Judgment :- 1. This matter arising in Calendar Revision in pursuance of an order passed by a learned Single Judge of this Court issuing notice to the parties in Sessions Case No. 66 of 1979 on the file of the Court of Sessions, Kottayam, raises a question of importance relating to the forum for the trial of a child for an offence punishable under S.302 IPC. 2. The point that arises for determination in this revision is whether the trial of Jojo, aged 12, 4th accused in Sessions Case No 66 of 1979 before the Court of Sessions, Kottayam, along with 1st, 2nd, 3rd and 5th accused, who are all adults, is proper and legal in view of the express prohibition of such a trial under S.23 of the Kerala Children Act, 1972 (Act 3 of 1973) (hereinafter called the 'Act' or the 'Kerala Act'). In pursuance of an order of committal passed by the Judicial Magistrate of the First Class, Palai, the learned Sessions Judge, Kottayam. took cognizance of the offences alleged to have been committed by the accused persons, numbered the case as SC. No. 66 of 1979 and after hearing both parties and on consideration of the records before him, framed a charge against the accused persons for offences punishable under S.143, 148, 324, 326 and 302 IPC. read with S.149 thereof, for having committed murder of one Joseph and other allied offences at about 9 30 A. M. on December 17,1978, The first accused is the father and the 2nd. 4th and 5th accused are his children while 3rd accused is a stranger The learned Sessions Judge, unnoticing the provisions in S.23 of the Act, after framing charges against the accused persons, proceeded with the trial and examined a number of witnesses. It was only at the time when the Investigating Officer was examined that the fact that the 4th accused was a child coming within the purview of S.23 of the Act was noticed by the learned Sessions Judge, The proceedings were immediately stopped and a report about this was made to this Court and it was on the basis of this report, as stated earlier, the learned judge in charge of the District issued notice to the parties and thus the matter came up before this Court. 3. 3. The Kerala Act was enacted to provide for the care, protection maintenance, welfare, training, education and rehabilitation of neglected or delinquent children and for the trial of delinquent children in the State of Kerala. S.2 of the Act deals with definitions and the definition of the 'child' is contained in S.2 (d) which reads: " "Child" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years a d when used with reference to a child sent to a children's home or special school applies to that child during the whole period of the stay, notwithstanding that during the period of such stay, the child may have attained the above age limit." Under S.2(e) "Children's Court" means 'a court constituted under S.4 of the Act' "Delinquent child" has been defined under S.2 (1) to mean a child who has been found to have committed an offence. "Offence" under S.2 (m) of the Act means an offence punishable under any law for the time being in force. "Competent Authority" also has been defined under S.2 (g) of the Act. S.6 deals with the powers of Children's Court. "Offence" under S.2 (m) of the Act means an offence punishable under any law for the time being in force. "Competent Authority" also has been defined under S.2 (g) of the Act. S.6 deals with the powers of Children's Court. Chapter IV of the Act containing S.17 to 26 deal with delinquent children S.39 of the Act appearing in Chapter V speaks of the procedure to be adopted in inquiries, appeals and revision proceedings S.19 states that where a child having been charged with an offence appears or is produced before a children's court, it shall hold the inquiry in accordance with the provisions of S.39 and may, subject to the provisions of the Act, make such an order in relation to the child as it deems fit S.23 of the Act unequivocally states that notwithstanding anything contained in S.239 of the Code Criminal Procedure, 1898 (S.223 of the Code of Criminal Procedure, 1973) or in any other law for the time being in force, no child shall be charged with or tried for any offence together with a person who is not a child Admittedly, Jojo, the 4th accused is a child corning within the meaning of the Act and the other accused are adult persons to whom the provisions of the Act would not apply Under S.21(I) of the Act, notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent child shall be sentenced to death or imprisonment, or committed to prison in default of payment of fine or in default of furnishing security. 4. On the admitted facts, it is clear that the learned Sessions Judge has committed a clear illegality in framing a charge against the 4th accused along with others and trying him along with other accused against the express prohibition in S.23 of the Act. The order of committal need not be quashed because as in the previous Code, there is no provision in the present Code for framing a charge against the accused persons by the Magistrate while committing them to the Court of Sessions. In this case no charge has been framed by the Magistrate against the 4th accused along with others while he committed them to the Court of Sessions to stand their trial there. In this case no charge has been framed by the Magistrate against the 4th accused along with others while he committed them to the Court of Sessions to stand their trial there. The charge framed by the learned Sessions Judge against the 4th accused has therefore to be quashed and the trial of the 4th accused cannot be continued along with other accused persons. The illegality committed in the regard will not affect the framing of charge or charges against the other accused and their trial. There can be no doubt that the 4th accused should be separated from the other accused and charged with and tried separately. 5. What remains to be considered is whether the 4th accused is to be dealt with by the Court of Sessions or by the Children's Court constituted under S.4 of the Act. Taking into consideration the object and purpose of the Act and also the fact that children should not be asked to march into the regular courts and their trials have to be conducted by persons having special knowledge of child psychology and child welfare, this case in the ordinary course ought to have been sent to the Children's Court But, the learned Advocate General who appeared on behalf of the State candidly and fairly pointed out that there are certain lacunae in the Kerala Children Act and submitted that in view of S.4 (2) of the Act, there is real difficulty in sending this case where the child is alleged to have committed an offence punishable with death or imprisonment for life and exclusively triable by a Court of Session, to the Children's Court. Admittedly there is no corresponding section in the Kerala Children Act, 1972 as in Bombay Children Act, prohibiting ordinary courts from taking cognizance of an offence committed by a child coming within the definition of the Children Act. S.4 of the Kerala Act reads: "4. Children's Courts. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Central Act 5 of 1898), the Government may, by notification in the Gazette, constitute for any area specified in the notification, one or more children's courts for exercising the powers and discharging the duties conferred or imposed on such court under this Act. Children's Courts. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Central Act 5 of 1898), the Government may, by notification in the Gazette, constitute for any area specified in the notification, one or more children's courts for exercising the powers and discharging the duties conferred or imposed on such court under this Act. (2) A children's court shall consist of such number of magistrates forming a Bench as the Government think fit to appoint, of whom one shall be designated as the Senior Magistrate and not less than one shall be a woman; and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1898 (Central Act 5 of 1898), on a magistrate of the first class." So, it is clear from the above that a Bench constituting a children's court shall have only the powers conferred by the Code of Criminal Procedure on a magistrate of the first class. On the other hand, under S.4 of the Madras Children Act, 1920 (hereinafter referred to as the 'Madras Act'), a hierarchy of courts empowered to deal with children and youthful offenders has been enumerated. By virtue of this section, powers conferred on courts by the Madras Children's Act can be exercised by the High Court, a Court of Session, a District Magistrate, a Sub Divisional Magistrate, a salaried Presidency Magistrate, any juvenile court constituted under S.36 and any magistrate of the first or second class specially authorised by the State Government to exercise all or any of such powers, whether the case came up before them originally or on appeal. Under S.36 of the Madras Act, provision has been made for the establishment of juvenile courts for the hearing of charges against children or young persons. It may be noted that in addition of the definition of "child" under sub-section 1 of S.3 of the Madras Act, a "young person" has been defined under sub-section 2 and a "youthful offender" under sub-section 3 of the same section A "youthful offender" has been defined to mean 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. Under the Kerala Act, there is no such definition of a "youthful offender". Under the Kerala Act, there is no such definition of a "youthful offender". The learned Advocate General submitted that some of the provisions in the Madras, Act are absent in the Kerala Act and that it was on an examination of all these relevant sections in the Madras Act the Full Bench of the Madras High Court in Sessions Judge, Tirunelveli v. Perumal and another reported in 1974 Crl. Law Journal 261, held that I he juvenile courts established under the Madras Children Act, 1920 have power to try all juvenile offenders for any offence including those punishable with death of imprisonment for life. 6. There are no provisions similar to S.4 and 36 of the Madras Act in the Kerala Act. As stated earlier, there is no specific provision in the Kerala Act which prohibits an ordinary court or regular court from trying a child who has committed an offence punishable with death or imprisonment for life. As pointed out by the Advocate General there is also no express provision in the Kerala Act which specifically empowers a Children's Court to try a child for an offence punishable under S.302 IPC Not only that there is no express provision in this regard, it is crystal clear from sub-section (2) of S.4 of the Kerala Act that the children's court constituted under S.4 can exercise only the powers conferred by the Code of Criminal Procedure on a Magistrate of first class. 7. The learned Advocate General stated that he will bring these defects in the Kerala Children Act to the notice of the Government at the earliest opportunity for taking appropriate action in this regard and get the defects in the Act cured or the omissions supplied. According to the learned Advocate General in view of the difficulties arising under S.4 (2) of the Kerala Act and in the light of the decision of the Full Bench of the Madras High Court referred to above, it is desirable that the Court of Session itself separately tries this case. Irrespective of what is stated in S.4 and S.19 and other provisions in the Kerala Act, it is clear that in view of sub-section (3) of S.6, the Court of Session can try this case against the child also. Irrespective of what is stated in S.4 and S.19 and other provisions in the Kerala Act, it is clear that in view of sub-section (3) of S.6, the Court of Session can try this case against the child also. Sub-section (3) of S.6 expressly states that the powers conferred on the Children's Court by or under this Act can be exercised by the High Court and the Court of Session, when the proceeding came up before them in appeal, revision or otherwise. The case has now come up before the Court of Session, Kottayam and in view of sub-section (3) of S.6, that Court can also try a child coming within the Kerala Act. This also can avoid conflict of decisions or findings on the same issues involved in the same case in respect of the same occurrence and the child also can have the benefit of the evidence being appreciated by an experienced Judge. This will also instil confidence in the mind of the child and the other accused that they were treated alike atleast in the matter of appreciation of evidence without any discrimination being shown merely on the ground of age. 8. In view of the express prohibition in S.23 of the Kerala Act, the charging and trial of the 4th accused, a child coming within the ambit of this Act, along with adult accused, by the Court of Session is clearly illegal. The charge framed against the 4th accused is hereby quashed. The learned Sessions Judge will split up the case and separate the child from the trial of others and proceed with the trial of the other accused in accordance with law from the stage it had already reached. The learned Sessions Judge will commence the case against the 4th accused afresh and try him separately for the offence alleged to have been committed by him, in accordance with the provisions of the Kerala Children Act, 1972. These cases will be tried as far as possible simultaneously, and judgments in both the cases will be pronounced on the same date.