court of Session; and (ii) If that Court is not competent to try the charge then to which Court of Sessions should it commit the case, i.e., whether to the Court of Session at Howrah or the High Court Sessions.
4. As regards the first point, Section 29-13, Criminal P. C, which came into force on 1st September 1923, seems to me to afford a sufficient answer. Section 29-B says that 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 15 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8, Sub-section (1), Reformatory Schools Act, 1897, or in any area in which the said Act has been wholly or in part repealed by any other law providing for the custody, trial or punishment of youthful offenders by any Magistrate empowered by or under such law to exercise all or any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. This section authorizes 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, I. P. C, 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.
5. As regards the second point referred to us, the answer is to be found from Section 177 of the Code Section 177, Criminal P. C, lays down that every offence shall be tried by a Court within the local limits of whose jurisdiction it was committed. The offence in the present case was committed in the local limits of the jurisdiction of the Sessions Court of Howrah, and that being so it must he tried by that Court under the provisions of that section. The answer to the second point referred to us will therefore be that the commitment, if it is to be made, should be made not to the High Court Sessions but to the Sessions Court at Howrah.
6. I agree.