P.N.Bakshi, J. - (1.) SMT. Phoolmati was charged for an offence under S. 302 I. P. C. for having committed the murder of her husband at 11 p. m. on 2nd November, 1974. She pleaded not guilty. Witnesses were examined in support of the prosecution case. In her statement, the accused gave out that she was 15 years of age. 14-6-76 was fixed for defence evidence. The State Counsel moved an application in court for making inquiries with regard to her age with the intention of scrutinizing whether U. P. Children Act, 1952, would be applicable to the present case. The statements of Dr.B. K. Sharma, CMO & Dr. R. Prakash Radiologist, who examined the accused, were recorded. In view of the medical evidence, it appears to be clear that the age of the accused on the date of her examination i.e. 16-7-76 was about 17 years. There can be a difference of about 5-6 months on either side. The occurrence had taken place on 2-11-74, on which date the accused was arrested. Thus, according to the evidence on the record the age of the accused on the date of her arrest would be somewhere about 15 years.
(2.) UNDER the U. P. Children Act, 1952, Sec. 2 Clause (4), Child means "a person under the age of 16 years." Thus there can be no doubt that on the date of her arrest, the accused was a child within the meaning of the Act. This reference has been made by the Sessions Judge, Kanpur for the purpose of eliciting directions of this court regarding the forum of trial of the accused. Section 60 of the Children Act, 1952 deals with the establishment of Juvenile Courts for the trial of children under the provisions of the Act. It runs as follows :- "60. (1) The State Govt. may establish a Juvenile Court for any local area in a district and appoint a judge of such court. (2) For purposes of this Act, a court means the Juvenile Court established by the State Govt. for any area, and includes a Court of Sessions, and a Magistrate of the First Class specially empowered to exercise the powers of a court under this Act." Section 61 of the Act gives exclusive jurisdiction to Juvenile Courts or courts empoweed under S. 60 of the Act to try such offenders. It runs as follows : "(1) Where a Juvenile Court has been established for any local area, such court shall deal all cases in which a child is charged with the infringement of law 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 III; and (2) Where a Juvenile Court has not been established for any local area, no court other than courts empowered under S. 60 to exercise the powers of a Juvenile Court shall have power to deal with any case in which a child is charged with the infringement of law or to deal with or dispose off any other proceedings under this Act." The above section clearly contemplates of two contingencies; (1) where a Juvenile Court has been established for any local area and (2) where a Juvenile Court has not been so established. In the first case the Juvenile Court alone is vested with the jurisdiction to deal with offenders and to dispose off all other proceedings under the Children Act. In the second case, the Sessions Judge or the Magistrate specially empowered to exercise the powers of the court with respect to any particular area where an offence is committed has to deal with the offenders covered by the Children Act.
(3.) THE jurisdiction of the courts, mentioned above to try juvenile offenders is not dependant upon the quantum of punishment, which may be prescribed under the Indian Penal Code for any particular offence. Whether an offence is punishable with death or transportation for life or whether it is punishable with a few years rigorous imprisonment and fine under the provisions of Indian Penal Code, is not at all material for determining the jurisdiction of the courts authorised to try offenders under the Childrens Act. All types of offences are covered and triable under the provisions of the said Act. THE only criterion for applying the Children Act is that the offender must be a child i. e. below 16 years of age. Section 75 of the Children Act runs as follows:- "Continuation of proceedings against child on his attaining specified age- For the purposes of this Act, a person shall be deemed to be a child, if at the time of the initiation of any proceedings against him under this Act or at the time of his arrest in connection with which any proceedings are initiated against him under the Act, such person has not attained the age specified in CI. (4) of S. 2 : Provided that if during the course of the proceedings under this Act such person attains the age specified in the said clause, the proceedings already commenced shall be continued and orders may be passed in respect of such person under this Act, as if such person was a child notwithstanding anything to the contrary in this Act." In the instant case the accused was arrested on the spot on the date of the commission of the offence viz. 2nd Nov. 74. On that date, she was 15 years of age and thus she would be triable by the court exercising powers and functions under Ss. 60 and 61 of the Children Act. By Notification No. 627 (P) XXXVI-S W-576 (P)- 61 dated 20th June, 1962, the provisions of the Children Act came into force in the Districts of Kanpur, Allahabad, Varanasi, Agra, Lucknow and Bareilly, with effect from the aforesaid date. Thereafter, it appears that by Notification No. 6686/XXXVI/C.K./14 (P)-67 dated 6th January, 1967, the State Government specially empowered the City Magistrate Kanpur to exercise powers of the Juvenile Court:;