A child cannot be tried for an offense with adults, as mandated by S.23 of the Kerala Children Act, 1972.

1This matter arising in Calendar Revision in pursuance of an order passed by a learned Single Judge of this Court issuing notice to the parties in Sessions Case No. 66 of 1979 on the file of the Court of Sessions, Kottayam, raises a question of importance relating to the forum for the trial of a child for an offence punishable under S.302 IPC.

2The point that arises for determination in this revision is whether the trial of Jojo, aged 12,4th accused in Sessions Case No 66 of 1979 before the Court of Sessions, Kottayam, along with 1st, 2nd, 3rd and 5th accused, who are all adults, is proper and legal in view of the express prohibition of such a trial under S.23 of the Kerala Children Act, 1972 (Act 3 of 1973) (hereinafter called the 'Act' or the 'Kerala Act'). In pursuance of an order of committal passed by the Judicial Magistrate of the First Class, Palai, the learned Sessions Judge, Kottayam. took cognizance of the offences alleged to have been committed by the accused persons, numbered the case as SC. No. 66 of 1979 and after hearing both parties and on consideration of the records before him, framed a charge against the accused persons for offences punishable under S.143, 148, 324, 326 and 302 IPC. read with S.149 thereof, for having committed murder of one Joseph and other allied offences at about 9 30 A. M. on December 17,1978, The first accused is the father and the 2nd. 4th and 5th accused are his children while 3rd accused is a stranger The learned Sessions Judge, unnoticing the provisions in S.23 of the Act, after framing charges against the accused persons, proceeded with the trial and examined a number of witnesses. It was only at the time when the Investigating Officer was examined that the fact that the 4th accused was a child coming within the purview of S.23 of the Act was noticed by the learned Sessions Judge, The proceedings were immediately stopped and a report about this was made to this Court and it was on the basis of this report, as stated earlier, the learned Judge in charge of the District issued notice to the parties and thus the matter came up before this Court.

3The Kerala Act was enacted to provide for the care, protection maintenance, welfare, training, education and rehabilitation of neglected or delinquent children and for the trial of delinquent children in the State of Kerala. S.2 of the Act deals with definitions and the definition of the 'child' is contained in S.2(d) which reads:
" "Child" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years a ,d when used with reference to a child sent to a children's home or special school applies to that child during the whole period of the stay, notwithstanding that during the period of such stay, the child may have attained the above age limit."
Under S.2(e) "Children's Court" means 'a court constituted under S.4 of the Act' "Delinquent child" has been defined under S.2(1) to mean a child who has been found to have committed an offence. "Offence" under S.2(m) of the Act means an offence punishable under any law for the time being in force. "Competent Authority" also has been defined under S.2(g) of the Act. S.6 deals with the powers of Children's Court. Chapter IV of the Act containing S.17 to 26 deal with delinquent children S.39 of the Act appearing in Chapter V speaks of the procedure to be adopted in inquiries, appeals and revision proceedings S.19 states that where a child having been charged with an offence appears or is produced before a children's court, it shall hold the inquiry in accordance with the provisions of S.39 and may, subject to the provisions of the Act, make such an order in relation to the child as it deems fit S.23 of the Act unequivocally states that notwithstanding anything contained in S.239 of the Code Criminal Procedure, 1898 (S.223 of the Code of Criminal Procedure, 1973) or in any other law for the time being in force, no child shall be charged with or tried for a