Sessions Judge vs Perumal and Another and The Additional Sessions Judge

Venkataraman, J.—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 u/s 302 read with Section 34 or Section 302 read with Section 109, Indian Penal Code. At the

time of the filing of the charge-sheet Pandi was less than eighteen years 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 1972. 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 u/s 302

read with Section 34, Indian Penal Code. The case was taken on file by the Court of Session as S.C. No. 112 of 1972. Charges u/s 302, read

with Section 34 or in the alternative u/s 302 read with Section 109, Indian Penal Code were framed. The trial of that case is over and the case is

pending delivery of judgment.

It was at this stage the learned Sessions Judge made this reference to transfer J.C. No. 264 of 1972 from the file of the Juvenile Court to the

Court of Session to be tried by the Sessions Iudge, before pronouncing judgment in S.C. No. 112 of 1972. He has adopted this course on the

basis of the judgment of Maharajan, J., dated 22nd June, 1972 in Crl.R.C. No. 444 of 1972--Keralan In re (1972) L.W. (Crl.) 195. 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,

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.

In Crl. M.P. 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, Indian Penal Code 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 P.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 fudge for trial. The Sub-Inspector of Police filed a separate charge sheet under Sections 450 and 376, Indian Penal

Code, against the juvenile in the Juvenile Court and it was taken on file as J.C. No. 239 of 1972. The trial is yet 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.C. No. 444 of 1972. 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 Maharajan, J., extracted above, and expressed himself as follows : --

The decision in Crl.R.C. No. 444 of 1972 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 or 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 Session 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) came up before Kailasam, J., he directed it to be posted before a

Bench. That was also posted before us (Maharajan, J. and myself).

Maharajan, 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 age 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 XXIII) 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 u/s 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.

In R.T. No. 92 of 1959 dated 29th October, 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 Ananthanarayanan,

JJ.) held that, in view of Section 4 (see the word, ""originally"" italicised 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 discretion that he should be detained in the Senior Approved School, Chingleput.

The above decision is not reported. The same learned Judges held, a few days later, on 6th November, 1959, In In Re: Anthony alias

Bakthavatsalu, that a Juvenile Court established u/s 36 of the Act had jurisdiction to try and convict a juvenile of an offence u/s 376, Indian Penal

Code (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.

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 II and the general scheme of the Code of Criminal Procedure. In this context learned Counsel for the appellant draws our

attention to Section 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. Narayanaswamy) 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 punishable 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 Lakhi Sahu (Kanu) Vs. Emperor, . where, with reference to an offence punishable u/s 304,

Indian Penal Code 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'' Procedure Code, Section 6, Criminal Procedure Code 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 (IV of

1920). It is important to note that u/s 1(2), Criminal Procedure Code 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.''

''Besides 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 Procedure Code and Section 6, Criminal Procedure Code 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

juvenile 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 (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 Lakshi Narayan Das v. The

Province of Bihar (1949) F.C.R. 693 : AIR 1950 F.C. 59 : 1950 S.C.J. 32 : (1950) 1 M.L.J. 760. 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 Procedure Code and Section 6,

Criminal Procedure Code. Section 29-B, Criminal Procedure Code, 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.

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 Anthony v. State (1960) M.W.N. 59 : AIR 1960 Mad. 308. might have to

be overruled; Maharajan, J., was inclined to agree with me. Thereupon my Lord the Chief Justice was pleased to constitute a Full Bench,

consisting of Maharajan, J., Somasundaram, J., and myself.

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 XVIII of 1923). Act XVIII of 1923 was published in the Gazette of

India on 14th April. 1923. Section 164 of Act XVIII 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 Jnanadasundari Shaha Vs. Madhabchandra Mala, 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 29th June, 1920 and Section 29-B of the Code of Criminal

Procedure came into force only on 1st September, 1923.

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 29th June, 1920 and 1st September, 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."" As a result of the amending Act XXVI

of 1955 (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 Vs. State of Madhya Pradesh, . Certain consequential amendments in the Madras

Children Act were effected by Madras Act XXVIII 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 punish able with death, like Section 302, Indian Penal Code. Similarly Section 23 read :

(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, Indian Penal Code) 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 Iyer). It is necessary to

reproduce in full the reference of the Government and the opinion of the Advocate-General :

I

(G.O. 1175, Home Department, dated 30th June, 1936).

(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 u/s 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 u/s

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 u/s 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 (1), 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 u/s 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.

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 released 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 prejudice 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) (q) indicate a committal for trial to the Court of Session by a Magistrate duly empowered to hold the

preliminary enquiry under Chapter 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 eighteen 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 twenty-four 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 yet 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,

u/s 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 reefing to a procedure of committal to the Court of section under

Chapter XVIII of the Code of Criminal Procedure. 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) and (q) 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 Chapter XVIII of the Code of Criminal Procedure. 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 18th December, 1917, the Report of the Select Committee is at pages 1213-1216, Part IV of the Fort

St. George Gazette, dated 26th August, 1919, and the proceedings of the Council are at page 6g5, Part IV of the Fort St. George Gazette, dated

15th March, 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.

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 for trial to the

Court of Session under Chapter XVIII of the Code of Criminal Procedure. Leaving out Sections 20 and 44 (1) and (2) (q), there is nothing else in

the Act to compel us to bold that an offence punishable with death was meant to be excluded from the purview of the Madras Children Act.

At this stage it is necessary to point out there is a Full Bench decision of the Madhya Pradesh High Court in Sibbu Munnilal Vs. State of

Madhya Pradesh, taking a contrary view. It was construing Section 4 of the Reformatory Schools Act, 1897. As locally amended, it ran thus.

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 u/s 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 in ended to apply also to an offence punishable with

death.

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 u/s 36, and (g) any Magistrate of the first or

second class specially authorised by the 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.

(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.) 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 as Courts, other than the Juvenile Court constituted u/s 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 u/s 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 u/s 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 offence 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, Indian Penal Code) or rape (Section 376, Indian Penal

Code). This limitation, however, did not apply to the Juvenile Court constituted u/s 36, because no such limitation was imposed either u/s 4 or u/s

Thus the position was that, while the Juvenile Court could try any offence whatsoever, 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.

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 (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.

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 :

(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.

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 (1) 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, XVIII 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, Indian Penal Code, (miscarriage) punishable with imprisonment for three years ordinarily (and for

seven years, if the woman be quick with he 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 u/s 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 under-trial

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.

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 or 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 of transportation for life, if the accused was under fifteen. This meant that those Courts

could try for instance, an offence u/s 312, Indian Penal Code, which otherwise would have been triable only by the Court of Session under

Schedule II of the Code of Criminal Procedure. So far as the Juvenile Court constituted u/s 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 c f

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 u/s 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 Rama Chandra Misra Vs. President,

District Board, . the decisions cited therein, and the passage from Maxwell quoted 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 statue book or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention 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, page 173).

Similarly in Maxwell, Twelfth Edition, at page, 191, it 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...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 Emperor v Lakhi Sahu ILR (1932) Gal. 856 : AIR 1032 Cal. 482. In that

case a boy of thirteen or fourteen years was produced before one Mr. Mukherji, who had been appointed a Presidency Magistrate to preside

over the Central Children Court, Calcutta, on a charge of culpable homicide (Section 304, Indian Penal Code) which is normally exclusively triable

by a Court of Session. Mr. Mukherji 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 u/s 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 (1) of the Madras Children Act, 1920. I find from page 298 of the Fort St. George Gazette dated 28th August, 1936,

introducing the Madras Children Amendment Bill, XVIII 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 been 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.

On the other hand, there are some decisions, Maji Appala Swamy, In re (1932) M.W.N. 1076. Emperor v. Natvarlal Nagindas 33 Bom.L.R.

312 : AIR 1931 Bom. 198. Emperor v. Jalal Dhondibhal 36 Bom.L.R. 435 : AIR 1934. Mad. 211. and Onkar Nath and Another Vs. Emperor,

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 were 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.

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 u/s 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 (XXXVII of 1958) substituting the word ""imprisonment"" for ""transportation"" and

also raising the upper limit of age of a young person from sixteen to eighteen.

It follows that Anthony v. State (1960) M.W.N. 59 : AIR 1960 Mad. 308. in so far as it laid down that a Juvenile Court established u/s 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.

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

dated 29th October, 1959, 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 Indian Penal Code), 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 saying 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 under lined the word ''originally''). Somasundaram, J. also by an order dated 22nd March, 1972 in Cr.R.C. No. 1092 of 1971 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, which I have already quoted. My learned brothers continue to have the same

opinion. I also fully agree with them on this point.

The next question is how this objective is to be achieved. Here Rule 3 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 (1)

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 u/s 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 (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 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, that the rule was ultra vires, because that rule conferred

exclusive jurisdiction on the Juvenile Court (established u/s 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 u/s 323 Indian Penal Code, 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 u/s 36 (1) 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 Child en Act forbidding a joint trial of the adult and the juvenile. Because of the

prohibition against joint trial, the Court of Sessions 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 Cr.R.C. No. 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 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 next sentence in the remarks of Kailasam, (sic) is as follows :

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

This has reference to paragraph 4 of the decision in Cr. R. G. No. 444 of 1972. In that case three persons were committed to take their trial

before the Court of Sessions for offences under Sections 302 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 Maharajan, 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 the 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 paragraph 4 may not

be in accordance with Section 38-B (1).

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 under stood with reference to what was indicated by Maharajan, J. After quashing the order of committal of the

juvenile accused, and upholding the committal of the adult accused, Maharajan, J., proceeded to point out that Anthony v. State (1960) M.W.N.

(Cr.) 59 : AIR 1960 Mad. 308. 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, Maharajan, J., pointed out

that u/s 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.

The effect of the judgment of Maharajan, J., is therefore that the Sessions Judge or the Assistant Sessions Judge can straightaway 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., dated 2nd January, 1967 in Cr. R. C. No. 1440 of 1966, Ravindran

(Juvenile)--Petitioner (Accused), the order of Somasundaram, J., dated 21st March, 1972 in Cr. R. C. No. 1092 of 1971, Thamarai and 4

others--petitioners (Accused), the decision of Maharajan, J., in Cr.R. C. No. 444 of 1972--Karalan and others--petitioners (Accused)--and the

decision of Somasundaram, J., dated 12th February, 1973 in Cr.R.C. No. 1118 of 1972--Balu-Petitioner (Accused). Krishnaswamy Reddy and

Maharajan, JJ., rely on Rule 7 of the Madras Juvenile Court Rules, 1930, 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.

Krishnaswamy Reddy, J, refers to and relies on the decision in Anthony v. State (1960) M.W.N. (Cr.) 59 : AIR 1960 Mad. 308. In that case the

first question which was considered was whether the Juvenile Court which convicted the youth u/s 376 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 u/s 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 u/s 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 u/s 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 u/s

36 of the Act, because the whole set of rules including Rule 7, deals only with a Juvenile Court, established u/s 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 u/s 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 u/s 302 of the Indian Penal Code without an order of committal as a Court of original jurisdiction.

The all important question therefore, is whether, in view of Rule 3 of the Madras Children Rules, 1940, it can 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 Sessions and the Court of Session can straightaway 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.

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, Assistant Sessions Judge is also a Court of

Session and has got original jurisdiction under the Act (as pointed out by Kailasam, J., himself in an earlier decision of his in--Andy Ambalam-

Appellant-C.A. No. 8a5 of 1963 (dated the 28th September, 1964) 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.

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 u/s 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 Chapter XVIII of the Code of Criminal Procedure 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 Sessions 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 straightaway 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.

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.No. 242 of 1961). Thereafter the Government suggested some draft amendments which

again were accepted by the Honourable Judges of this Court on the administrative sidle. (P.Dis.No. 540 of 1965). But the matter seems to have

been dropped there. If felt expedient, the matter may be reopened. 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.

In accordance with the above views, in Cr. M. P. No. 3957 of 1972, we direct J.C. 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 powers conferred by Section 526 (1) (e) of

the Code of Criminal Procedure, because we consider it expedient for the ends of justice. The 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.

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 Session 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.

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.