ORDER : A. Badharudeen, J. Order dated 10.09.2024 in Crl.M.P.No.1099/2024 in S.C.No.480/2024 on the files of the Special Court for trial of cases relating to Atrocities and Sexual Violence against Women and Children (Protection of Children from Sexual Offences Act 'POCSO Act' for short), is under challenge in this petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS' for short). 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the impugned order. 3. In this matter prosecution alleges commission of offences punishable under Section 323 of the Indian Penal Code ('IPC' for short) as well as Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 ('JJ Act' for short). Prosecution case is that the accused, who was the manager of ‘Kaliveedu Day Care’ physically assaulted the victim child, aged 1 ½ years, of the defacto complainant from 05.12.2016 to 23.05.2017 and thereby caused mental and physical suffering to the child. Initially, the case was numbered as C.C.No.1317/2017 and charge was framed and trial proceeded. Thereafter it was brought to the notice of the learned Magistrate that since offence under Section 75 of the JJ Act is involved, the case shall be tried by the Children's Court. Accordingly, the learned Magistrate, as per the impugned order, committed the case under Section 207 of Cr.P.C to the Children's Court. 4. While assailing the order it is pointed out by the learned counsel for the petitioner that in this matter since trial has already commenced and substantially progressed, whether the committal thereafter is legally sustainable, is the question to be decided. He also pointed out that, if so, what is the fate of the evidence recorded by the learned Magistrate? 5. According to the learned counsel for the petitioner, since the trial has commenced and substantially progressed, committal of the case to Children's Court is illegal and the same would require interference. 6. Whereas the learned Public Prosecutor strongly opposed the contentions on the submission that as per Section 86 of the JJ Act, 2015, Children's Court alone has the jurisdiction to try offences under the JJ Act and, therefore, the learned Magistrate rightly committed the case before the Children's Court, and therefore, the impugned order is only to be justified. 7. 6. Whereas the learned Public Prosecutor strongly opposed the contentions on the submission that as per Section 86 of the JJ Act, 2015, Children's Court alone has the jurisdiction to try offences under the JJ Act and, therefore, the learned Magistrate rightly committed the case before the Children's Court, and therefore, the impugned order is only to be justified. 7. In the decision reported in [ 2024 KHC 474 ], Anil Kumar M.R. v. State of Kerala this Court held as under in paragraphs 5, 6, 7, 8, 12 and 13 : “5. In this matter, the point argued by the learned counsel for the petitioner is that this crime was registered for an occurrence on 04/12/2018. During the time of occurrence, S.86(4) of the JJ Act, a new provision introduced as per the amendment, came into force from 01/09/2022, was not in force. Since the amendment has no retrospective operation, the present case cannot be transferred in tune with the mandate of S.86(4) of the JJ Act and the Magistrate alone has jurisdiction to try the case. Accordingly, he prays for setting aside the order impugned. 6. Whereas it is submitted by the learned Public Prosecutor that S.86(4) of the JJ Act has application in the pending cases also and therefore, the learned Magistrate rightly passed Annexure A3 order and the order impugned does not require any interference. 7. Extracting the legal provisions prior to amendment with effect from 01/09/2022, S.86 of the JJ Act provided as under: "S.86. (1) Where an offence under this Act is punishable with imprisonment for a term more than seven years, then, such offence shall be cognizable, non-bailable and triable by a Children's Court. (2) Where an offence under this Act is punishable with imprisonment for a term of three years and above, but not more than seven years, then, such offence shall be cognizable, non-bailable and triable by a Magistrate of First Class. (3) Where an offence, under this Act, is punishable with imprisonment for less than three years or with fine only, then, such offence shall be non-cognizable, bailable and triable by any Magistrate" 8. (3) Where an offence, under this Act, is punishable with imprisonment for less than three years or with fine only, then, such offence shall be non-cognizable, bailable and triable by any Magistrate" 8. After the amendment, S.86(4) of the JJ Act has been introduced and the same reads as under: "86(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or the Commission of protection of Child Rights Act, 2005 or the Protection of Children from Sexual Offences Act, 2012, offences under this Act shall be triable by the Children's Court." xxxx xxxx xxxx xxxx 12. Thus the legal position as regards operation of the procedural law, which would decide the forum in legal proceedings, unless expressly or impliedly provides otherwise, the same is retrospective in operation and the new forum could have jurisdiction to consider the cases pending before the introduction of the amendment and in relation to occurrence before the amendment. 13. Having scrutinized the legal position in this frame, in view of the introduction of S.86(4) of the JJ Act, all offences covered by S.86(4) of the JJ Act shall be triable by the Children's Court and not by the Magistrate Court. Thus, the impugned order, holding the said view, is perfectly justifiable and accordingly, Annexure A3 order in CMP No.16060/2023 in C.P.No.94/2023 on the files of the Judicial First Class Magistrate Court - I, Nedumangad, stands confirmed.” 8. It is pointed out by the learned counsel for the petitioner that, recently the Apex Court has examined the issue of fair trial in the decision Amandeep Singh Saran v. State of Chhattisgarh, [ (2024) 6 SCC 541 ], and the same has application in the present case. 9. On reading the decision in Amandeep Singh Saran v. State of Chhattisgarh’s case (supra), the Apex Court considered a case where 10 out of 86 witnesses were examined by the Chief Judicial Magistrate in a case involving offence under Section 409 of IPC and other Magisterial offences, where the Apex Court invoked power under Section 323 of CRPC to commit the case to the Sessions Court and in paragraph No.39 it was held as under : “39. A scanning of the provisions under Section 323 CrPC would show that in any inquiry or trial before a Magistrate, “which expression would take in the Chief Judicial Magistrate as well”, it appears to him at any stage of the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Session, it should commit to that court. Thus, it is evident that before signing the judgment, the power under Section 323 CrPC is available to be exercised. Certainly, the sine qua non for exercise of the power under Section 323 is the opinion of the Magistrate concerned that it is a case which ought to be tried by the Court of Session. In view of the provision, under normal circumstances, it is desirable to direct the Court of the Magistrate concerned to exercise the power after due consideration. However, in view of the peculiar circumstances of this case which we have already taken into account, id est that the maximum penalty imposable by the Court of Chief Judicial Magistrate is imprisonment not exceeding 7 years, that taking into account the fact that the appellant herein had already undergone incarceration for a period of more than only 10 out of 86 witnesses on the side of the prosecution have been examined, we direct the Court of the Chief Judicial Magistrate, Raipur to commit the case under trial against the appellant herein, arising out of FIR No.22 of 2015 of Police Station New Rajendra Nagar, Raipur in the State of Chhattisgarh, to the Court of Session to which he is subordinate, to enable that court to conduct the trial in the said case. This shall be done within a period of three weeks from the date of the receipt of the copy of this judgment. Upon such committal and receipt of the case, the Court of Session concerned shall proceed with the trial of the case in accordance with law under Chapter XVIII CrPC. The Court of Session concerned shall make an endeavour to conduct and conclude the trial expeditiously.” On reading the ratio of the case, the same has no bearing on the facts of this case. 10. The Court of Session concerned shall make an endeavour to conduct and conclude the trial expeditiously.” On reading the ratio of the case, the same has no bearing on the facts of this case. 10. As far as the question raised by the learned counsel for the petitioner is concerned, when a court which lacks inherent jurisdiction to try the case or to record evidence, proceeds on the wrong premise that such power is available, the said proceedings are indubitably non-est and the same have no legal base to withstand. Therefore, the trial proceedings carried out by the Magistrate in the instant case is non-est in the eye of law and the same to be reckoned as effaced. In the instant case, no doubt, offence under Section 75 of the JJ Act is alleged and therefore the same shall be triable by the Children’s Court, established under the JJ Act in view of the mandate under Section 86(4) of JJ Act as held in Anil Kumar M.R. v. State of Kerala’s case (supra) and not by any other courts. Therefore, the order passed by the learned Magistrate committing the case is perfectly justifiable and therefore there is no need to interfere with the order impugned. 11. Therefore, this petition is liable to fail and is accordingly dismissed. 12. Interim order shall stand vacated. Registry is directed to forward a copy of this order to the jurisdictional court for information and further steps.