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Judgment
N. Arumugham, J.—This reference is directed against the committal order passed by the Judicial Second Class Magistrate, Thirumayam
made in P.R.C.10 of 1986 dated 29.12.1986, committing the juvenile accused, the second Respondent herein, for trial by the Sessions Judge, for
the offences under Sections 147, 323 and 302 read with 149 Indian Penal Code.
The accused by name, Nagarajan, then a juvenile, in Sessions Case No. 3 of 1987 of the file of the District and Sessions Judge, Pudukkottai,
was committed to the Court of Session for trial for the offences under Sections 147,323 and 302 read with 149 Indian Penal Code. The
Prosecution case is that on 1.5.1986 at about 7-30 A.M. at K. Palampatty village in front of the house of one Nanni Muthiriyar the accused being
a member of an unlawful assembly formed along with four others, caused simple hurt to the witness by name Rajendiran son of Suppakkonar of K.
Palampatty and in prosecution of the said common object of the said assembly, committed the murder of one Chinnathal, wife of the said Suppa
Konar. The accused/2nd Respondent herein was arrested on 1.5.1986 at 4.00 P.M. and subsequently he was released on bail by the Sessions
Judge in Crl.MP. No. 400 of 1986 on 13.5.1986 and in pursuance of that, he was let off since 15.5.1986. After the investigation by the first
Respondent the final report against the juvenile accused and four others was filed before the Judicial Second Class Magistrate, Thirumayam for the
offences above referred to on 8.10.1986. The Prosecution claimed that the then age of the juvenile accused was 16 years.
The Judicial Second Class Magistrate Thirumayam took up the case on file in P.R.C.9 of 1986 against all other four accused and split up the
case against the juvenile accused as P.R.C.10 of 1986 on 28.10.1986 and accordingly, he furnished the copies of the documents to them and
committed the other four adult accused in P.R.C.9 of 1986 to have the trial before the Sessions Judge, Pudukkottai by passing the committal order
on 29.10.1986 and that case was taken on file by the Sessions Judge as S.C.2 of 1987 of 6.1.1987. Regarding the juvenile accused, learned
Judicial Second Class Magistrate, Thirumayam referred him for the examination of the Radiologist, Government Hospital, Pudukkottai to ascertain
his age and accordingly, it was found that he was aged above 15 years and below 16 years. After having furnished the copies of the documents to
the juvenile accused, the Radiologist by name Dr. R. Srinivasan was examined by the Judicial Second Class Magistrate as Court Witness, C.W.1
and marked the report of the doctor as Ex.P-1 the working sheet as Ex. P. 2 and also the age certificate as Ex. P-3 besides M.O.I series X-Ray
films. Considering the evidence above referred to, the learned Judicial Second Class Magistrate found that the juvenile accused was running 16
years and passed the order to that effect on 22.12.1986.
On 29.12.1986, the juvenile accused was committed to face the trial before the District and Sessions Judge, Pudukkottai in P.R.C. 10 of 1986
and accordingly, the said case was taken on file before the Sessions Court, Pudukkottai in S.C.3 of 1986 on 6.1.1987. On making appearance of
all the accused in two Sessions Cases, viz., S.C.2 and 3 of 1987, learned Sessions Judge, on a perusal of the records, found the following on
20.1.1987:
On perusal of records, this Court felt on 9.1.1987 that the committal order passed against the said Juvenile accused by the Judicial II Class
Magistrate, Thirumayam in P.R.C. 10 of 186 is not legally correct and is not proper. Both the Public Prosecutor, Pudukkottai and the counsel
appeared on behalf of the said juvenile accused moved for adjournment to argue the case on this aspect. So, both the cases (S.C.2/87 and 3/87)
were adjourned to 20.1.1987. On 20.1.1987, arguments of both sides on this aspect were heard in S.C.3/87. In S.C.2 1987 both sides agreed to
proceed with the trial and so the said S.C. No. 2/87 was adjourned to 23.1.1987 for framing charges.
In view of the fact that the learned Magistrate had fixed the age of the juvenile accused in S.C.3/87 as 16 years, the said accused is an young
person coming under the definition of Madras Children Act. As such this Court feels that the committal order passed in P.R.C. No. 10/86 by the
learned Judicial Second Class Magistrate, Thirumayam may not be in order. The further proceedings of the trial in this Court regarding the juvenile
accused may prove to be an illegality.
The juvenile accused in S.C.3/87 (P.R.C. No. 10/86) has not yet been questioned to answer the charge for offences alleged to have committed by
him.
In S.C.2/87 (P.R.C/9/86) charges are framed against the 4 adult accused today, i.e., on 23.1.1987 and they pleaded not guilty....
It is stated that the trial against the four adult accused went on in which two of them were acquitted and the rest were found guilty, convicted and
sentenced to the imprisonment for life and the appeal preferred against the conviction and the sentence is pending disposal before this Court. As
has been stated earlier, the juvenile accused is on bail and for the reasons stated above by the learned Sessions Judge the committal order passed
by the Judicial Second Class Magistrate, Thirumayam in P.R.C. 10 of 1986 on 29.12.1986 in respect of the juvenile accused, who is the second
Respondent herein, was sought to be quashed and for the said purpose, the reference has been made by the learned Sessions Judge, Pudukkottai.
The second Respondent, the then juvenile accused is said to have been aged by now 24 and as such, he has become an adult now. On ordering
notice by this Court the second Respondent entered appearance through the Bar. Accordingly, for the purpose of answering the Reference and to
give adequate and appropriate directions, as sought for in his revision, I have heard learned Counsel Mr. Kulasekaran, for and on behalf of the 2nd
Respondent and Mr. A.N. Rajan, learned Government Advocate on behalf of the first Respondent, who has filed the final report u/s 173 of the
Code of Criminal Procedure against the juvenile accused and others.
Regarding the age of the second Respondent it is not in controversy that he is aged 24 years by now, as he was 16 years old on the date of the
committal order passed by the learned Judicial Second Class Magistrate, Thirumayam, as evident from his order passed on the basis of the
evidence of the Radiologist and Exs.C-1 and C-2, besides M.C. series. It is, therefore clear that the juvenile accused facing the charges as per the
committal order has not faced the trial, as it has yet to commence which seems to have been pending because of the pendency of this revision. The
question then remains to be answered is whether the second Respondent is to be tried as an adult accused or as a juvenile accused.
The Madras Children Act (Act 4 of 1929) and the Juvenile Justice Act, 1986 (Act 53 of 1986) are having similar provisions regarding
impermissibility of a joint trial of a juvenile with a person not a juvenile. The Juvenile Justice Act repeals the Madras Children Act, but, however, it
is to be noted that on the date of the occurrence of the instant case i.e., on 1.5.1986, the provisions of the Madras Children Act was in force. By
virtue of Section 38-B of the said Act, it is not possible for a joint trial of a juvenile or a young person with an adult. The Investigating Agency
being unaware of the same, filed the final report. However, it is seen that the learned Judicial Second Class Magistrate referred the second
Respondent for the examination by the Radiologist and ascertained his age medically and fixed it at 16 and consequently split up the case and
passed the committal orders in P.R.C.9 and 10 of 1986. Though the said two cases were taken on file by the learned Sessions Judge,
Pudukkottai, he proceeded with the Sessions Case 2/87 in accordance with the procedural law and with regard to S.C.3 of 1987 he has referred
it as mentioned above. It is also noticed that with regard to the finding of the learned Judicial Second Class Magistrate, in fixing the age of the
second Respondent, there is no controversy or dispute among the parties herein.
In this context, it has become relevant for me to advert Sections 3 and 26 of the Juvenile Justice Act, 1986 which came into force on
2.10.1987, prior to which, the provisions of the Madras Children Act were in force. Section 3 of the Juvenile Justice Act runs as follows:
Continuation of inquiry in respect of juvenile who has ceased to be a juvenile: Where an inquiry has been initiated against a juvenile and during the
course of such inquiry the juvenile ceased to be such, then notwithstanding anything contained in this Act or in any other law for the time being in
force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile"".
S.26 of the Juvenile Justice Act runs as follows:
Special provision in respect of pending cases:
Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this
Act comes into force in that area, shall be continued in that court as if the Act had not been passed and if the Court finds that the juvenile has
committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Juvenile
Court which shall pass orders in respect of that juvenile in accordance with provisions of this act as if it had been satisfied on inquiry under this Act
that the juvenile has committed the offence."".
To understand the above Sections of law in its proper legal perspective besides its meaning and object inbuilt therein, I feel totally comfortable to
refer to a decision with elaborate observations, made by a Full Bench of Patna High Court in Krishna Bhagwan Vs. State of Bihar, in the following
words:
Ss. 3 and 56 of the Juvenile Act are the corresponding provisions to Sections 3 and 52 of the Children Act. Section 3 says in clear and
unmistakable words that even if a child accused has ceased to be a child/juvenile, the inquiry may be continued and orders may be made in respect
of such person as if such person had continued to be a juvenile''. Similarly, Sections 52 and 56 when extend benefit to a convicted accused who is
undergoing sentence of imprisonment on the dates the two Acts came in force, it can be presumed that the framers of the Act must be conscious of
the fact that after undergoing the trial and the imprisonment for some period in many cases such accused must have ceased to be a child juvenile.
The Legislature has introduced a deeming fiction in Section 3 and it requires the Courts to treat the accused as a child/juvenile although during
inquiry he has ceased to be such. The effect of a deeming clause is that if the Legislature requires to imagine certain state of affairs although actually
such state of affairs do not exist the Court have not only to imagine the existence thereof but follow up the consequences thereof as well. Thus, the
Legislature requires to treat an accused who was a child/juvenile at the time of commission of the offence, a child/juvenile throughout the enquiry
irrespective of the actual fact, it is not for the Courts to examine the wisdom of the Legislature while enacting such provision. It is always open to
legislature to treat a group of persons as a special class, subject to the condition that they really form a class by themselves. If such classification for
special treatment is unreasonable or irrational then only such provision can be struck down as being violative of Article 14 of the Constitution. It
cannot be disputed that boys below 16 years and girls below 18 years of age, accused of different offences can be treated as a class being of
tender age and of immature mind. In the atmosphere prevailing in the society, many of them are themselves victims of the society, not having got
proper care, affection, training or having come in contact with evil elements of the society of today. The Legislature can provide for special
treatment for such accused persons with an object that they should be reformed so that later they can lead a normal life in the society"".
The Children Act as well as the Juvenile Act treat the delinquent children/juveniles as a special class and provide special procedure for enquiry in
respect of charges leveled against them. Even if those charges are established, a very liberal approach has been provided in respect of punishment
for such offences. Different Sections put a strict bar on the child/juvenile being sent to jail custody either before an enquiry or after the conclusion
of the enquiry in respect of the offence alleged or proved to have been committed. Even if such a child has committed a murder or a rape, in view
of Section 22, neither he can be sentenced to death nor to imprisonment. It is true that in many cases the offences committed by such delinquent
children may be shocking to the conscience and their conduct and behaviour may be abhorring but Section 22 is quite conscious of such situations.
Still it provides for keeping the delinquent child/juvenile accused of such serious offences, in safe custody at a place ordered by the State
Government. This benefit has to be extended not only to an accused who is a child/juvenile at the time of the commencement of the enquiry and
has continued as such till the conclusion of the enquiry, but even to an accused who has ceased to be a child/juvenile during the pendency of the
enquiry"".
For the purpose of this case, it is also necessary for me to advert to the further observations made by the Full Bench of the Patna High Court in
the abovesaid case, which are as follows:
The effect of a Section having a non-obstante clause on the other provisions of the same Act is, ''of setting at naught and of obliterating'' such
other provisions. As such to give the first part of Section 26 of the Juvenile Act its full effect it has to be held that provisions of the Children Act or
Juvenile Act in respect of enquiry into the charges leveled against a child/juvenile shall be deemed to have been obliterated so far the trials which
were pending on the date the juvenile Act came in force. Such provisions shall revive and become applicable only after the finding regarding the
guilt of such delinquent child/juvenile shall be deemed to have bee obliterated so far the trials which were pending on the date the juveniles Act
came in force. Such provisions shall revive and become applicable only after the finding regarding the guilt of such delinquent child/juvenile is
recorded by the Court which shall also include the High Court. The expression ''Court'' in Section 26 of the Juvenile Act has to be read to mean
Courts other than Juvenile Courts. Otherwise the very purpose of saying that proceedings in any Court on the date the Act came in force shall be
continued in that Court as if this Act had not been passed, shall be frustrated. The result will be that on the date the Juvenile Act came in force all
proceedings pending before Magistrates, Court or Session as if the Act has not been passed. But as the second part of that very section again
makes the provisions of that Act applicable no sooner the finding is recorded in respect of a juvenile that he has committed the offence for which
he has been charged and requires such Courts to forward the delinquent juveniles to the Juvenile Courts which shall pass orders in accordance
with the provisions of the Juvenile Act, such Courts have to forward the delinquent juveniles to juvenile Courts after recording finding of guilt.
When first part of Section 26 says that notwithstanding anything contained in that Act, all proceedings in respect of a juvenile pending in any Court
shall be continued in that Court as if that Act had not been passed, as a necessary corollary it has to be held that even Section 63 of the Juvenile
Act which deals with savings shall be deemed to be not in force so far the pending proceedings are concerned upto the stage of determination of
the guilt of such juvenile. All such provisions shall become applicable in different proceedings only after the Courts concerned record findings in
respect of the charges leveled against juveniles in question. In such a situation, it has to be held that trials including appeals which were pending on
the date the Juvenile Act came in force up to determination of the guilt of the juvenile concerned, has to proceed in accordance with the Criminal
PC.
Regarding the age of an accused as on the date of occurrence or as on the date when he appears or is brought before the Court, for deciding
whether he is a juvenile accused, a Division Bench of Kerala High Court in re-reference (Crl. Reference No. 3 of 1991, dt. 18.12.1992) reported
in (1993) M.L.J. (Crl.) 324) has observed as follows:
Delinquent Juvenile is defined u/s 2(3) of the Act to mean a juvenile who has been found to have committed an offence and Sub-section (h) of
Section 2 of the Act defines (Juvenile'' to mean a boy who has not attained the age of sixteen years or a girl who has not attained the age of
eighteen years. The definition does not as such state as to whether the age of the juvenile should be determined with reference to the date of
occurrence or as on the date when he appears or is brought before Court.
S.22 of the Act which by the wording has overriding effect enjoins, no delinquent juvenile shall be sentenced to death or imprisonment, or
committed to prison in default of payment of fine or in default or furnishing security. Section 24 states that notwithstanding Section 223 Code of
Criminal Procedure or any other law for the time being in force no juvenile shall be charged with or tried for any offence together with a person
who is not a juvenile. and a juvenile delinquent is entitled to be dealt with only under the provisions of the Act. When does the offence acquire the
said immunity and right. The answer to the said question would solve the problem whether it is age as on the date of occurrence or his age on the
date when he appears or brought to court that is material for deciding whether he is a juvenile.
An offence consists of the ''act'' mens erea and the harmful social consequence of the act which makes it culpable. Thus culpability arises on the
commission of the act'' with the necessary mens erea. and such ''act'' since is committed on a particular date the culpability too would arise on that
particular date. Thus the liability for that particular act would arise on its commission on a particular date. As a necessary corollary, liability for
punishment for the offence also would arise on the date when the offence was committed. Naturally, therefore the immunity, if any, from being
sentenced, in the absence of anything to the contrary, also has to be judged with reference to the date when the offence is committed.
Since it is his status as a juvenile delinquent that clothes him with the immunity and privileges under the Act, he need have that status only at the
Commission of the offence. If he has the immunity and privileges under the Act at the incurring of the liability for punishment viz., on the date of the
commission of the offence, that will not be taken away on his ceasing to be a juvenile on his crossing the age of 16 pending enquiry. This is
provided for the Section 3 and 56 of the Act.
A reading of S. 3 of the Act also would show that the relevant age is the age as on the date of commission of the offence.... As per Section 3 of
the Act, when a inquiry is initiated against a juvenile and he ceases to be a juvenile during the course of such inquiry, the inquiry can be continued
as if such person had continued to be a juvenile. Thus, during the course of inquiry in spite of his ceasing to be a juvenile on crossing the age of 16,
by a legal fiction he is treated as a juvenile in spite of the fact that he ceased to be a juvenile of crossing the age of 16. In East End Dwellings
Company Ltd. v. Fimbury Borough Council, (1956 A.C. 109) Lord Asquith said:
''If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the
consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The
statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to
boggle when it comes to the inevitable corollaries of that state of affairs''. In the decision in The State of Bombay Vs. Pandurang Vinayak
Chaphalkar and Others, , at page 249, the same principle is laid down where it is stated:
When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to
ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction
and it should be carried to its logical conclusion''. Thus, Section 3 of the Act mandates that the inquiry has to be continued in spite of the fact that
the accused, who was juvenile on the date of occurrence ceased to be a juvenile during the course of the inquiry treating him as a juvenile. This
also brings out the legislative intent that it is enough that he need be a juvenile on the date of occurrence, if he has not attained the age of sixteen
years at the occurrence he will be a '' delinquent juvenile'' within the meaning of the Act"".
Section 27 of the Code of Criminal Procedure deals with the jurisdiction of the juvenile case, which are as follows: -
Jurisdiction in the case of juveniles:
Any offence not punishable with death or imprisonment for life, committed by any person who, at the date when he appears or is brought before
the Court, is under the age of sixteen years may be tried by the Court of a Judicial Magistrate or by any Court specially empowered under the
Children Act, 1960 (60 of I960), or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful
offenders"".
Extracting the above section, the Kerala High Court has observed, in the above said case, as follows: -
Whether Section 27 of the Code governs this particular aspect is to be judged with due regard to Section of the Code. Section 5 of the Code
reads: ''Savings: Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the
time being in force, or any special jurisdiction or power conferred or any special form or procedure prescribed, by any other law for the time being
in force''. As per Section 5 of the Code the provisions in the Code will not affect any special or local law or any special jurisdiction of power
conferred or any special form of procedure prescribed by such law for the time being in force. The question is whether Section 27 of the code is a
''specific provision'' within the meaning of Section 5 of the Code. Section 27 of the Code in the context would only be an enabling provision which
does not express any contrary intention. In Raghbir Vs. State of Haryana, , the applicant along with three others was convicted of the offence of
murder and was sentenced to imprisonment for life. It was contended that the Appellant was a child within the meaning of Section 2(d) Haryana
Children Act, 1974, and therefore, he claimed that he is entitled to be dealt with under the provisions of the Haryana Children Act. But the same
was contested on the basis of Section 27 of the Code. Reliance was also made on a Full Bench decision of the Madhya Pradesh High Court in
Devi Singh v. State of M.P. (1978) Crl.L.J. 585) where the majority held, the juvenile courts constituted under the Madhya Pradesh B-l
Adhiniyam have exclusive jurisdiction to try a delinquent child for all offences except those punishable with death or imprisonment for life, while the
minority view of Verma.J. x (as His Lordship then was) was to the effect that the provision in Section 27 of the Code is merely an enabling
provision which does not express any contrary intention to undo the savings provided in Section 5 of the Code. The minority view was accepted
by the Supreme Court and the Supreme Court held: ''In our opinion, Section 27 is not ''a specific provision to the contrary'' within the meaning of
Section of the Act; the intention of the Parliament was to exclude the trial of delinquent children for offences punishable with death or imprisonment
for life, inasmuch as Section 27 does not contain any expression to the effect ''notwithstanding anything contained in any Children Act passed by
any State Legislature''. Parliament certainly was not unaware of the existence of the Haryana Children Act coming into force a month earlier or the
Central Children Act coming into force nearly fourteen years earlier. What S. 27 contemplates is that a child under the age of sixteen years may be
tried by a Chief Judicial Magistrate or any Court specially empowered under the Children Act, I960''.
Once it is seen that Section 27 of the Code is only an enabling provision and the same is not ''a specific provision to the contrary'' within the
meaning of Section 5 of the Code, it is clear that, whether a person is a juvenile has to be judged with due regard t the provisions in the Act. This is
in tune with the very purpose of the statute. Article 39(f) of the Constitution enjoins, it is the duty of the State that children are given opportunities
and facilities to develop in a healthy manner and in conditions of freedom and dignity. There can be no doubt that atmosphere of prisons certainly
would have an adverse effect in bringing up the personality of a child. The Act is aimed at to secure conditions whereby the personality of
delinquent children develops and they blossom as good citizens.
In the decision in Bijoe Emmanuel and Others Vs. State of Kerala and Others, the Supreme Court observed: -''If a child is a national asset, it is the
duty of the state to look after the child with a view to ensuring full development of its personality. That is why all the statutes dealing with children
provide that a child shall not be kept in jail. Even apart from this statutory prescription, it is elementary that a jail would have the affect of dwarfing
the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society.
When the provisions of the Act are understood with due regard to the object and intention of the Legislature, it is clear that the age of the child as
on the date of occurrence is the age to be reckoned for deciding whether he is a juvenile.
The Supreme Court in Gopinath Ghosh Vs. The State of West Bengal, at page 240 has formulated a law in the following words:
It clearly transpires from a combined reading of the sections hereinbefore extracted that where a juvenile delinquent is arrested, he/she has to be
produced before a juvenile court and if no juvenile court is established for the area, amongst others, the court of session will have powers of a
juvenile court. Such a juvenile delinquent ordinarily has to be released on bail irrespective of the nature of the offence alleged to have been
committed unless it is shown that there appears reasonable is grounds for believing that the release is likely to bring him under the influence of any
criminal or expose him to moral danger or defeat the ends of justice.
Their Lordships of the Supreme Court further observed as follows:
Before we part with this judgment, we must take notice of a developing situation in recent months in this Court that the contention about age of a
convict and claiming the benefit of the relevant provisions of the Act dealing with juvenile delinquents prevalent in various States is raised for the
first time in this Court and this Court is required to start the inquiry afresh. Ordinarily this Court would be reluctant to entertain a contention based
on factual averments raised for the first time before it. However, the court is equally reluctant to ignore, overlook or nullify the beneficial provisions
of a very socially progressive statute by taking shield behind the technicality of the contention being raised for the first time in this Court. A way
has, therefore, to be found from this situation now conducive to speedy disposal of cases and yet giving effect to the letter and the spirit of such
socially beneficial legislation. We are of the opinion that whenever a case is brought before the Magistrate and the accused appears to be aged 21
years or below before proceeding with the trial or undertaking an inquiry, an inquiry must be made about the age of the accused on the date of the
occurrence. This ought to be more so where Special Acts dealing with juvenile delinquent are in force. If necessary, the Magistrate may refer the
accused to the Medical Board or the Civil Surgeon, as the case may be, for obtaining credit worthy evidence about age. The Magistrate may as
well call upon accused also to lead evidence about his age. Thereafter, the learned Magistrate may proceed in accordance with law. This
procedure, if properly followed, would avoid a journey up to the Apex Court and the return journey to the grass-root court. If necessary and
found expedient, the High Court may on its administrative side issue necessary instructions to cope with the situation herein indicated"".
Importing the said ratio to the facts of the instant case, it is noticed that the learned Judicial Magistrate, Thirumayam had subjected the
delinquent/accused to the examination by a Radiologist and the Radiologist was also examined in the court as court witness and the report
submitted by him along with his certificate as to the age of the Juvenile accused and the X-rays were marked and as a result of such enquiry,
learned Judicial Magistrate has fixed the (sic) age of the delinquent at 16 and this factual aspect of this case cannot at all be ignored. So, it is clear
that Dr R. Srinivasan, Radiologist who examined the juvenile accused, the second Respondent herein, had given evidence as C.W.I and found that
the delinquent accused was aged above 15 years and below 16 years. Though the learned Judicial Magistrate after considering the above evidence
had found that the juvenile accused was aged about 16 years on 22.12.1986, it is made clear from the observation of the doctor that the second
Respondent, the then juvenile accused had not attained the age of 16 years. The word ''attained'' means, in my respectful view, that die boy should
have completed the age of 16 years and certainly not that 16 years is running. It is necessary at this juncture to note Sub-clause (h) to Section 2,
the definition, provided under the Juvenile Justice Act, which is extracted hereunder:
Juvenile'' means a boy who has not attained the age of sixteen years on a girl who has not attained the age of eighteen years."".
It is, therefore, made clear under the circumstances that the second accused on the date of occurrence was only a juvenile within the meaning of
the definition inbuilt in the above section of law and his age, after due enquiry made, was fixed correctly in accordance with the procedure known
to or provided by the law. It was followed by the investigation of the case and final report was filed against all the persons involved in the crime
including the juvenile accused. From the proposition of law extracted above, if the juvenile delinquent for the offence charged is also to be tried,
then it must be under the provisions of the Juvenile Justice Act, for the very reasonings spelt out in the provisions of Sections 3 and 26 of the
Juvenile Justice Act which have been elaborately given above. The law regarding the procedure of the court to conduct the trial even before the
Juvenil Justice Act came into force, has been dealt with by the Full Bench of this Court in a reference case in Sessions Judge, Tirunelveli, Referring
Officer v. Perumal (1973 L.W. (Crl.) 222) at page 236 in the following words:
Where a juvenile alone is accused of an offence, the case against him will, as hitherto, be tried by the Juvenil 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 conflict of decisions by Juvenile Court and the Court of
Session. To achieve this purpose, the police office will file the charge sheet against the adult accused in the court of the concerned sub-Magistrate
employed under chapter XVIII, 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 he 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 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"".
The Full Bench in paragraph 33 of the said judgment has also observed as follows:
The all important question therefore is whether in view of Rs. 3 of the Madras children Rules 1940 it can be said the Section 193 of the Code of
Criminal Procedure is not applicable. The answer to this question depends upon the working 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 provisions 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 proscribed by 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 expressed. Reading Section 1(2) of the Code of Criminal Procedure along with Rule 3 of the
Madras Children Rules, 1940 is 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 been order of committal to the court of session and the
court of session can straight away 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.
A Division Bench of this Court in an unreported judgment in Rajan @ Thiruvengada Karthigeyan v. State In Crl.Appeal No. 427 of 1986
dated 13.8.1992 has held as follows: -
The penal pharmacopeias of India, in tune with the reformatory strategy currently prevalent in civilised criminology, has to approach the child
offender, not as a target of harsh punishment but of humane nourishment. The Children Act as well as the Juvenile Justice Act treat the delinquent
children/Juveniles as a special class and provide special procedure for enquiry in respect of charges leveled against them. Even if those charges are
established. A very liberal approach has been provided in respect of punishment for such offenses. Different sections put a strict bar on the child
juvenile being sent to jail custody either before an enquiry or after the conclusion of the enquiry in respect of the offence alleged or proved to have
been committed. Even if such a child has committed a murder, in view of Section 22, neither he can be sentenced to death nor to imprisonment. It
is true that in many cases as in the present one the offences committed by such delinquent children may be shocking to the conscience and their
conduct behaviour may be abhorring but Section 22 is quite conscious of such situations. Still it provides for keeping the delinquent child juvenile
accused of such serious offences, if false custody at the place ordered by the state Government. This benefit has to be extended not only to an
accused who is a child/juvenile at the time of the commission of the offence and has continued as such till the conclusion of the enquiry, but even to
an accused who has ceased to be child/juvenile during the pendency of the enquiry"".
As already laid down and discussed by the courts of law of this land, since the Juvenile Justice Act repeals all the Acts dealing with the
delinquent children and prevails by now, the case under this reference is lawfully deemed to be pending before the learned Sessions Judge,
Pudukkottai within the full ambit of Section 26 of the Juvenile Justice Act. For all the reasonings adverted to above, the mandate of Section 3 of
the Act has to be followed. However, with every constraint, I feel that the committal order passed by the learned Judicial Second Class
Magistrate, Thirumayam, in P.R.C.10 of 1986. has no legs to stand for the legal infirmities which have been pointed out already. There cannot be
any order of committal for a juvenile delinquent for offences of any category, perhaps, the Juvenile Justice Act came into force on 2.10.1987 and
that must be reason and ground for passing such committal order. Even so, the settled law by then, viz, the Madras Children Act seems to have
been totally ignored by the learned Judicial Magistrate while passing the committal order. As pointed out by the Full Bench of this Court, the
committal order cannot be sustained and there exists no need for passing such committal orders against the juvenile accused, pursuant to the
provisions of the Juvenile Justice Act, which is in force, even if a Juvenile Justice Court is functioning in Pudukkottai. I am totally unable to accept
the contention raised by Mr. Kulasekaran, learned Counsel for the second Respondent that the juvenile accused/2nd Respondent has to be tried in
accordance with the Juvenile Justice Act before the Juvenile Justice Court, for the very reasoning that the learned Sessions Judge, Pudukkottai was
already seized of the matter against the other accused and the delinquent juvenile is before the learned Sessions Judge for trial either under the old
Act or under the provisions of the Juvenile Justice Act. However, in my considered view, Section 26 of the Juvenile Justice Act will take its full
operation to the facts of the instant case.
Before parting I must place on record the valuable assistance rendered by Mr. A.N. Rajan, learned Government Advocate as well as Mr. A.
Kulasekaran, learned Counsel for the second Respondent. In conclusion, having considered the whole gamut of the case, I am fully constrained to
hold that the committal order passed by the learned Judicial Second class Magistrate, Thirumayam in P.R.C. 10 of 1986 dated 29.2.1986 cannot
be sustained. However, pursuant to Section 26 of the Juvenile Justice Act and for all the detailed observations and various reasonings given above
it has become necessary for me to direct the learned Sessions Judge, Pudukkottai to proceed with the trial against the juvenile accused
immediately, without any delay and in accordance with the provisions of the Juvenile Justice Act and dispose the same as expeditiously as possible.
This direction is being given in the light of the fact that the trial is pending for the last more than 8-1/2 years. The reference is answered accordingly.