B.C. Varma, J.
1. Appellant Khalilullah is alleged to have committed the murder of one Rashidullah on 18-9-1980. After due investigation, the police filed the challan before the Magistrate for an action Under Section 209, Cri.P.C for commitment of the case to court of Session the offence being triable exclusively by Court of Session. The learned Magistrate by order dt. 28-1-1981 committed the case to the Court of Session and forwarded the papers accordingly to that Court. The Sessions Judge, however, took up the matter only on 17-2-1981 and proceeded to try the appellant. Meanwhile, the Madhya Pradesh Bal Adhiniyam, 1970 (Act No. 15 of 1970) was made applicable to Raisen district with effect from 15-2-1981, vide notification No. D. 739-6835-XXVI-81, dt. 5th Feb. 1981, and in exercise of powers Under Section 4 of that Act, a Juvenile Court was constituted for Raisen district. After trial, the learned Sessions Judge found the appellant guilty and by judgment dt 24-6-1981 convicted him Under Section 302, Penal Code, and awarded a sentence of rigorous imprisonment for life.
2. Without addressing on the merits of the case, Shri A. Usmani, learned Counsel for the appellant, made an application before this Court and also filed certain documents contending that the appellant was born on 4- 1-1967 and, therefore, on the date of the commission of the crime, was less than sixteen years of age and was thus a 'child' within the meaning of Section 2(c) of the Bal Adhiniyam, reading as follows:
(c) 'child' means a boy or a girl who has not attained the age of sixteen years.
It was, therefore, submitted that since the Bal Adhiniyam was made applicable to Raisen district, not the Sessions Court but the Juvenile Court had jurisdiction and, therefore, the entire trial is vitiated.
3. The contention that the appellant was below sixteen years of age and, therefore, a 'child' within the meaning of the Bal Adhiniyam was not raised before the Lower Court. In case, however, the appellant was in fact a 'child' on the date of commission of the crime, he should not be deprived of the beneficial provisions of the Adhiniyam merely because the question of the appellant's age was not agitated before the lower Court. Justice should not be allowed to be defeated at the hands of mere technicalities. In fact, as pointed out by the Supreme Court, in Gopinath Ghosh v. State of W.B. : 1984CriLJ168 whenever the matter is brought before a Magistrate and the accused appears to be of tender age, an inquiry before proceeding with the trial must be made about the age of the accused on the date of the occurrence. This should be more so when the special Acts dealing with juvenile delinquent are in force. The accused must be given an opportunity to lead evidence about his age and an expert medical evidence of age of the accused be obtained. The Supreme Court even appreciated the propriety of issuing instructions to the trial Courts in that behalf. Needless to say that in view of the observations made by the Supreme Court in Gopinath's case (supra), and in view of the fact that the social progressive statute, namely, the Bal Adhiniyam, being in force in the region where the occurrence in question took place, we overrule the objection that as the question of appellant's age was not agitated before the lower Court, the same be not permitted to be raised in this Court for the first time.
4. The appellant has filed on record documents to prove his date of birth. The primary school certificate, the marks-sheet and his progress report all show his date of birth 4-1-1967. While releasing the appellant on bail by order dt. 16-10-1980, the learned Sessions Judge also noticed that the appellant was a minor. These documents clearly show that the appellant was below sixteen years of age on the date when the occurrence took place. This position was not seriously disputed by the counsel for the respondent/state. We, accordingly, hold that the appellant was born on 4-1-1967 and was less than sixteen years of age on 18-9-1980 when the offence was committed and was thus a 'child'.
5. A Division Bench of this Court in Rupsingh v. State of M.P. 1974 MPLJ 341 : 1975 Cri LJ 500 took a view with reference to the Cr.P.C. 1898, that the Juvenile Courts constituted under the Bal Adhiniyam had exclusive jurisdiction to try the juveniles for all offences including those punishable with life imprisonment or death and that view was further affirmed by a Full Bench in State of M.P. v. Ramesh Nai 1975 MPLJ 1 : 1975 Cri LJ 713. The question was however re-agitated after the coming into force of the Cr.P.C., 1973 (Act No. 2 of 1974) and a controversy was raised whether in view of that Code, the Juvenile Court alone will have exclusive jurisdiction in respect of a juvenile to try a 'child' for all offences including those punishable with life imprisonment or death. A Full Bench of this Court (J. S. Verma, J. dissenting) held in Devisingh v. State of M.P. 1978 MPLJ 238 : 1978 Cri LJ 585 that for offence punishable with death or imprisonment for life, the Court of Session under the provisions of Cr. P.C, 1973 shall have exclusive jurisdiction to try a 'child' and Juvenile Court's jurisdiction in that behalf was excluded. The controversy however was set at rest by the Supreme Court in Raghbir v. State of Haryana 1981 Cr LJ 1497 which approved the minority view of J. S. Verma, J. in Devisingh's case (supra), and held that where special Acts like Bal Adhiniyam, have been made applicable regarding the juveniles, and Juvenile Courts have been established, it is the Juvenile Courts alone which shall have jurisdiction to try the juvenile even in respect of offence punishable with death or imprisonment for life. Further it may be noticed that Sub-section (1) of Section 22 of the Bal Adhiniyam which begins with a non obstante clause,.takes away the jurisdiction of a Court to impose on a delinquent 'child' a sentence of death or imprisonment or committing to imprisonment in default of payment of fine or furnishing security. The proviso annexed to Sub-section (1) of Section 22 of the Adhiniyam, however, permits the delinquent' 'child' to be kept in safe custody in such place and manner as the Court may think fit in case the conditions mentioned in the proviso are satisfied. In such event, the Court is under an obligation to report the cases for orders of the State Govt. In view of the aforesaid state of law, the appellant could not have been tried by the Sessions Judge for the offence charged, namely, of murder, and could not have been sentenced to life imprisonment, in case the Bal Adhiniyam were in force and consequently a Juvenile Court established for that area where the offence was committed. In that event, the entire trial would have stood vitiated.
6. The position which obtains in the present case however is that the Bal Adhiniyam had not been made applicable to Raisen District on the date of occurrence, i.e., 18-9-80. It was not even in force when the matter was placed before the Magistrate for action Under Section 209, Cr.P.C. Even on 28-1-1981 when the Magistrate committed the case to the Court of Session and forwarded the papers accordingly, the Adhiniyam was not in force. It came into effect in that area from 15-2-1981 and the learned Sessions Judge first took up the matter on 17-2-81. Such a situation is covered by Section 26 of the Adhiniyam, which too starts with a non obstante clause and reads asunder :-
26. Special provision in respect of pending cases. -- Notwithstanding anything contained in this Act, all proceedings in respect of a child pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the child has committed an offence it shall record such finding and, instead of passing any sentence in respect of the child forward the child to the Juvenile Court which shall pass orders in respect of the child in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that the child has committed the offence.
Section 26 of the Bal Adhiniyam makes provisions for the pending cases. It takes into account a situation where proceedings in respect of a 'child' are pending in any Court on the date the Adhiniyam is enforced in a particular area. In that event, the requirement is that in spite of various provisions in the Adhiniyam, the Court shall continue the proceedings, complete the trial and if its finding is that the 'child' has committed an offence, shall not proceed to pass any sentence against that 'child' which would have otherwise done had the Adhiniyam been not applied. The direction is that the Court shall, in spite of passing sentence itself, forward the 'child' to the Juvenile Court. The Juvenile Court then on the basis of the finding so received by it, shall pass orders in respect of the 'child' in accordance with the provisions of the Adhiniyam. But for this deviation in the matter of passing final orders in case the 'child' is found to have committed an offence, the Court where the proceedings are pending is entitled to continue those proceedings. It necessarily follows that if the Court where the proceedings are pending in respect of the 'child' when the Act is enforced finds the 'child' not guilty, he will proceed to pass final judgment acquitting the 'child'.
7. The question then is when and where the proceedings initiated Under Section 209, Cr.P.C. before a Magistrate can be said to be pending Section 209, Cr.P.C. runs as follows :
209. Commitment of case to Court of Session when offence is triable exclusively by it -- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall --
(a) commit the case to the Court of Session
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial ;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence ;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
The provisions contained in Section 209, Cr.P.C. 1973 (Act No. 2 of 1974) are radically different from the commitment proceedings under the 1898 Code and the process thereunder may be called, as indicated by the heading, 'commitment of the case to the Court of Session'. Now the Magistrate has to perform only certain preliminary functions like granting copies, preparing the records etc. and formally to commit the case to the Court of Session. As pointed out in Sanjay Gandhi v. Union of India (UOI) : 1978CriLJ642 it is not open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. He is merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Session, and if it is so, has simply to commit for trial before the Court of Session. As soon as the Magistrate commits the case to the Court of Session, his function Under Section 209, Cr.P.C., is over and he ceases to have any jurisdiction over that matter. When the case is so committed to Court of Session, it shall take cognizance Under Section 193, Cr.P.C., as a Court of original Jurisdiction and the trial commences. The proceedings in that event against an accused are before the Court of Session. The combined effect of Sections 209 and 193, Cr.P.C. therefore, is that in case of person accused of an offence exclusively triable by the Court of Session, the proceedings are initiated by institution of a police report or otherwise before the Magistrate and on commitment of the case to the Court of Session continue before the Court of Session. They can then be terminated only in accordance with the provisions contained in Chap. 18 of the Cr.P.C. Thus, it is clear that on the commitment of the proceedings in the present case by an order of the Magistrate, dt. 28-1-1981, the proceedings lay pending before Court of Session on 15-2-1981 when the Bal Adhiniyam was applied in Raisen area although the Court of Session actually took up the matter for further action in accordance with Chap. 18, Cr.P.C, only on 17-2-1981. That being so, the Sessions Judge instead of passing the final order in the matter should have taken action Under Section 26 of the Adhiniyam. He should have recorded the finding and then forwarded the case with his findings to the Juvenile Court for passing final order in accordance with the provisions contained in the Bal Adhiniyam.
8. Shri A. Usmani, learned Counsel for the appellant, argued-that a Magistrate acting Under Section 209 of the Cr.P.C. for commitment of a case to Court of Session is not a 'Court' within the meaning of Section 20 of the Penal Code which says that a 'Court of Justice' is to denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.' Reference was also made to Section 19 of the Penal Code which defines 'Judge' to denote not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.' Special reference was made to Illustration (d) of Section 19 of the Penal Code saying that 'a Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a Judge.' The argument is that since the Bal Adhiniyam does not define the term 'Court' which term is also not defined in the Cr.P.C. the definition given in Section 20 of the Penal Code should be adopted in view of Section 2(y) of the Cr.P.C. saying that words and expressions used therein and not defined but defined in the Penal Code have the meanings respectively assigned to them in that Code. Reliance was placed on Ramchandra v. King Emperor AIR 1926 Pat 214 : 1926-27 Cri LJ 499 and Brajnandan Sinha v. Jyoti Narain : 1956CriLJ156 . No doubt the Bal Adhinivam does not define the term 'Court' and, therefore, resort can be had to Sections 19 and 20 of the Penal Code which indicate that the pronouncement of a definitive judgment is considered the essential sine qua non of a Court. This is what exactly the Supreme Court said in Brajnandan Sinha's case (supra). It was held that unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court. The Court observed that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement. On a consideration of these tests with special reference to the provisions of the Public Servants (Inquiries) Act (37 of 1850), it was held that the Commissioner appointed under that Act was not a Court as his reports or findings were not a definitive judgment or a judicial pronouncement inasmuch as they were not binding and authoritative and lacked finality. In view of this decision and in view of Section 19, llustration d) and Section 20 of the Penal Code, it may be possible to hold that a Magistrate acting Under Section 209, Cr.P.C. is not a Court as his only function is to commit the case to the Court of Session after observing certain formalities as held in Sanjay Gandhi's case : 1978CriLJ642 (supra), and it will not matter even if he may have power under the circumstances to enlarge the accused on bail. This question, however, loses all importance in the present case for the reason that on 15-2-1981 when the Bal Adhiniyam was made applicable to Raisen district where the offence was committed, the matter was pending before the Sessions Judge and not before the Magistrate who committed the case to the Court of Session on 28-1-1981. This argument, therefore, even if accepted, is of no avail to the appellant since in our judgment the proceedings were not pending before the Magistrate on 15-2-1981 but were pending before the Sessions Judge which undoubtedly is a 'Court.'
9. On the findings reached by us above, the learned Sessions Judge ought not to have passed the final order imposing sentence of life imprisonment on the appellant after finding him guilty. This appeal, therefore, succeeds and is allowed. The sentence of life imprisonment passed against the appellant is hereby set aside and the case is sent back to the learned Sessions Judge, who shall in accordance with Section 26 of the Bal Adhiniyam, forward the appellant to the Juvenile Court with the findings reached by him for the purpose of passing final order by the Juvenile Court in accordance with the provisions of the Bal Adhiniyam. When the matter so reaches the Juvenile Court, it shall proceed to pass orders in accordance with the Bal Adhiniyam as if it has been satisfied on inquiry under the Adhiniyam that the appellant has committed the offence.