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High Court Of Madhya Pradesh
P.K.Tare, C.J., S.M.N.Raina and M.L.Malik, JJ.
State of Madhya Pradesh
Versus
Ramesh Nai
Decided On : Oct 14,1974
Per Tare, C.J. - Section 67 of the Adhiniyam is not superfluous. But for suspension of section 29-B of the Criminal P.C., 1898, the Juvenile Courts constituted under the Adhiniyam could not have tried the offences punishable with death or imprisonment for life. [Para 17
(2) General Clauses Act, 1957 (MP) - S. 13 - General Clauses Act, 1897 (Central) - S. 8 - applicability of - apply only where a different intention does not appear.
(3) Bal Adhiniyam, 1970 - (MP) - S. 67 - reference to section 29-B of Cr. P.C. of 1898 cannot be construed as reference to section 27 of the Cr. P.C. of 1973, because different intention appears - General Clauses Act, 1957 (MP) - S. 13.
Per Full Bench - Applicability of section 13 of the M.P. General Clauses Act, 1957 or section 8 of the Central General Clauses Act, 1897, is dependant on the fact whether a different intention appears. If a different intention appears these sections are not applicable. [Paras 17 & 72
Per Tare, C.J. - Section 27 of the Criminal Procedure Code, 1973, although drafted on lines of section 29-B of the Code of 1898 are not pari materia. Section 27 of the new Code clearly envisages a different intention to the effect that Juvenile Court may try all offences which are not punishable with death or imprisonment or life and commit all delinquent children to children’s homes. [Paras 17 & 18
Per Malik, J. - Section 8 of the Central General Clauses Act would be attracted and the Bal Adhiniyam could be read with reference to the modified re-enacted provision wherever reference to section 29-B was made in the Act. Section 8 of the Central General Clauses Act permits reading of are-enacted provision, though in a modified form provided the provision did not evince a different intention. In section 27 of the new Code different intention is not evinced. Section 67 of the Bal Adhiniyam read with reference to section 27 of the New Code (which stands substituted for section 29-B), makes the position clear that the provision of the Code in section 27 is not to apply. [Para 72
(4) Bal Adhiniyam, 1970 (MP) - S. 6 - is not saved by Article 254 (2) of the Constitution of India - section 27 of the New Code of Criminal Procedure shall prevail - after enforcement of the New Code, Juvenile Court cannot try offences punishable with death or imprisonment for life.
(5) Constitution of India - Art. 254 (2) - Conditions necessary for application - earlier State Act receiving the assent of President not saved if the contrary Central Act is later - Bal Adhiniyam, 1970 (MP) - S. 6.
(6) Criminal P.C. 1973 - Ss. 27, 26 & 4 - over side provisions of section 6 of the M.P. Bal Adhiniyam, 1970 - Juvenile Courts cannot try offences punishable with death or imprisonment for life.
Per Tare, C.J. (Raina, J. agreeing) - There is no doubt about the repugnancy between section 6 of the M.P. Bal Adhiniyam, 1970 and sections 4, 26 & 27 of the new Criminal Procedure Code, 1973, in as much as the State Act encompasses within its ambit the offences punishable with death or imprisonment for life, which are exclusively triable by a Sessions Court [Para 18
Sub-clause (2) of Article 254 of the Constitution would save section 6 of the M.P. Bal Adhiniyam, 1970, as long as Criminal Procedure Code, 1898, was in force But the said provision of the Constitution would not be applicable to the new Criminal Procedure Code, 1973, which would not be an earlier law made by the Parliament or an existing law. On the other hand the matter will be governed by the proviso and in fact the Parliament did enact section 26 and section 27 of the Criminal Procedure Code 1973, being cognizant of all State enactments with respect to delinquent children. Therefore, if sub-clause (2) of the said Article ceases to be applicable to the Criminal Procedure Code. 1973, the matter will squarely be governed by sub-clause (1) of the said Article and in case of repugnancy the provision of the State Act will be rendered void to the extent of repugnancy, as provided by sub-clause (1) of the said Article. [Para 19
Section 6 of the Madhya Pradesh Bal Adhiniyam, 1970, is void to the extent of repugnancy with the provisions of sections 4, 26 and 27 of the Criminal Procedure Code, 1973, and as the former is not saved by virtue of Article 254 (2) of the Constitution of India, the said provision is rendered void by virtue of Article 254 (1) of the Constitution of India and as a result, the Juvenile Courts constituted under the Madhya Pradesh Bal Adhiniyam, 1970, are incompetent to deal with cases involving offences to which the provisions of the Code of Criminal Procedure, 1973, apply and which are exclusively triable by the Court of Session and which are punishable with death or imprisonment for life. [Paras 29, 42 & 44
Per Malik J. (minority view) - section 27 of the New Code would not effect the jurisdiction of the Juvenile Courts to try cases even involving punishment of death and life imprisonment. [Para 73
(7) Bal Adhiniyam, 1970 (MP) - Ss. 6 & 67 - offences committed by a child punishable with death or imprisonment for life - was exclusively triable by the Juvenile Court prior to the enforcement of the New Code of Criminal Procedure 1973.
Before the enforcement of the New Code of Criminal Procedure, 1973, on the 1st April, 1974, Article 254 (2) of the Constitution of India saved the provisions of the M.P. Bal Adhiniyam, 1970. Even offences punishable with death or imprisonment for life committed by a child were exclusively triable by the Juvenile Court. 1974 JLJ 587 approved. [Paras 19, 30, 33, 40, 59 & 74
( 1. ) THIS order shall govern the disposal of both the cases mentioned above. These are references under Section 438 of the Code of Criminal Procedure. 1898, made bv the Fourth Additional Sessions Judge, Jabalpur, and the Fifth Additional Sessions Judge. Jabalpur. respectively recommendinp thettal orders, dated 30-31973 and 21-4-1973, passed bv the Juvenile Court. Jabalpur, in Criminal Case No. 120 of 1972 and Criminal Case No. 54 of 1973, respectively, committing the respective accused to stand his trial in the Sessions Court for an alleged offence under Section 376, I. P. C, be quashed on the ground that in view of the provisions of the Madhya Pradesh Bal Adhiniyam. 1970. a Juvenile Court alone has the jurisdiction to hold an inquiry and consequently, the Sessions Court has no jurisdiction to proceed with the trial of the respective accused.
( 2. ) IN the present case, the two accused, Ramesh and Shivram alias Munna, who are boys aged about 14 and 11 vears respectively, were produced before the Juvenile Court, Jabalpur. presided over bv Kumari Sheela Khanna and Shrimati Bai-pai, Honorary Magistrate, for an alleged offence under Section 376, I. P. C. The prosecution allegation was that on 11-5-1972 at about 2 p. m. . the prosecutrix, Mst. Janak Dulari (P. W. 4) a eirl aaed about 10 vears was plaving in front of her house with other girls. The accused went there and took the prosecutrix in a room and committed rape on her. When the prosecutrix cried, both the accused ran awav. The prosecutrix related the incident to her mother and accordingly, the first-information-report was lodged at the police station on the same day. The defence of the accused was that they had been falsely implicated.
( 3. ) IN the connected case, namely. Criminal Revision No, 315 of 1973, the prosecution alleged that on 30-12-1972 the prosecutrix, Mst. Bhuribai, a girl aged about 7 vears. had gone to the jungle along with the accused, Onkar, At about 11 a. m. the accused committed a rape on her. The prosecutrix started bleeding. She reported the matter to her mother, Mst. Jeerabai (P. W. 4), who narrated the incident to her husband, Kalansingh, Kalansingh lodged the first-information-report with the Dolice, who carried on the investigation and put up a challan against the accused. The accused was medically examined and the Juvenile Court found his age to be between 14 to 15 years. As such, the Juvenile Court came to the conclusion that the accused was a child. But the Juvenile Court, instead of holding an inquirv against the delinquent child, as required by the Madhya Pradesh Bal Adhiniyam, 1970, committed him to stand his trial in the Sessions Court. When the accused appeared before the Sessions Court, the Additional Sessions Judge expressed the view that the case was exclusively triable bv a Juvenile Court and the Sessions Court had no jurisdiction to hold a trial. Hence these references bv the respective Additional Sessions Judges.
( 4. ) THE question involved in these references is whether the Juvenile Court has the exclusive jurisdiction to hold an inquirv into the alleged offences bv delinquent children, who at the date of the offence are below the age of 16 vears or whether such delinquent children can be tried for the alleged offence bv the Sessions Court in accordance with the provi-sions of the Code of Criminal Procedure. Before we consider the instant question it is necessary to examine the provisions of the Madhya Pradesh Bal Adhinivam. 1970, and the Madhya Pradesh Bal Nivam, 1971, as also the relevant provisions of the Code of Criminal Procedure 1898, and the provisions of the Code of Criminal Procedure, 1973. as also Article 254 of the Constitution of India, coupled with the Entry in List III, i. e. the concurrent list under Schedule VII of the Constitution.
( 5. ) THE preamble of the M. P. Bal Adhiniyam, 1970, mentions that it is an Act to provide for the care, protection, maintenance, welfare, training, education and rehabilitation
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