P L D 1974 Karachi 459 (PLP)

4. Against this order the applicant preferred an appeal under section 51 of the Bombay Children Act to the District Magistrate, Karachi. The learned District Magistrate came to the conclusion that the guilt of the appellant had been proved beyond reasonable doubt. He, therefore, rejected the appeal and upheld the reference to the Provincial Government for orders as to his punishment. The Provincial Government, however, preferred a revision application before the Court of Session, against the order of the Juvenile Court, for making a reference to the High Court, for setting aside the said order and for committing the accused/respondent to the Court of Session, on the ground that the offence under section 302, P. P. C. was exclusively triable by the Court of Session and the trial of the accused before the Juvenile Court was without jurisdiction. That the Sessions Court alone was competent to pass orders under the provisions of Bombay Children Act in respect of this offence under section 302, P. P. C.

5. Before discussing the merits of the case, it would be necessary to examine the legal aspect of this matter. For the Presidency of Bombay, the Bombay Children Act, 1924, was promulgated and its operation was extended to Province of Sind by a notification of the Home Department dated 24th February 1936. Sind was separated from Bombay Presidency in the year 1937, but these Bombay Acts continued to apply to this Province, The Bombay Children Act, 1924 was only an attempt to introduce the subject of Juvenile delinquency by laying stress on the reformation and rehabilitation of neglected children and modifying the procedure to be adopted at the trial of such offenders. But the Bombay Children Act, 1924, did not confer jurisdiction on the Juvenile Court, to the exclusion of all other Courts, as held in Muhammad Zamin v. The State (1970 P Cr. L J 397). On the contrary the powers under the Act could be exercised under section 5, by the High Court, the Court of Session, District Magistrate, Sub‑Divisional Magistrate, a Presidency Magistrate, Juvenile Court or any other Magistrate of the First Class. For trial of children's cases, different laws were enacted for different Provinces and each such enactment differed in respect of the jurisdiction and procedure of Juvenile Courts. The lacuna in Bombay Children Act, 1924, was discovered in that Province after Independence and this outmoded Act was repealed and then re‑enacted as the Bombay Children Act, 1948. Suitable amendments were made, providing exclusive powers of trial of Juvenile offenders by the Children's Courts. In the Province of Sind also the,, Sind Children Act (Act XII of 1955) was enacted on July 11, 1955, but this Act was to come into force from the date of issue of such notification in the official Gazette. On October 3, 1955 Sind was merged in the Province of West Pakistan and no such notification was in fact issued. The result is that Bombay Children Act, 1924, continues to be applied although it has outlived its purpose and can no longer be considered as adequate for meet ing the requirements and conforming to the latest theories and methods including psychotherapy for preventing Juvenile delinquency and for effec tively treating the child offenders so that they should be rehabilitated and reformed as useful members of society instead of being discarded and humiliated as potential criminals, by simple detention in juvenile prisons or remand homes.

6. We have, therefore, to examine the law applicable in this place and see, whether under it offences committed by youthful offenders punish able with death or transportation for life and exclusively triable by Court of Session, can be tried by the Juvenile Court presided over by an ordinary First Class Magistrate and whether the final orders could be passed by such Court, instead of committing the accused for trial before the Court of Session as provided under the Criminal Procedure Code.

7. The extent of the application of the Code of Criminal Procedure is described under section 1(2) of the Criminal Procedure Code: "It extends to the whole of Pakistan but in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power coj)ferred, or any special sort of procedure prescribed by any other law for the time being in force". Therefore, when a\special procedure has been laid down in any other special law or enactment conferring jurisdiction, then nothing in the Criminal Procedure Code shall affect such special jurisdiction, for generalia specialibus non derogant i.e. a general law does not abrogate the special law.

8. Under section 6 of the Cr. P. C. criminal Courts constituted under any special law, apart from the five classes of criminal Courts described under the Code, are also recognized. Section 29‑B, Cr. P. C. extends to certain Magistrates the power to try Juvenile offenders for certain offences which would otherwise have been triable exclusively by the Court of Session. Thus the section empowers the Magistrates referred therein to try any offence other than one punishable with death or imprisonment for life although such offence apart from this section would be beyond their competence to try. This section reads as under: "Any offence other than one punishable with death or transportation for life, committed by any person who at the date when he appears or is brought before the Court is under the age of 15 years, may be tried by a District Magistrate, or by any Magistrate specially empowered by the Provincial Government to exercise the powers conferred by section 8, subsection (1) of the Reformatory Schools Act, 1897; or, in any area in which the said Act has been wholly or in part repealed by any other law providing for the custody, trial or punishment of youthful offenders, by any Magistrate empowered by or under such law to exercise all or any of the powers conferred thereby." Therefore, reading these three sections namely section 1(2), section 6 and section 29‑B, Cr. P. C. together, the Cr. P. C. does not prohibit trial of juvenile offenders even for offence punishable with death or imprisonment for life, by Juvenile Courts where any special law confers such jurisdiction to hold these trials on such Courts. But where there is no provision express or implied to dispense with the necessity of committing such accused to the Court of Session, such cases have to be committed for trial, and the Court of Session may try the juvenile offenders also, keeping in view the provisions of the Bombay Children Act, 1924. For under section 5 of the Act the powers conferred on Courts by that Act could be exercised by the High Court and the Court of Session also.

9. As already discussed above, exclusive jurisdiction to try the juvenile offenders for all offences including those punishable with death or transporta tion for life has not been conferred by the Old Bombay Children Act on the Juvenile Courts, and in the absence of any express provision conferring jurisdiction, contrary to the provisions of Criminal Procedure Code, the general law would apply and such cases would have to be committed for trial before the Court of Session.

10. To elucidate this point it would not be out of place to refer to the decisions of the High Courts in India, on this point. In A I R 1932 Cal. 487, it was observed as under:‑ "As regards the first point, section 29‑B, Criminal P. C., which came into force on 1st September 1923, seems to me to afford a sufficient answer. Section 29‑B says that any offence other than one punishable with death or transportation for life committed by any person who at the date when he appears or is brought before the Court is under the age of 15 years may be tried by a District Magistrate or a Chief Presidency Magistrate or by any Magistrate specially empowered by the Local Government to exercise the powers conferred by section 8, subsection (1), Reformatory Schools Act, 1897, or in any area in which the said Act has been wholly or in part repealed by any other law providing for the custody, trial or punishment of youthful offenders by any of the powers conferred thereby. This section authorizes the Magistrate in charge of the Central Children Court to try all offences other than an offence punishable with death or transportation for life, and it therefore, in my opinion, clearly lays down by implication that an offence under section 304, I. P. C. which is punishable with transportation for life and which is exclusively triable by the Court of Session, is not to be tried by the Magistrate in charge of the Central Children Court. The answer to the first point referred to us must therefore be in the negative."

9. In A I R 1960 Mys. 71, the Sessions Judge of Beejapur made a reference to the High Court that the First Class Magistrate, Jam Khandi had committed a juvenile offender for trial before the Sessions Court instead of proceeding with the trial. Under section 8 of the Bombay Children Act, 1948 juvenile Court had been given the exclusive jurisdiction for such trials. The High Court rejected the reference and directed the Sessions Judge to proceed with the trial on the ground that the Court of Session could act as a Juvenile Court and try the offender under the provisions of Bombay Children Act instead of the Magistrate First Class who was not competent to try such cases under the Code of Criminal Procedure. The observations of the learned Judge would be relevant to this case and they are as under:‑ "(3) Section 24 of the Bombay Children Act, 1948, provides that except as expressly provided under the said Act or the Rules made there under, the procedure to be followed in the trial of cases and the conduct of proceedings under the said Act should be in accordance with the provisions of the Code of Criminal Procedure, 1898. It has been contended, with considerable force, by Sri Shankar Chetty that unless there is express provision made to the contrary, in the Bombay Children Act, the Magistrate acting under the provisions of the Code of Criminal Procedure had to commit the offender for trial before the Court of Session, in a case where the offence was triable only by the Court of Session. It is pointed out by him that the Bombay Children Act, 1948, does not anywhere state chat a Magistrate exercising the powers of a juvenile Court would be competent to try cases, which under the Code of Criminal Procedure are triable only by a Court of Session; that being so, it is contended by him, that the Magistrate was right in the present case in having committed the juvenile offender to take his trial before the Court of Session for the offence under section 395 of the Indian Penal Code. The view of the learned Sessions Judge that by virtue of section 13 of the Bombay Children Act, 1948, the Magistrate alone should have proceeded with the trial of the juvenile offender, does not appear to be a correct one. Because, as pointed out by Sri Shankar Chetty, section 13 applies only where there is the trial of a case. In the present case, there could be no trial before the Magistrate because it includes an offence which could be properly tried only by the Court of Session. The provisions of section 13 would not be applicable when there is no trial of a case, but merely an inquiry for the purpose of making an order of commitment for trial before the Court of Session. Therefore, it seems to us that the learned Sessions Judge was in error in taking the view that the Magistrate himself should have proceeded with the trial of the juvenile offender. Under section 8 of the Bombay Children Act, 1948, the Court of Session also is competent to exercise the powers conferred by the Act upon a juvenile Court. When the Court of Session also can exercise the powers conferred upon a juvenile Court, there can not be any inconsistency with the provisions of the said Act in the Court ef Session trying a juvenile offender for such of the offences in respect of which it would be ordinarily com petent to try under the provisions of the Code of Criminal Procedure. No separate procedure for inquiry for the purpose of committal for trial before the Court of Session being prescribed by the Bombay Children Act, 1948, and the Magistrate not being expressly empowered under that Act to by cases which ordinarily the Court of Session alone would be competent to try, it appears to us that the learned Magistrate was right in the present case in having committed the Juvenile offender to take his trial before the Court of Session. As already stated above, section 13 would not be applicable and there appear to be no good grounds to interfere with the order of the committal made by the learned Magistrate."

10. Another case under the new Bombay Children Act, 1948 on the point is reported in A I R 1957 Born.

13. In that case, a juvenile offender alongwith a grown‑up co‑accused was committed to the Court of Session for trial for offence under section 302, Penal Code. It was argued that under section 9 of the Bombay Children Act, 1948, a Juvenile Court was the only Court competent to try cases in which a child was charged with commission of an offence and no other Court had jurisdiction to try the child. The order of committal passed against the child was quashed and he was referred to the Juvenile Court for holding the trial. The cases of the child and the grown up accused were thus bifurcated.

11. In A I R 1960 Mad. 308, it has been held that it was competent for the State Legislature to enact the provisions of Madras Children Act (Act IV of 1920) and that having regard to the juxtaposition of section 1(2), Cr. P. C. Section 6, Cr. P. C. and section 29‑B, Cr. P. C. powers of a Juvenile Court established by law to try a juvenile offender even for an offence punishable with death or imprisonment for life, were not taken away by implication.

12. These decisions have thus clearly laid down the same law, that where it is expressly provided for trial of these offences punishable with death or transportation in case of juvenile offenders by the Juvenile Courts then such trials could be held by the Juvenile Courts, even contrary to the procedure as laid down in the Criminal Procedure Code for trial of such offences. But in the absence of special jurisdiction conferred by any special law on any such special Court, the ordinary procedure for the trial of such offences would continue to be applicable. Since the old Bombay Children Act of 1924 did not confer exclusive jurisdiction for trial of the juvenile offenders on the Juvenile Courts such trials could not proceed before the Juvenile Court presided over by a First Class Magistrate having powers of a Juvenile Court. The trial of applicant Anjum for an offence under section 302, P. P. C. by the Juvenile Court was thus illegal and contrary to the procedure laid down for such trials. It might also be pointed out that judicial finding in respect of applicant being a child or youthful offender within the meaning of section 3(a) and (c) of the Bombay Children Act, 1924, has not been given in spite of the vague opinion of the Medial Officer showing the age of Anjum to be 2 months below 16 years or two months above 17 years. No attempt appears to have been made to obtain the date of birth of Anjum from Municipal or School records.

13. The result is that the order of the Juvenile Court dated 5th May 1971, finding the applicant to be guilty of offence under section 302, P. P. C. and referring his case to the Provincial Government under section 26 of the Bombay Children Act being without jurisdiction is hereby set aside. The appellate order of the District Magistrate, Karachi, dated 2‑6‑1971 is also set aside. The record and proceedings of case be forwarded to the City and Additional District Magistrate, Karachi, with direction that the committal proceedings already started by the Additional City Magistrate before transfer of the case to the Juvenile Court may now be completed expeditiously by proceeding with the case from day to day. The applicant who is on bail is directed to appear before the City and A. D. M., Karachi, in this case on 18th May 1974 and furnish fresh bail bonds in that Court. Both the Revision Applications are disposed of accordingly. S. A. H. Orders accordingly.