Siddappa Gangappa Mantur v. The State of Mysore — 1999 DIGILAW 1703 (MAD)

Somnath Iyer, J.- The challenge in this revision petition is to an order for committal made by the Magistrate of Juvenile Court at Dharwar, directing the petitioner before us to take his trial before the Court of Session. The charge against the petitioner is that he committed an offence of murder on 24th April, 1964. There was a similar charge against some others, but since the petitioner was a child as defined by section 4(1)(f)of the Mysore Children Act, 1964, which came into force on 19th March, 1964, the prosecution against the petitioner was proceeded with in the Juvenile Court established under the Childrens Act, 1964, while the proceedings against the others continued before the Court constituted under Che Code of Criminal Procedure. Since the same Magistrate presided over both the Courts, what happened in reality was, that there was a bifurcation of the proceedings. Those concerning the petitioner were disposed of by him as the Magistrate presiding over the Juvenile Court, and, in respect of the others, the order of committal was made in his capacity as the Magistrate presiding over the ordinary Court. Mr. P.L. Patil for the petitioner calls in question the order of committal made in respect of the petitioner, depending upon section 8 of the Mysore Children Act, 1964 which would be referred to as ‘the Children Act’ which, according to him, clothes the Magistrate presiding over the Juvenile Court with exclusive jurisdiction to try the petitioner of the offence with which he was charged, excluding the jurisdiction of the Court of Session where he is now directed to stand his trial. It is undisputed that since the offence with which the petitioner is charged was committed after the Children Act came into force, the prosecution commenced against the petitioner is governed and regulated by the provisions of that Act. The argument placed before us was that section 8 of the Children Act made it impermissible for the Magistrate to make an order of committal in the case of the petitioner, since, what he was enjoined by that section was to try the petitioner and dispose of the matter under section 60. The short question is whether there is anything in the Children Act which prohibits the order for committal under Chapter XVIII of the Code of Criminal Procedure in a case in which the accused is a child within the meaning of the Act. The short question is whether there is anything in the Children Act which prohibits the order for committal under Chapter XVIII of the Code of Criminal Procedure in a case in which the accused is a child within the meaning of the Act. A ‘child’ is defined by the Children Act by section 4(1)(f) of the Act which provides that a ‘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. There is no controversy before us that the petitioner is a child falling within this definition. It is not disputed that for the Dharwar Taluk which is the area in which the offence is said to have been committed, a Juvenile Court was constituted under section 7 of the Children Act which empowers the State Government, by notification, to constitute it. The powers of Juvenile Courts so constituted are enumerate d in section 8 of the Act which reads: “8. Powers of Juvenile Courts and other Courts.-(1)Where a Juvenile Court has been constituted for any area, such Court shall, notwithstanding anything contained in any other lawfor the time being in force but save as otherwise provided in this Act, have power exclusively to try all cases in which a child is charged with the commission of an offence and shall deal with and dispose of all other proceedings under this Act; but shall not have power to try any case in which an adult is charged with an offence under Chapter VI of this Act. (2) Where no Juvenile Court has been constituted for any area, the powers conferred onthe Juvenile Court by or under this Act shall be exercised in that area, only by the following, namely: (a) the Court of the District Magistrate; or (b) the Court of any salaried Magistrate of the First Class. (3) The powers conferred on the Juvenile Court by or under this Act, may also be exercised by the High Court and the Court of Session when the proceedings come before them in appeal, revision or otherwise.” The clear meaning of this section which consists of many parts is this. What it provides firstly is that on the constitution of a Juvenile Court for any particular area, that Court alone shall have exclusive power to try all offences with which a child is charged. What it provides firstly is that on the constitution of a Juvenile Court for any particular area, that Court alone shall have exclusive power to try all offences with which a child is charged. What it next provides is that such power is not exercisable where the offence is said to have been committed by an adult who is defined by section 4(1)(a) of the Act as a person who is not a child. It next confides the powers of a Juvenile Court to certain other classes of Courts in not only areas where no Juvenile Court has been established but also elsewhere. Since the offence with which the petitioner was charged, was, an offence of murder, that offence under section 28 read with the Second Schedule to the Code of Criminal Procedure, is normally triable exclusively by a Court of Session. That trial before the Court of Session has to be preceded by an inquiry under Chapter XVIII of the Code of Criminal Procedure by the concerned Magistrate in whom the Code of Criminal Procedure creates power to make an order for committal under section 207-A(6). If the Children Act had not been enacted and if there was no other law enjoining another procedure, the order made by the Magistrate committing the petitioner for trial before the Court of Session would have been entirely above reproach. But it was said that the exclusive power to try the offence with which the petitioner was charged, was conferred on the Juvenile Court under section 8 of the Children Act, which, excludes the power of the Court of Session to try the offence, and that, therefore, the Magistrate who presided over the Juvenile Court could make no order of committal. It is the correctness of this submission that we should investigate. Now the power conferred on the Juvenile Court, which as defined by section 4(1)(m) of the Children Act means “a Court constituted under section 7” of that Act, is, exercisable by that Court notwithstanding anything contained in any other law for the time being in force. It is the correctness of this submission that we should investigate. Now the power conferred on the Juvenile Court, which as defined by section 4(1)(m) of the Children Act means “a Court constituted under section 7” of that Act, is, exercisable by that Court notwithstanding anything contained in any other law for the time being in force. The non obstante clause occurring in section 8 consisting of the words ‘notwithstanding anything contained in any other law for the time being in force’, enjoins the exercise of power by the Juvenile Court under the Children Act, even if there be anything in the Code of Criminal Procedure to the contrary or even if it prescribes a procedure at variance with that prescribed by the Children Act. As to the power of the Juvenile Court, the Children Act, is, therefore, a complete and exhaustive Code, and the provisions of the Code of Criminal Procedure can have no relevance, unless the Children Act itself contains any provision to the contrary. That, in our opinion, is the meaning of the words “but save as otherwise provided in this Act” occurring in section 8(1) of the Children Act. Sub-section (1) of section 8 makes the Juvenile Court the exclusive repository of the power to try all cases in which a child is charged with the commission of an offence. The plain import of this provision is that the Juvenile Court and no other, shall have the power or jurisdiction to try an offence with which a child is charged, provided there is no other provision in the Children Act which divests the Juvenile Court of that exclusive power. Mr. Ramachandra Rao, the learned Government Pleader, however contended that sub-section (3) of section 8 transmitted some part of the exclusive power of the Juvenile Court to the High Court and the Court of Session and that the provision in that sub-section was what denuded the Juvenile Court of the exclusive power created by sub-section (1). If we can say that there is anything in sub-section (3) which can support the submission that notwithstanding the conferment of exclusive power on the Juvenile Court by sub-section (1), the Act distributed a part of that power between the Juvenile Court and some other Court, it should of course follow that the power of a Juvenile Court to try a child is not exclusive. The question, therefore, involves the construction of sub-section (3) of section 8 which empowers the exercise of powers conferred on a Juvenile Court “by the High Court and the Court of Session when the proceedings come before them in appeal, revision or otherwise.” It was contended by Mr. Government Pleader that although sub-section (1) of section 8 created exclusive power in the Juvenile Court to try all cases in which a child was accused of an offence, by enacting sub-section (3), the Legislature ‘otherwise provided’ within the meaning of those words occurring in sub-section (1) and that the exclusive power to try the petitioner was not, therefore, claimable by the Magistrate presiding over the Juvenile Court. The argument developed by Mr. Government Pleader was that the power conferred on the Juvenile Court was exercisable by the High Court or the Court of Session, when the proceedings come before them in appeal, revision or otherwise and that since the proceeding in the present case had otherwise come up before the Court of Session through an order of committal made by the Magistrate, the Court of Session could exercise the powers of the Juvenile Court, one of which was to try the petitioner who was a child in respect of the offence with which he was charged. Now it is clear from the non obstante clause occurring in sub-section (1) that the relevant provisions of the Code of Criminal Procedure contained in Chapter XVIII stand superseded in the case of a child by those contained in sub-section (1) of section 8 of the Children Act. Except to the extent there is any provision to the contrary in the Children Act, the law governing the trial of an offence with which a child is charged is the Children Act and not the Code of Criminal Procedure So, the power which could be exercised, where the accused is a child is the power of the Juvenile Court created by the Children Act. Where there is a Juvenile Court that power is exercised by the Magistrate presiding over the Juvenile Court under sub-section (1) of section 8. Under sub-section (2), where no Juvenile Court has been constituted, that power could be exercised by the Magistrates specified in clauses (a) and (b) of that sub-section. Where there is a Juvenile Court that power is exercised by the Magistrate presiding over the Juvenile Court under sub-section (1) of section 8. Under sub-section (2), where no Juvenile Court has been constituted, that power could be exercised by the Magistrates specified in clauses (a) and (b) of that sub-section. Similarly, where the proceedings involving an offence alleged to have been committed by a child arrive before the High Court or the Court of Session in appeal, revision or otherwise, the High Court or the Court of Session acquires the power to exercise the powers of the Juvenile Court in those proceedings. But what is manifest is whichever be the Court which tries the offence with which a child is charged, the power which could be exercised by that Court is the power of the Juvenile Court and that power is to try the offence and to dispose of it by an order authorised by section 60 of the Children Act. But the more serious question is whether it could be said that the Court of Session before which the petitioner is now facing a trial for murder, has acquired the power of the Juvenile Court under sub-section (3) of section 8 of the Children Act as we were asked to say. Mr. Ramachandra Rao, the learned Government Pleader had to admit that since the proceedings concerning the petitioner did not arrive before the Court of Session in appeal or in revision, the Sessions Judge could exercise power under section 8(3) only if it could be said that those proceedings have otherwise arrived before him within the meaning of that sub-section. The argument maintained was that they have so arrived through the committal order made by the Magistrate and that neither the order of committal nor the jurisdiction of the Sessions Judge could be called in question. The word ‘otherwise’ with which sub-section (3) of section 8 ends is an obscure expression the meaning of which, is not easy to understand. One thing which is clear from that sub-section is that where a Juvenile Court tries an offence under section 8(1) and the proceedings concerning that trial arrive at the High Court or before the Court of Session in appeal or in revision, the appellate or the revisional Court would acquire the powers of the Juvenile Court in disposing of the appeal the revision petition. But can it be said that that power could be transmitted by a Magistrate presiding over the Juvenile Court through the process of committal order under section 207-A(6) of the Code of Criminal Procedure? It seems to us that he could not. Section 8(1) of the Children Act invests a Juvenile Court with the exclusive power to try all cases in which the accused is a child. The conferment of that power is made in supersession of every other law which may create that power in some other forum. There is no other provision in the Children Act affecting the exclusive power created by section 8(1) in the Juvenile Court, save, what is contained in sub-section (3) of section 8. That sub-section does not expressly authorise a Juvenile Court to make an enquiry under Chapter XVIII of the Code of Criminal Procedure in disobedience to the clear mandate of sub-section (1) of section 8, which directs that the Juvenile Court shall, in all cases where the accused is a child, try the offence. The true position, therefore, is that whatever may be the nature of the offence with which a child is charged and whichever may be the Court which is invested with the power by the Code of Criminal Procedure to try that offence, the Juvenile Court is the only Court which can try it, subject of course to any fetters placed, on that power by the Children Act which created it. So, it is clear that although an offence of murder is exclusively triable by a Court of Session as provided by section 28 of the Code of Criminal Procedure which has to be read with the Second Schedule to the Code, with the enactment of section 8(1) of the Children Act, the power to try that offence was taken out of the Court of Session and confided to the Juvenile Court where the accused is a child. It should not be forgotten that an inquiry under Chapter XVIII of the Code of. Criminal Procedure is a proceeding which should precede the trial by the Court of Session. That inquiry can have no meaning and would be without competence or authority, if the offence is no longer triable by the Court of Sesssion but is exclusively triable by the Juvenile Court. Criminal Procedure is a proceeding which should precede the trial by the Court of Session. That inquiry can have no meaning and would be without competence or authority, if the offence is no longer triable by the Court of Sesssion but is exclusively triable by the Juvenile Court. Unless we could, therefore, say that there is some provision in the Children Act under which an offence of murder with which a child is charged can be tried by a Court of Session, notwithstanding the clear provision in sub-section (1) of section 8 that it could be tried only by a Juvenile Court, no inquiry under Chapter XVIII of the Code of Criminal Procedure, could be made or is permissible. We do not find anything in the Children Act, which in modification of the provisions of sub-section (1) of section 8, clothes the Court of Session with the power to try an offence of murder with which a child is charged. If that be so, the conclusion that should follow is, that since the offence could not be tried by a Court of Session, an inquiry which is only a preface to that trial is equally impossible. In that view of the matter, no other conclusion is possible than that the Magistrate presiding over the Juvenile Court, when he made an inquiry instead of making a trial of the offence with which the petitioner was charged, acted in disobedience to the provisions of section 8(1) of the Children Act. We do not feel persuaded to accept the suggested construction of the word ‘otherwise’ occurring in sub-section (3) of section 8 of the Children Act. That word, in our opinion means that if a proceeding arrives before the High Court or a Court of Session, otherwise than in appeal or revision but by a proceess known to law, the appropriate Court acquires the power to dispose of that proceeding in the exercise of the powers of a Juvenile Court. If an order of committal made by the Magistrate was not permissible, it is plain that the order of committal made by him in transgression of section 8(1) of the Children Act cannot properly, bring the proceedings before the Court of Session. If an order of committal made by the Magistrate was not permissible, it is plain that the order of committal made by him in transgression of section 8(1) of the Children Act cannot properly, bring the proceedings before the Court of Session. The channel through which proceedings could arrive before the Court of Session through sub-section (3) cannot be one constructed in plain transgression of the provisions of section 8(1) there being no other power in the Children Act authorising it. We feel inclined to take the view that in understanding the word ‘otherwise’ occurring in sub-section (3) we should adopt the ejusdem generis rule of construction. Since the word ‘otherwise’ is preceded by the words ‘appeal’ or ‘revision,‘that word has reference to something which is analogous to an appeal or a proceeding in revision. Although we are unwilling to make any very clear pronouncement on that matter, it appears to us that the word ‘otherwise’ may have a reference to a process through which a proceeding may arrive before the High. Court or a Court of Session such as on transfer, if such transfer is otherwise possible. But on that, we should say nothing more. But Mr. Ramachandra Rao, the learned Government Pleader suggested to us that there is something in section 11 of the Children Act which can support the view that even a Juvenile Court could make an inquiry under Chapter XVIII of the Code of Criminal Procedure and proceed to make an order of committal. That section reads: “11. Procedure in inquiries and trials.-Save as otherwise expressly provided by or under this Act, a competent Court, while holding an inquiry and in the trial of cases and the conduct of proceedings under this Act, shall, as far as practicable, follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the procedure laid down in the Criminal Procedure Code, 1898; or trials in summons cases.”; We do not think that the inquiry referred to in this section, includes an inquiry enjoined by Chapter XVIII of the Code of Criminal Procedure. The procedure prescribed by section 11 is the procedure for an inquiry and the trial under the Act. The procedure prescribed by section 11 is the procedure for an inquiry and the trial under the Act. That that is so is clear from the words “While holding an inquiry and in the trial of cases and the conduct of proceedings under this Act.” There are at least five sections in Chapter V of the Act which speak of inquiries which could be made under the Act and those sections are sections 39, 40, 41, 42 and 43. Section 39 provides for the initiation of an inquiry into the case of a neglected child. Section 40 prescribes the procedure to be adopted in making such inquiry, Section 41 authorises the Court to make suitable orders on the completion of the inquiry. Section 42 creates power to send a child to a place outside the jurisdiction of a Juvenile Court and finally, section 43 regulates the care of uncontrolled children. Similarly, sections 59, 60 and 61 occurring in Chapter VII speak of inquiries which could be made under the Act. The inquiry to which section 60 alludes is obviously the trial of an offence alleged to have been committed by a child. It is thus obvious that it is not possible to understand the word ‘Inquiry’ occurring in section 11 of the Children Act as comprehensive enough to include an inquiry under Chapter XVIII of the Code of Criminal Procedure. Further, the words ‘Save as otherwise expressly provided by or under this Act,‘with which the section opens, subject the provisions of section 11 to those of section 8, and, since Section 8 ‘directs the Juvenile Court to proceed with the trial of the offence with which the child is charged, whatever may be the offence, section 11 cannot be understood as authorising an inquiry under Chapter XVIII of the Code of Criminal Procedure in contravention of the imperative provisions of section 8. The decision of this Court in. The State of Mysore v. Mallappa1 on which Mr. Ramachandra Rao, the learned Government Pleader, depended, can be of no assistance to him. That was a case which arose under the Bombay Children Act (LXXI of 1948) the provisions of which are quite dissimilar to the provisions of the Mysore Children Act. Section 9 of the Bombay Act incorporates in some parts, provisions corresponding to those of section 8 of the Mysore Act. That was a case which arose under the Bombay Children Act (LXXI of 1948) the provisions of which are quite dissimilar to the provisions of the Mysore Children Act. Section 9 of the Bombay Act incorporates in some parts, provisions corresponding to those of section 8 of the Mysore Act. Section 8 of the Bombay Act incorporates provisions which correspond to section 8(3) of the Mysore Act, while section 9 of the Bombay Act corresponds to section 8(1) of the Mysore Act. Now the great difference between the Bombay Act and the Mysore Act consists of the fact that unlike section 8 of the Mysore Act, section 9 of the Bombay Act neither contains the non obstante clause which the Mysore Act contains, nor speaks of the exclusive power of the Juvenile Court to try all offences with which a child is charged. Our view that the exclusive power of the Court of Session to try an offence of murder derived from section 28 of the Code of Criminal Procedure becomes unavailable to the Court after the enactment of section 8(1) of the Mysore Children Act, rests both on the non obstante clause in the Mysore Act and the creation of exclusive power to try children which it creates. The view taken in The State of Mysore v. Mallappa1 that even in a case where a child is charged with an offence of murder, an inquiry under Chapter XVIII of the Code of Criminal Procedure can be made, depended upon section 9 of the Bombay Act whose language is at such great variance with that of section 8 of the Mysore Act that the assistance from that decision invoked by Mr. Ramachandra Rao, the learned Government Pleader, is really unavailable. Similarly, section 8 of the Bombay Act which confers power upon a Juvenile Court by the classes of Courts mentioned in that section, expressly provides for the exercise of those powers even in the exercise of original jurisdiction such as the trial of a case. Ramachandra Rao, the learned Government Pleader, is really unavailable. Similarly, section 8 of the Bombay Act which confers power upon a Juvenile Court by the classes of Courts mentioned in that section, expressly provides for the exercise of those powers even in the exercise of original jurisdiction such as the trial of a case. The words whether trying any case originally or in appeal or in revision as the case may be which occurs in section 8 of the Bombay Act, when contrasted with the words ‘when the proceedings come before them in appeal, revision or otherwise’ occurring in section 8(3) of the Mysore Act, make it clear that the content of the power to which the Bombay Act refers is of wider amplitude than the power which section 8(3) of the Mysore Act transmits. Mr. Patil is, in our opinion, right in asking us to say that the provisions of sections 13 and 84 of the Children Act afford unmistakable guidance that there could be no trial of a child by a Court of Session even if the offence is an offence of murder. Section 13 contains special provisions applicable to pending cases. It directs that a proceeding against a child pending on the date on which the Mysore Act came into force shall be continued in the Court in which it is pending, but that on that Court finding the child guilty of the offence, it shall transmit that finding with the child to the competent Court established under the Children Act so that an appropriate order may be passed under that Act. The emphasis of this section, it is clear, is upon the rehabilitation of the juvenile offender for the promotion of which, elaborate provisions were made by the Children Act, so that a trial of a delinquent child which, under the Code of Criminal Procedure, is so detrimental and injurious to its future interests, may be conducted under the more benevolent provisions of the Children Act. Likewise, section 84 which provides that there shall be only one appeal from any order made by a competent Court and that that appeal shall lie to the Court of Session is clearly incompatible with the theory that the Court of Session which can function as a Court of Appeal under that section can also function as a Court of Original Jurisdiction. The “competent Court” referred to in sections 13 and 84 as defined by section 4(1)(g)of the Act, means a Juvenile Court constituted under section 7; and in cases where no such Court has been constituted, a Court empowered to exercise the powers conferred on a Juvenile Court. The argument that a Court of Session could, through an order of committal made by a Juvenile Court, acquire jurisdiction to try an offence, if accepted, would be destructive of the right to prefer the only appeal permitted by the Act and cannot, therefore, be sound. In our opinion, in a case where a child, as defined by the Mysore Children Act, is accused of an offence of murder, it is not permissible for a Magistrate presiding over a Juvenile Court to make an order of committal under section 207-A(6) of the Code of Criminal Procedure. Whatever may be the offence with which the child is charged, it is the duty of the Juvenile Court to try that offence and proceed to make an appropriate order under section 60 of the Act. There is no other power which a Juvenile Court can exercise in that matter. The order of committal made by the Magistrate in the case before us was, therefore, beyond his competence. We quash that order. It is obvious that the Magistrate should now proceed with the trial of the offence from the stage at which it was- interrupted by the commencement of an inquiry. What the Magistrate should now do is to commence a trial of the offence which section 8(1) of the Children Act enjoins him to do. The matter should now goback to the Magistrate to be disposed of as directed. We therefore, allow this revision petition and send back the matter to the Magistrate to be disposed of as directed. S.V.S. ----- Petition allowed.