Sadasivayya, J.
(1) This Criminal Revision Case arises out of a reference made by the Sessions Judge of Bijapur under Section 438 of the Criminal Procedure Code. The facts and circumstances which have led to this reference, are as follows:
The First Class Magistrate of Jamkhandi by his order dated 4-12-1958 made in Juvenile (Crl.) Case No. 1/58 on the file of his Court committed the present respondent, who is a juvenile offender for taking his trial before the Court of Session, Bijapur, for offences under Sections 454 and 395 of the Indian penal Code and also for voluntarily causing hurt to the complainant, one Bhagavva, while committing the said other offences. The learned Sessions Judge, taking, the view that by virtue of Section 13 of the Bombay Children Act, 1948, the Magistrate himself should have proceeded with the trial of the juve ile offender, has made the present reference and has prayed that the order of commitment be quashed under Section 215 of the Code of Criminal Procedure.
(2) Though the respondent has been served with notice, nobody has appeared on his behalf, in this Court. Sri Shankar Chetty, the learned Additional Assistant Advocate-General, has appeared for the State. Sri Shankar Chetty ahs argued that the reference which has been made by the learned Sessions Judge is incompetent and should be rejected. In support of his contentions, the learned Assistant Advocate-General has relied on Ss.24, 13 and 8 of the Bombay Children Act 1948. After a consideration of the contentions advanced by him, we are of the opinion that the reference made by the learned Sessions Judge is liable to be rejected.
(3) Section 24 of the Bombay Children Act 1948, provides that except as expressly provided under the said Act or the Rules made thereunder, 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 and to commit the offender for trial before the Court of Session, in a case where the offence was traible only by the Court of Session.
It is pointed out by him that the Bombay Children Act, 1948, does not anywhere state that 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 S. 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 trail before the Court of Session. Therefore, it seems to us that the learned Sessions Judge was in error in taking the view 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 cannot be any inconsistency with the provisions of the said Act in the Court of Session trying a juvenile offender for such of the offences in respect of which it would be ordinarily competent to try under the provisions of the Code of Criminal Procedure. No separate procedure for inquiry for the purpose of committal for trial inquiry for the purpose of committal for tribal before the Court of Session being prescribed by the Bombay Children Act, 1948, and the Magistrate not being expressly empowered under that Act to try 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 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.
(4) For the reasons above stated we find that the reference made by the learned Sessions Judge is incompetent and is liable to be rejected. The reference is accordingly rejected and the learned Sessions Judge is directed to proceed expeditiously with the trial of the case.
(5) Reference rejected.