Gurnam Singh, J. - (1.) ROHTASH , son of Chuni Lal Mittal, resident of village Hodel, Tehsil Palwal, District Gurgaon, Respondent No. 2, is being prosecuted under Section 302, Indian Penal Code, for causing the death of Subhash on 23rd December, 1974. The Judicial Magistrate 1st Class, Palwal, committed Rohtash to the Court of Session, Gurgaon, to stand his trial under Section 302, Indian Penal Code. The trial of the case commenced on 15th September, 1975 in the Court of Session presided by Shri Sarup Chand Goel. The case could not be completed as the complainant in the case, had applied to the High Court for the transfer of the case to some other Court. In the meantime Shri Sarup Chand Goel, Sessions Judge, retired from service. The trial of the case, therefore, commenced before Shri Shiv Dass Tyagi, the successor of Shri Sarup Chand Goel. The prosecution evidence was completed and the case was adjourned to 5th of May, 1978 for recording the statement of the accused -Respondent No. 2.
(2.) IN the meantime Harbans Lal, J., in State of Haryana v. Ishwar Cr. M. 5415 -M/77, decided on 20th January, 1978, held as under: The scheme of the Act clearly appears to be that in case of children as defined in the Act, all offences have to be tried by the Children's Court. In view of this, it was incumbent on the Magistrate concerned to come to a positive conclusion if the Respondent was a child as defined under the Act or not. If in his opinion, the Respondent was not a child, he had the jurisdiction to commit the accused for trial to the Court of Sessions and if the Respondent was found to be a child, it was incumbent on the Magistrate to forward the accused to the Children's Court. In view of the finding in State of Haryana v. Ishwar (supra), Shri Shiv Dass Tyagi, Sessions Judge, taking the date of birth of Rohtash Respondent No. 2 as 19th February, 1959, came to the conclusion, that it becomes mandatory to decide conclusively as to whether the accused -Respondent No. 2 was a child within the meaning of the Haryana Children Act, 1974 (hereinafter referred to as the Act) and for following the procedure laid down by Harbans Lal J., in State of Haryana v. Ishwar (supra), remitted the case to the committing Court or to his successor Court for holding an enquiry and coming to a positive conclusion as to whether the accused -Respondent No. 2 was a child as defined under the Act or not and if he is found to be a child then it would be incumbent upon the Magistrate to forward him to the concerned Children's Court after being dealt with under the provisions of the Act. It is against this order of the learned Sessions Judge, Rohtak, Camp at Gurgaon dated 5th June, 1978 that Brij Kishore, brother of Subhash deceased has filed this petition under Section 397 read with Section 482, Code of Criminal Procedure, 1973 (hereinafter referred to as the Code of 1973) for quashing the order passed by the Sessions Judge on 5th June, 1978, copy annexure P. 1.
(3.) NOTICE of this petition was given to the Respondents and the counsel for the parties have been heard.;