Judgment :- 1. Five accused were charge-sheeted and tried before the Special Court of the Judicial First Class Magistrate, Trivandrum in C.C. No. 8 of 1984 for offences punishable under S.120-B, 466, 467, 468, 471, 420, 201 and 109 read with Se4 of the Indian Penal Code. At the time of the preliminary hearing before framing charge, the counsel for the first accused raised a contention that the first accused is a minor and therefore the trial is vitiated. The learned Magistrate found the first accused to be a child and therefore came to the conclusion that the charge has to be split up. In para 9 of the order it is stated by the Magistrate that the only course open to the Court is to direct separate trials of the first accused and the other accused under S.23(2) of the Kerala Children's Act. 2. The charge against the first accused included offence alleged to have been committed by her at the time when she was a juvenile as well as offences committed by her subsequently when she became a major. In that respect, the Magistrate said in para 9 of the order that the learned Special Prosecutor will be entitled to withdraw and file a fresh charge-sheet if he sticks on bis case against accused 1 and 2 regarding the alleged acts committed by the first accused on 21-1-1980 and afterwards. Anyhow, in the last paragraph of the order the Magistrate disposed of the matter in this way: 3. "In the result, the accused are discharged under S.239 Cr. P.C. subject to the right of the prosecution to split up the charge and file proper charges against the respective accused before the proper courts". 3. This is the order that is sought to be revised by the State. This is one of the cases popularly known as the mark list case. First accused appeared for the Pre-degree examination in 1979 and obtained a pass with second class from the St. Teresa's College, Ernakulam. Second accused is her father. In the mark list received from the college on 30-8-1978, the total number of marks secured by the first accused was shown as 249. First accused appeared for the Pre-degree examination in 1979 and obtained a pass with second class from the St. Teresa's College, Ernakulam. Second accused is her father. In the mark list received from the college on 30-8-1978, the total number of marks secured by the first accused was shown as 249. With this mark, it would have been impossible for her to secure admission for the M.B.B.S. The prosecution case is that with the help of accused 3, 4 and 5, accused 1 and 2 inflated the marks and secured admission to the M.B.B.S. on the basis of an application submitted on 8-12-1978. At that time, the first accused was a juvenile. Subsequent to her attaining majority on 21-3-1980 she is alleged to have forged mark list and produced it again for recognition for appearance in the first year examination. It was in this connection that the Magistrate said that the Special Prosecutor will be entitled to file a fresh charge-sheet if he sticks on his case against accused 1 and 2 regarding the alleged acts committed on 21-3-1980 and afterwards. 4. Now the position is concluded by the Supreme Court decisions that the crucial date in order to decide whether the accused is to be tried by the Children's Court or not is the date on which the offence was committed and not the date on which the accused is placed for trial. Therefore, the Magistrate was perfectly right in coming to the conclusion that the first accused could be tried only by the Children's Court. S.23 of the Kerala Children's Act provides that notwithstanding anything contained in S.239 of the Code of Criminal Procedure, 1898 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. So also, S.23 (2) says that in such cases, the court taking cognizance shall direct separate trials of the child and the other person. But I fail to understand how the Magistrate ordered discharge of all the accused under S.239 of the Code with a statement that the case against all the five accused abated. Discharge under S.239 is contemplated only in cases where the Magistrate considers the charge against the accused groundless. Such a discharge will bar a fresh prosecution for the same offence also. Discharge under S.239 is contemplated only in cases where the Magistrate considers the charge against the accused groundless. Such a discharge will bar a fresh prosecution for the same offence also. Therefore, there cannot be any dispute regarding the fact that the Magistrate went wrong in this respect. The order of discharge, therefore, requires interference in revision because it is an illegality. 5. S.7 of the Kerala Children's Act says that when the Magistrate not empowered to exercise the powers of a Children's Court under the Act is of opinion that the person brought before him under any of the provisions of the Act is a child, he shall record such opinion and forward the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding. The competent authority to which the proceeding is forwarded shall hold the inquiry as if the child had originally been brought before it. Such a course would have been the proper procedure to be adopted by the Magistrate. 6. It was argued on behalf of the State that even though the case against the first accused will have to be split up and tried by the Children's Court as regards the offence committed when she was a juvenile, there was no legal objection in the offence committed by her on 21-3-1980 and afterwards being tried along with the other accused in the same case itself. I do not think that it will be a proper procedure. If the first accused is found not guilty by the Children's Court regarding the offences alleged to have been committed in 1978, there may not be any question of trying her again for the offence committed on 21-3-1980 and thereafter. Therefore, it will be only proper that the State is given liberty to prosecute the first accused again for the subsequent offences after the trial regarding the earlier offences is finally concluded. At any rate, there cannot be any dispute regarding the fact that the charge against the first accused will have to be split up and she will have to be forwarded to the Children's Court for trial along with the records. 7. The Criminal Revision Petition is therefore allowed and the order passed by the Magistrate discharging all the accused on the ground that the charge has abated is hereby set aside. 7. The Criminal Revision Petition is therefore allowed and the order passed by the Magistrate discharging all the accused on the ground that the charge has abated is hereby set aside. The learned Magistrate will take back the case to file. The charge against the first accused for the offence alleged to have been committed when she was a juvenile will be split up and she will be forwarded along with the records to the Children's Court for being tried in accordance with law. The Children's Court will expedite the trial of the case. The case against the other accused before the learned Magistrate will await decision of the Children's Court on the charges against the juvenile. Thereafter the split up charge as against accused 2 to 5 and if necessary the charge against the first accused for the offences committed on 21-3-1980 and thereafter will be tried and disposed of by the Magistrate in accordance with law. Allowed.