JUDGMENT 1. 1. This appeal has been preferred against the judgment dated 25th Feb., 1980, passed by the Sessions Judge, Alwar, whereby, he has convicted the appellant for the under section 376, IPC and sentenced him to 4 years' rigorous imprisonment and a fine of Rs. 200/-, and in default of payment of fine, to further undergo 3 months' rigorous imporisonment. 2. The accused-appellant was committed to the court of Sessions Judge, Alwar, for trial under section 376, IPC for commuting rape on one Mst. Kiran. According to the prosecution, the appellant persuaded Mst. Kiran on 3rd July. 1978, and took her to his house and committed rape on her. When she cried. Lekhram. Mst. Bhori, Shriram and Durgaprsad came to the house of the appellant, then the appellant opened the door of his house, he threatened them showing a bare sword and tried to assault Lekhram and his son. They were rescued by the other persons, and the accused appellant was closed in the house. They all then came to police station. and Lekhram submitted a written-report (Ex. P. 6). On the basis of this report, a regular FIR (Ex. P.7) was prepared and a case u/ s 376, IPC was registered. The police investigated the matter and inspected the site and prepared a site-plan. They recovered the clothes of the accused and arrested him. The articles were then sent to FSL for examination. After completing usual investigation, the police submitted a challan against the accused. 3. The learned Sessions Judge framed charge against the accused under section 376, IPC, who pleaded not guilty and claimed trial. After trial, the learned Sessions Judge found that the prosecution has proved its case against the accused, and sentenced him as mentioned above. 4. Mr. Jain argued that the accused was below 16 years of age when he committed the, and so his trial by the learned Sessions Judge was bad, illegal and abinitio void. According to him a child below 16 year. of age, has to be tried by a children's court and the learned Sessions Judge had no jurisdiction to have proceeded with the trial in the relating to a child who was below 16 years. 5. This is a legal point which goes to the root of the entire case. 6. Mr. According to him a child below 16 year. of age, has to be tried by a children's court and the learned Sessions Judge had no jurisdiction to have proceeded with the trial in the relating to a child who was below 16 years. 5. This is a legal point which goes to the root of the entire case. 6. Mr. Alvi argued that the incident taken place within the jurisdiction of PS-Kotwali, Alwar, and that at the relevant time Children's Act was not made applicable to Alwar District, and therefore, the case could only be tried by the Sessions Judge Alwar. He further added that had there been a Children's Court in Alwar District, then, certainly the Sessions Judge Alwar would have no jurisdiction to try the case; but at the relevant time when the was committed. Children's Act was not made applicable to Alwar, and therefore, there was no Children', Court and it was, according to him in that circumstance the learned Sessions Judge had the jurisdiction to have proceeded with the trial in this case. 7. This case pertains to a juvenile delinquent. On the point whether the accused was below 16 years of age at the time of commission of the, there is no dispute however, the occurrence had taken place on 3rd July, l978, and the accused was arrested on 3rd July 1978. The accused was then committed to the court of Session, and a bail-application was filed by the accused for releasing him on bail, before the Sessions Judge Alwar who disposed of that bail-application on 18th July 1978, while granting bail to the accused. While passing the order on the bail-application, the learned Sessions Judge remarked that the accused had committed the of rape and because, he was admittedly a child of 15 years and there was no likelihood that he would threaten the witnesses if he was released on bail and also considering the fact that if he was not released on bail, he might come in the contact of hardened criminals, which would spoil his future career he was granted bail. So, the learned Sessions Judge granted bail to the accused on so many grounds, and one of those grounds was that at the time of commission of the crime, the accused was 15 years of age. It means that the accused was admittedly below 16 years of age. So, the learned Sessions Judge granted bail to the accused on so many grounds, and one of those grounds was that at the time of commission of the crime, the accused was 15 years of age. It means that the accused was admittedly below 16 years of age. So, Keeping the age of the accused in mind, I proceed to discuss the law on the point. 8. Rajasthan Children's Act was enacted in the year 1970. S. 2(d) of the Act defines "child" to mean a boy who has not attained the age of 16 years, or a girl who has not attained the age of 18 years. S. 2(i) defines 'delinquent child" to mean a child who has been found to have committed an S. 18 of the said Act provides for grant of bail to a child pending inquiry S. 19 of the Act casts an obligation on the officer-in-charge of the police station to which a child was brought after arrest, to inform the parents or guardian of the child, if he can be found, of such arrest and direct him to be present before the children's court before which, the child would appear. Section 20 provides that where a child having been charged with an , appears or is produced before a Children's Court, the Children's Court shall hold an inquiry in accordance with the provisions of S. 39, and may. subject to the provisions of the Act, make such order in relation to the child as it deems fit. S. 22 of the Act takes away the jurisdiction of the court to impose sentence of death or imprisonment or to commit to prison in default of payment of fine or in default of furnishing security. subject to the provisions of the Act, make such order in relation to the child as it deems fit. S. 22 of the Act takes away the jurisdiction of the court to impose sentence of death or imprisonment or to commit to prison in default of payment of fine or in default of furnishing security. There is a proviso to S. 22, which provides that where a child who has attained the age of fourteen years has committed an and the children's court is satisfied that the committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other children in a special school, to send him to such special school and that none of the other measures provided under this Act is suitable or sufficient, the Children's Court may order the delinquent child to be kept in safe custody in such place and manner as it thinks fit and shall report the case for the orders of the State Government. 9. S. 5 of the Act confers power on the State Government to establish children's courts by notification in the Official Gazette, which may constitute for 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 in relation to delinquent children under this Act. 10. S. 26 of the Act provides that notwithstanding anything contained in this Act, all proceedings in respect of a child 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 this Act had not been passed, and if the court finds that the child has committed an offence it shall record such finding and, instead of passing any sentence in respect of the child, forward the child to the children's court which shall pass orders in respect of that child in accordance with the provisions of this Act as if it has been satisfied on inquiry under this Act that the child has committed the offence. 11. 11. From the provisions of the Act as mentioned above, it transpires that where a juvenile delinquent is arrested, he/she has to be produced before a Children's court, and if no children's court is established for the area, the court of Sessions will have the power of a children's court. Such a juvenile delinquent ordinarily, has to be released on bail, irrespective of nature of the alleged to have been committed. This was the reason that the learned Sessions Judge Alwar in the present case, granted bail to the accused- appellant as he was below 15 years of age admittedly. Then, S. 20 of the Act says that where a child having been charged with an appears or is produced in children's court, the children's court shall hold an inquiry in accordance with the provisions of S. 39. So, this section takes away the power of the court to impose sentence of imprisonment, unless a case falls under the Proviso to S. 22. 12. It would be relevant to mention here the aims and objects of enacting the Rajasthan Children's Act. This Act was enacted in order to provide care, protection, maintenance welfare, training education and rehabilitation of neglected or delinquent children and for the trial of delinquent children in the State of Rajasthan; and it came into force in the State on such date as the State Government might by notification in the Official Gazette, appoint and different dates might be appointed for different areas thereof. So this Act was enacted for securing That the children are given opportunities and facilities to develop in a healthy manner, and this was the reason that all other courts except the children's courts were debarred from trying a child delinquent and imposing any imprisonment on him. This was the reason that it was observed in the Act that no trial is to be held for such child delinquents. but, only inquiries are to he made, and that too, according to the provisions laid down in the Act. So, this enactment is a beneficial enactment. Hence, the argument of the learned Public Prosecutor that the accused had not taken the plea before the learned Sessions Judge that he could not be tried before him, and he should be produced before a children's court for his trial, is of no substance. So, this enactment is a beneficial enactment. Hence, the argument of the learned Public Prosecutor that the accused had not taken the plea before the learned Sessions Judge that he could not be tried before him, and he should be produced before a children's court for his trial, is of no substance. When the was committed by the accused in this case, children's court was not established in Alwar District, no doubt, but this is a technical objection. The accused was below 16 years of age at that time, and as there was no children's court for the area. he could be tried by the Sessions Judge, but looking to the provisions of the Children's Act, no sentence of imprisonment could have been imposed on him. I am, therefore, of the opinion that though this objection was not taken before the learned Sessions Judge by the accused, and it was so raised for the first time before this Court, the conviction and the sentence passed by the learned Sessions Judge, against the accused in this case, are to be set aside. 13. I would like to observe here that looking to the socio-beneficial legislation made by the State, some duty is cast on the judicial courts also; and so, whenever a case is brought before the court, and the accused appears to be below 21 years of age, before proceeding with the trial and conducting an inquiry, an inquiry must be made about the age of the accused on the date of commission of the offence . In that case, the subordinate court may refer the accused to medical board for ascertaining his age, and it may also call for evidence from the accused about his age, and only after ascertaining his age, the court should proceed further. 14. In view of my above discussion, I am of the opinion that the Children's Act was not applicable to Alwar District, at the relevant time. But, as observed above, the learned Sessions Judge should not have passed any sentence of imprisonment against the accused-appellant. I am supported in my view by the decisions of Hon'ble the Supreme Court in the cases of Umesh Chandra v. State of Rajasthan ( 1982(2) SCC 202 ) and Goplinath Ghosh v. State of West Bengal ( AIR 1984 SC 237 ) . In the case or Goplinath Ghosh (supra). I am supported in my view by the decisions of Hon'ble the Supreme Court in the cases of Umesh Chandra v. State of Rajasthan ( 1982(2) SCC 202 ) and Goplinath Ghosh v. State of West Bengal ( AIR 1984 SC 237 ) . In the case or Goplinath Ghosh (supra). it was observed as under:- "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, among 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 alleged to have been committed unless it is shown that there appears reasonable 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. A minor accused was tried along with other accused for committing murder and was sentenced to imprisonment for life. The plea that he was minor was raised for the first time in appeal before the Supreme Court. In fact when questioned by the trial court the minor gave his age as 20 years. The specific issue as to whether the accused was minor was referred by the Supreme Court to the trial court and the answer was returned in affirmative. Held, that in view of the underlying intendment and beneficial provisions of the Act read with cl. (f) of Article 39 of the Constitution, it would be proper not to allow a technical objection that the contention that the accused is minor is being raised in Supreme Court for the first time. If such objection is allowed, it would result in thwarting the benefit of the provisions of the Act to the minor, if he was otherwise entitled to it. Conviction and sentence of the minor were set aside and the case remitted." 15. The present case is of the year 1978; and at that time, Rajasthan Children's Act was not applicable to Alwar District. Therefore, the Sessions Judge was empowered to proceed with the case and as provided in S. 26 of the Act, at the time of applicability of the Act to a particular district, the pending cases would continue and the Sessions Judge would complete the inquiries. Therefore, the Sessions Judge was empowered to proceed with the case and as provided in S. 26 of the Act, at the time of applicability of the Act to a particular district, the pending cases would continue and the Sessions Judge would complete the inquiries. But, if the court finds that a child has committed an offence, it shall record finding and instead of passing any sentence in respect of the child, forward the child to the children's court, which shall pass orders in respect of that child, in accordance with the provisions of the Act. 16. In the result, the appeal is accepted. In view of the provisions of S. 26 of the Act, the sentence of imprisonment awarded by the learned Sessions Judge, to the accused-appellant is hereby set aside; and the case is remanded back to the court of Sessions Judge, Alwar for recording its finding about the commission of the by the accused and proceeding further according to S. 26 of the Raj. Children's Act, 1970. 17. This judgment is not on the merits of the case, but, on the legal point raised before this Court by both the learned counsel.Appeal Accepted, Case Remanded. *******