ORDER
T.R. Handa, J.
1. Sh, Arjun Singh, hereinafter referred to as the accused', has been convicted for the offences falling Under Sections 363, 366 and 376, I.P.C by the Sessions Judge Kangra at Dharamsala vide his judgment dated 12-1-1982. Subsequently vide his order dated 21-1-1982 the learned Sessions Judge sentenced the accused to imprisonment till the rising of the Court and to pay a fine of Rs. 5,000/- for the said conviction. In terms of the directions of the Sessions Judge the amount of fine was to be paid to the victim of the rape through her father as compensation.
2. The accused has filed an appeal being Criminal Appeal No. 18 of 1982 to challenge his above conviction and sentence. The State has also preferred an appeal being Criminal Appeal No. 16 of 1982 against the above order of sentence recorded by the Sessions Judge seeking enhancement of the sentence imposed upon the accused This Court also took suo motu notice of the sentence imposed on the accused for the offences Under Sections 363, 366 and 376, I.P.C and feeling that the same was inadequate, issued notice to the accused in exercise of its revisional jurisdiction calling upon him to show cause why the sentence be not enhanced. The proceedings initiated at the instance of the Court had been separately registered as Criminal Revision No. 17 of 1982.
3. Since all these three matters, namely, Criminal Appeals Nos. 16 and 18 of 1982 and Criminal Revision No. 17 of 1982 arise out of the same judgment and order of the Sessions Judge, the same are being disposed of by this common order.
4. The accused was charged and tried for the offences Under Sections 363,366 and 376, I.P.C. on the allegations that he on 19-4-1980 in village Kohla had kidnapped Kumari Rita prosecutrix, a minor girl then aged about 11 years, without the consent of her lawful guardian, that he had done so with the intent to subject her to sexual intercourse and that thereafter he actually committed rape on her.
5. It is not considered necessary for the purposes of the present order to narrate the prosecution version leading to the trial and ultimate conviction of the accused It would suffice to state that the First Information Report about the occurrence was recorded with the police on 22-4-1980 and in the course of investigation the accused was arrested on 25-4-1980. He was later released on bail on 5-5-1980. After completion of the investigation the police filed the report Under Section 173, Cr.P.C in the Court of the Chief Judicial Magistrate, Dehra The learned Magistrate in his turn committed the accused to the Court of Session to face his trial The learned Sessions Judge after framing charges as above against the accused proceeded with the trial and at the conclusion thereof convicted and sentenced him as above.
6. Sh. S.S. Kanwar, the learned Counsel appearing for the accused, submits that the trial of the accused as also his conviction and sentence following such trial are vitiated being in complete violation of the mandatory provisions of the Himachal Pradesh Children Act, 1979 (Act No. 21 of 1979) hereinafter referred to as 'the Act'. According to the learned Counsel it was evident from the police report filed under & 173 Cr.P.C as also from the evidence adduced at the trial that the accused at the time of commission of the alleged offence was below 16 years in age. He was, therefore, a 'delinquent child' within the meaning of the Act He had, therefore, to be dealt with in accordance with the provisions of the Act and the learned Sessions Judge had no jurisdiction to try or convict and sentence the accused as he has done. In support of this contention the learned Counsel carried me through the various provisons of the Act having bearing on the submissions made by him.
7. On going through the relevant provisions of the Act, I find substance in the contention raised by the learned Counsel for the petitioner. Section 2(d) defines the expression 'child' as meaning a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. Clause (i) of the same section defines 'delinquent child' as a child who has been found to have committed an offence. Section 5 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Government may, by notification in the Official Gazette, constitute, for any area specified in the notification one or more Children's Courts for exercising the powers and discharging the duties conferred or imposed on such court in relation to delinquent children under this Act Section 7 then inter alia enjoins that where a Children's Court has been constituted for any area, such Court shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in the Act, have power to deal exclusively with all proceedings under this Act relating to delinquent children Sub-section (2) of & 7 then provides that where no Children' s Court has been constituted for any area, the powers conferred on the Children's Court by or under this Act shall be exercised in that area, only by the following namely, (a) the Chief Judicial Magistrate, or (b) any Judicial Magistrate of the First Class, The succeeding Section 8 inter alia enjoins that where it appears to a Magistrate not competent to act under the Act that a person brought before him otherwise than for giving evidence is a child, he shall record such opinion and forward the child and the record of proceedings to the competent authority having jurisdiction over the proceedings. The next relevant provision is found in Section 20 which requires that where a child having been charged with an offence appears or is produced before a Children's Court, the Children's Court shall hold the inquiry in accordance with the provisions of Section 41 and may, subject to the provisions of this Act, make such order in relation to the child as it deems fit The orders that can be passed by the Children's Court as a result of the inquiry conducted against the delinquent children are specified in Section 21. According to this provision the Children's Court can pass the following orders :-
(a) allow the child to go home after advice or admonition :
(b) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety as that Court may require, for the good behaviour and well being of the child for any period not exceeding three years.
(c) make an order directing the child to be sent to a special school,--
(i) in the case of a boy over fourteen years-of age or of a girl over sixteen years of age, for a period of not less than three years.
(ii) in the case of any other child, for the period until he ceases to be a child
Section 23(1) next requires that notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent child shall be sentenced to death or imprisonment, or committed to prison in default of payment of fine or in default of furnishing security. In terms of proviso to this subsection where the Children's Court is satisfied that the offence committed is of so serious a nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other children in a special school to send him to such special school and that none of the other measures provided under this Act is suitable or sufficient, the Children's Court may order the delinquent child to be kept in safe custody in such place and manner as it thinks fit and shall report the case for the orders of the Government
8. In terms of Section 29(1) a Children's Court shall hold its sittings at such place, on such day and in such manner, as may be prescribed Sub-section (2) of the same section provides that where no such separate Court has been established the Court before which a child is brought, shall whenever practicable, sit either in a different building or room from that in which the ordinary sittings of the Courts are held or on different days or at different times from those at which the ordinary sittings are held The next important provision is found in Section 34 Sub-section (1) of this section enjoins that where it appears to a competent authority (which includes the Children's Court) that person brought before it under any of the provisions of the Act (otherwise than for the purpose of giving evidence) is a child the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a child or not stating his age as nearly as may be. Sub-section (1) of Section 39 confers right of appeal on any person aggrieved by the order of a children's court and the appeal lies to the court of Session No appeal, however, lies from an order of acquittal recorded by the children's court in respect of a delinquent child.
9. It would clearly transpire from a reading of the various provisions of the Act referred to above that in the case of a delinquent child that is, a child under 16 years of age involved in an offence, a special procedure has been prescribed to deal with him. He is not to be tried under the ordinary law as found in the Code of Criminal Procedure but dealt with under the relevant provisions of the Act These provisions contemplate no trial but only an inquiry which is conducted according to the procedure that may be prescribed and subject thereto the procedure laid down in the Code of Criminal Procedure for trials of summons cases is to be followed The procedure adopted for the trial of warrant cases or of sessions cases is clearly ruled out in dealing with a delinquent child No other Court except the Children's Court or the Court of the Chief Judicial Magistrate or the court of the Judicial Magistrate 1st Class is empowered to deal with or hold inquiry against a delinquent child Where a delinquent child is produced before a court not competent to hold an inquiry against him it is the duty of such court to forward the delinquent child to the court of competent jurisdiction
10. In the instant case, there was sufficient material both before the committing court as well as the trial court which reflected that the accused was a 'delinquent child within the meaning of the Act The documents attached, with the police report filed Under Section 173, Cr.P.C. and which were considered for the purposes of framing of charge described the age of the accused at 16 years. A reference in this connection may be made to the Medical Certificate of the accused dated 22-4-1980 which is found at Ex. P.G. as also the identification slip prepared by the Investigating Officer and which was attached with the police report Apart from that I have reason to assume that from his appearance also the accused must have looked like a child of about 16 years of age. This was sufficient to put the committing Court as well as the trial court on its guard and prompt them to hold an inquiry with respect to the age of the accused In fact the learned Sessions Judge in his impugned judgment has himself found that the date of birth of the accused is 10-5-1964 which means that at the time of commission of the alleged offence he was below 16 years of age. In these circumstances no further inquiry into the age of the accused is required to be conducted and it can be safely concluded from the material on record that he was below 16 years of age at the time of commission of the offence. The accused thus being a delinquent child, could be only dealt with in accordance with the provisions of the Act which as already observed contemplate only an inquiry by the Children's Court or in the absence of the Children's Court by the Chief Judicial Magistrate or a Judicial Magistrate of the First Class and he could not be tried under the provisions of the Code of Criminal Procedure. His commitment to the Court of Session for trial as also his trial by that Court are vitiated in law. The conviction and sentence recorded against the accused following such trial are equally vitiated The same, therefore, need to be quashed and are hereby quashed
11. The question that next arises is how to deal with the accused at this stage Ordinarily in a matter of this type the proper course should be to remand the case to the court of competent jurisdiction to hold an inquiry against the accused and to deal with him in accordance with the provisions of the Act In the instant case, however, keeping in view the fact that the occurrence pertains to the year 1980, the accused has since crossed the age of 20 and also the nature of the orders that can be passed by the Children's Court as a result of the inquiry' as provided in Section 21(1), I am of the view that no useful purpose will be served in remanding the case to the Children's Court and it would be expedient to drop the matter. I would accordingly without remanding the case to the Children's Court direct that the proceedings against the accused be dropped
12. At this stage Kanwar Shamsher Singh the learned Counsel for the accused states that trie father of the accused has already deposited Rs. 5,000/- for payment as compensation to the prosecutrix through her father which amount is still lying in deposit with the Court He states that for reasons of their own the accused and his father are not interested in withdrawing that amount and they would like that the same be paid to the prosecutrix through her father as per directions of the Sessions Judge. In view of this voluntary offer : made on behalf of the accused I direct that the amount of Rs. 5,000/- deposited by the accused in the Court of the Sessions Judge for payment to the prosecutrix be paid to the latter through her father.