SESSIONS JUDGE Vs. PERUMAL

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge of Tirunelveli to transfer J. C. No. 264 of 1972 pending against juvenile Pandi, from the file of the Juvenile Court. Tirunelveli, to the Court of Session. The circumstances under which the reference has been made are these. A charge-sheet, was filed by the Police in the Court of the Sub-Magistrate, Nanguneri against two persons, one Perumal and his son. the said Pandi, on the allegation that Pandi. committed an offence of murder (Section 302 of the Indian Penal Code) and that the father abetted the commission of the said offence and was (punishable under Section 302 read with Section 34 or Section 302 read with Section 109 I. P. C. At the time of the filing of the charge-sheet Pandi was less than eighteen years of age and was a young person as defined in Section 3 of the Madras Children Act, 1920. The case against him was split up and the case against the father was taken on file by the Sub-Magistrate. Nanguneri. as P. R. C. No. 21 of 1973. Then a separate charge-sheet was filed against Pandi in the Juvenile Court, Tirunelveli, and it was taken on file as J. C. No. 264 of 1972, The trial of that case is pending in that Court. In respect of Perumal, the Sub-Magistrate. Nanguneri, held a preliminary enquiry under Chapter XVIII of the Code of Criminal Procedure, and committed Perumal to take his trial in the Court of Session for an offence under Section 302 read with Section 34 I. P. C. The case was taken on file by the Court of Session as S. C. No. 112 of 1972. Charges under Section 302 read with Section 34 or in the alternative under Section 302 read with Section 109 I. P. C. were framed. The trial of that case is over and the case is pending delivery of judgment.

(2.) IT was at this state the learned Sessions Judge made this reference to transfer J. O. No. 264 of 1972 from the file of the Juvenile Court to the Court of Session to be tried by the Sessions Judge, before pronouncing judgment in S. C. No. 112 of 1972. He has adopted this course on the basis of the judement of Maharajan, J. , D/- 22-6-1972 in Crl. R. C. No. 444 of 1972 in re Karalan 1972 Mad LW Cr 196 wherein the learned Judge observed: Where a plurality of persons jointly take part in an offence and some of them happen to be adults and others happen to be juveniles, it is eminently desirable and certainly permissible that the same forum tries all the accused, adult and juvenile, not jointly but separately, trying the adult accused in accordance with the provisions of the Code of Criminal Procedure and the juvenile accused in accordance with the provisions of the Madras Children Act and the rules framed thereunder. Such a procedure will. besides avoiding conflict of decisions in respect of the same occurrence, instil in the minds of the accused the confidence that even handed justice is rendered to them at least in the matter of appreciation of the evidence, without any discrimination being shown merely on the ground of age.

(3.) IN Crl. M. E. No. 996 of 1973 a similar reference has been made by the Assistant Sessions Judge of Tirunelveli to transfer J. C. No. 239 of 1972 from the file of the Juvenile Court to the Court of Session to be tried by the Assistant Sessions Judge who tries S. C. No. 119 of 1972. There it was alleged that two adults committed offences under Sections 450 and 376 I. P. C. and a juvenile abetted the offences. The Sub-Inspector of Police filed a charge-sheet against the adults in the Court of the Sub-Magistrate, Tenkasi, The Sub-Magistrate took it on file as R R. C. No, 10 of 1972 and committed the accused to the Court of Session. The case was taken on file as S. C. No, 119 of 1972 and was made over to the Assistant Sessions Judge for trial. The Sub-Inspector of Police filed a separate charge sheet under Sections 450 and 376 I. P. C, against the* juvenile in the Juvenile Court and it was taken on file as J. C. No. 239 of 1972. The trial is vet to start both before the Assistant Sessions Judge and the Juvenile Court. It was at that stage that the reference was made by the Assistant Sessions Judge to transfer J. C. No. 239 of 1972 to be tried by the same Judge who tried S. C. No. 119 of 1972. The reference has been made on the basis of the judgment of Maharajan. J. , in Crl. R, G. No. 444 of 1972 : 1972 Mad LW Cri 196. That reference came in the administrative side before Kailasam, J. and the Hon'ble the Chief Justice. Kailasam. J felt some doubt about the views of Maharaian, J. , extracted above, and expressed himself as follows: The decision in Crl R. C. No. 444 of 1972 (Mad) requires reconsideration. The view expressed that the adult and the juvenile could be tried by the same Court, not jointly but separately, is not free from difficulty. If, in the earlier case, the Court finds the accused guilty, the subsequent trial of the juvenile OF the adult accused may cause an apprehension, that the Judge had taken a view on the earlier case and his view will be coloured in the subsequent case. The observation of the learned Judge in Paragraph 4 (of flag A) may not be in accordance with Section 38-B (1 ). An Assistant Sessions Judge tries cases on committal only. He may be a Court under the Children Act to hear an appeal, but the Court empowered to try is the Juvenile Court and, when that Court has jurisdiction under the Act, how can the Assistant Sessions Judge (be) empowered to try the case as summons case ? In view of there being a judicial decision of the High Court, it is better the matter is not disposed of on the administrative side, but placed before a Bench for orders. The Hon'ble the Chief Justice concurred. Accordingly that reference was posted before a Bench consisting of Maharajan. J. , and myself. Similarly. when Crl. M. P. No. 3957 of 1972 (relating to J. C. No. 264 of 1972) camp UP before Kailasam, J. , he directed it to be posted before a Bench. That was also posted before us (Maharaian, J. , and myself ).