K. S. SIDHU, J. - (1.) THIS is a Criminal Reference under section 395, Cr. P. C. made by the Additional Sessions Judge, Ajmer. It has arisen in the following circumstances.
(2.) A report was lodged by Chhotu Singh with the Ajmer Police on March 14,1978 alleging that Mahavir Singh, Sumer Singh and Prem Singh had abducted his son Udaisingh in order to murder him and that they had actually murdered him. On investigation, the police submitted a charge-sheet against Mahavir Singh and Sumer Singh in the Court of Judicial Magistrate 1st class No 4, Ajmer, on April 22, 1978, praying for proceedings against them for their trial under sections 302 and 364, IPC. The case against the third accused, namely, Prem Singh, a child, was filed in the Children's Court, Ajmer for proceedings according to law. By his order, dated, May 16,1978, the Judicial Magistrate 1st class, Ajmer, committed Mahavir Singh and Sumer Singh to the Court of Sessions at Ajmer for trial under sections 302 and 364, I. P. C. The accused persons challenged the order of commitment and filed a revisions against it. By his order, dated Sept. 10, 1979 the learned Additional Sessions Judge held that both Mahavir Singh and Sumer Singh were below 16 years of age, and as such each of them was entitled to be treated as a "child" as defined in clause (d) of sub-section (1) of section 2 of the Rajasthan Children Act, 1970 (hereafter called the Act ). He, however, further held that though they were children, they could still be tried by the Court of Sessions at Ajmer under sections 302 and 364 I. P. C. in view of the provisions of sec. 27 of the Code of Criminal Procedure, 1973 (hereafter called the New Code ). The revision petition was, therefore, dismissed. The learned Additional Sessions Judge thereafter commenced trial of Mahavir Singh and Sumer Singh on the charges punishable under sections 302 and 364 I. P. C. Undaunted by the earlier refusel of the learned Judge to entertain the objection to his jurisdiction, the defence counsel made another application repeating the same objection that the learned judge had no jurisdiction to try these children for the offences charged against them. The learned judge dismissed the said application on April 2, 1980 stating that he had already held that he had no jurisdiction to try these children on charges under sections 302 and 364 I. P. C. He further held that he was not competent to review his earlier order dated September 10, 1979. Meanwhile, the learned judge, who passed the afore-mentioned orders was transferred. When the case came up before his successor on May 15, 1980, for final arguments in the trial, counsel for the children raised a preliminary objection to the effect that the learned trial judge had no jurisdiction to convict and sentence the children even if he found that they had committed the offences for which they were on trial. The learned judge seems to agree that he had no jurisdiction to try the children or to convict and sentence them. He, however, feels that in view of the earlier orders passed by his predecessor on September 10, 1979 and April 2, 1980, he has no option but to proceed with the trial and conclude it, unless the said orders are set aside by the High Court as erroneous. That is why the learned judge has made the present reference, recommending that the High Court may, in effect, set aside the said orders and transfer the case from his court to the Children's Court, Ajmer so that the children be dealt with by the said court in accordance with the provisions of the Act.
(3.) ON receipt of this reference and examining the record, this court considered it necessary to hear the view point on behalf of the State. Mrs. Kamla Jain a Public Prosecutor was good enough to appear for the State. She rendered valuable assistance to the court. In order to have a better appreciation of the question of jurisdiction raised in the reference, it will be helpful to start with a reading of the relevant provisions of the Act. Section 2 (1) (d) of the Act defines a "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 A 'delinquent child' as defined in section 2 (1) (i) means a 'child' who is found to have committed an offence. Section 2 (1) (g) defines 'competent authority to mean in relation to delinquent children, a 'children's Court, constituted under section 5, and where no such Children's Court has been constituted, it includes the court of a District Magistrate or the Sub-divisional Magistrate or any Magistrate of the First Class. Sub-sec. (1) of section 7 confers exclusive jurisdiction on the Children's Court to deal with proceedings under the Act relating to delinquent children. Sub-section (3) of section 7 lays down that the powers conferred on a Children's Court by the Act may also be exercised by the High Court and the Court of Sessions when the proceeding comes before them in appeal or revision or otherwise. Sec. 32 provides for the determination of the age of a person who appears to be a child. It laws down that the competent authority shall make due inquiry as to the age of that person and shall record a finding whether the person is a child or not. Section 20 deals with inquiry by Children's Court regarding delinquent children. It lays down that where a child having been charged with an offence appears or is produced before a Children's Court, the said court will hold an inquiry in accordance with the provisions of sec. 39 of the Act. Section 39 lays down, inter alia, that inquiry under section 20 regarding a child shall be held, as far as my be, according to the procedure laid down by the Code of Criminal Procedure, 1898 (hereafter called the old Code), for trial in summons cases Section 21 deals with orders that may be passed regarding delinquent children as a result of the inquiry under section 20. It lays down that if the Children's Court finds as a result of the inquiry that a child has committed an offence, it may not withstanding anything to the contrary contained in any other law, for the time being in force allow the child to go home after advice or admonition, direct him to be released on probation of good conduct or make an order directing that the child be sent to a special school. Section 21 of the Act makes it further clear in so many words that, notwithstanding anything contrary contained in any other law for the time being in force, no delinquent child shall be sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing security. It will be seen from the above conspectus of the relevant provisions of the Act that in areas like Ajmer in which the Act is in force the Children's Court has exclusive jurisdiction to deal with all proceedings under the Act relating to delinquent children. If a child, charged wtih an offence, appears or is produced before a Children's Court such court shall deal with him and hold inquiry in relation to him following the procedure prescribed by the Code of Criminal Procedure, 1973 (here after called the New Code) for trial of summons cases. It is not worthy that the legislature has deliberately eschewed the use of the words 'accused', 'trial', 'conviction' and 'sentence' in relation to the proceedings which the Children's Court may hold in relation to a child. It may for example hold an 'inquiry', as distinguished from a 'trial', with a view to finding out if the child concerned has committed any offence or not. If he has not committed any offence, the Children's Court shall of course acquit him. But if he is found to have committed any offence, the Children's Court is forbidden, by necessary implication, from passing an order of conviction against him. Nor can such a court award any sentence of death or imprisonment of any kind to delinquent child. If the child is above 14 years of age and earns money, he may be ordered, and not sentenced, to pay a fine, and if he does not pay the fine, he cannot be committed to prison in default of payment of fine or even in default of furnishing security. ;