In Re: Karalan and Others

Maharajan, J.—This reference u/s 438 Crl. P. C,, has been made by the Additional Sessions Judge, Tiruchirapalli under the following circumstances.

In P. R. C. No. XVI of 1971 on the file of the Sub Magistrate III, Tiruchirapalli, three accused were committed to take their trial before the Sessions Court for offences under Sections 302 and 323 I. P. C. At the instance of the Additional Sessions Judge, A-2 Periaswami was radiologically examined and found to be below 18 years and above 17 years, and consequently a "young person" within the meaning of S. 3 of the Madras Children Act. The Sessions Judge, while pointing out that the committal of the juvenile accused is illegal, because it is contrary to the provisions of the Madras Children Act, has expressed his doubt that the committal of the adult accused is also liable to be quashed, because they have been jointly committed along with the juvenile accused.

So far as the committal of the juvenile accused is concerned, the reference of the Sessions Judge has to be accepted. There are three grounds upon which I am constrained to do so. In the first place, under R. 7 of Madras Juvenile Court Rr. 1930, framed by the State Government, u/s 44 of the Madras Children Act, it has been prescribed that the procedure laid down under the Criminal Procedure Code, 1898, for the trial of summons cases shall be observed by the court in the trial of all cases, whether summons or warrant cases. Summons case procedure as prescribed in Chapter XX of the Crl. P. C, does not contemplate any preliminary enquiry of the kind, prescribed in Ch. 17 Crl. P. C. The Juvenile accused in this case must, therefore, have been straightaway brought before the forum prescribed under the Madras Children Act instead of being put through the process of a preliminary enquiry by the committing Magistrate. In the second place, S. 4 of the At provides that 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) a salaried Presidency Magistrate; (f) any Juvenile Court constituted u/s 36and (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. As it is admitted that the committing Magistrate in this case has not been specially authorised by the State Government to exercise all or any of the powers under the Act, his order committing the juvenile accused is illegal. In the third place, S. 38(B)(1) of the Madras Children Act, directs that notwithstanding any thing contained in S. 239 Crl. P. C, 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 of fence of murder and simple hurt together with two adult accused and has thereby committed a violation of S. 38(B)(1) of the Act.

As regards the legality of the committal of the adult accused, the doubt that has assailed the learned Sessions Judge is without substance. S. 38(B)(1) of the Act places an embargo only upon a juvenile being charged with or tried for any offence along with an adult. There is nothing in the section which interdicts an adult being charged with or tried for any offence together with a juvenile. There is, therefore, no ground for quashing the committal of accused 1 and 3. I accept the reference partially and direct that the committal of the second accused alone be quashed.

It is pointed out by Sri B. Sriramulu, whose assistance as amicus curiae I must acknowledge with appreciation, that in his reference, the learned Sessions Judge has misconceived the effect of a Division Bench ruling of this Court in Antony v. State 1960 M.W.N. Crl. 59. I am told at the Bar that this misconception is shared by some of the Sessions Judges. All that the Division Bench held was that it is competent for a juvenile court to try a juvenile even for offences exclusively triable by a court of session. There is nothing in that decision to warrant the view of the learned Sessions Judge that the juvenile court alone can try a juvenile for offences exclusively triable by a court of session.

S. 4 of the Act, which I have already quoted, expressly retains the jurisdiction of the High Court, Court of Session, District Magistrate, Sub-Divisional Magistrate, salaried Presidency Magistrate and any Magistrate of the First or Second Class specially authorised by the State Government to try a juvenile accused. No doubt, that section confers upon the juvenile court concurrent jurisdiction to try a juvenile. But that does not impair the jurisdiction of the ordinary criminal courts in that behalf. On the other hand, the jurisdiction of the ordinary criminal courts enumerated in that section is expressly reiterated. The only difference is that when the ordinary criminal court tries a juvenile, it must be in an atmosphere of easy informality and in accordance with the provisions laid down in the Madras Children Act relating to procedure and punishment.

Unfortunately, some confusion has been caused by R. 8 of the Madras Juvenile Court rules, which prescribes that when a court (Juvenile court) has been established in any district, all cases referred to in Sub-section (1) of S. 86 of the said Act in the whole or any part or parts of that district, as the local Government may from time to time specify, shall be taken up and dealt with by such courts. This rule appears to confer upon the juvenile court an exclusive jurisdiction to try the juvenile and to shut out the concurrent jurisdiction which the ordinary criminal court would undoubtedly have u/s 4 of the Madras Children Act. The question arises whether R. 8 is valid. It is S. 44 of the Madras Children Act which empowers the State Government to make rules and that too for the limited purpose of carrying into effect the provisions of the Madras Children Act. R. 8 framed in pursuance of this power not only fails to carry out the purpose of the Act but also is destructive of and incompatible with S. 4 of the Act, which, as I have already said, confers concurrent jurisdiction upon the High Court, Court of Session, District Magistrate etc. Clauses (a) to (r) of Sub-section (2) of S. 44 enumerate the matters in respect of which the State Government is empowered to frame rules. None of Clauses (a) to (r) empowers the rule making authority to alter or modify the provisions of the main enactment conferring concurrent jurisdiction upon the ordinary criminal courts. Clause (r) of Sub-section (2) of S. 44, no doubt empowers the rule making authority to frame rules relating to the procedure to be adopted in juvenile courts and R. 7, which says that summons case procedure shall be observed in the trial of juvenile is certainly intra vires. But R. 8 goes beyond the competence of the rule making authority and curtails what the main enactment itself has expressly prescribed, namely, that the ordinary criminal courts mentioned in S. 44 shall have concurrent jurisdiction to try juveniles. I therefore hold that R. 8 of the Madras Juvenile court rules is ultra vires the powers of the rule-making authority and must therefore be struck down as void.

The learned Additional Public Prosecutor says that owing to a misconstruction of the legal position, most of the Sessions Judges are refusing to try juveniles even in cases where they have participated in offences jointly with adult and consequently, conflict of findings between the Sessions Court trying the adult accused and the juvenile court trying the juvenile co-accused is of frequent occurrence. 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 juveniles, 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, instill 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.