2010 ALL MR (Cri) 3065
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)

N.A. BRITTO, J.

Shri. Videsh Karmalkar S/O. Vaman Karmalkar Vs. State (Through Pp)

Criminal Writ Petition No.35 of 2010

5th July, 2010

Petitioner Counsel: Mr. ARUN BRAS DE SA
Respondent Counsel: Mr. C. A. FERREIRA

Goa Children's Act (2003), S.34 - Powers of Children's Court - Four murders including 2 of children and 2 of adults - In absence of any other provision in Goa Children's Act, held, Children's Court having the powers of the Sessions Court could try all the accused in respect of the murders including the murders of the adults - Separate trials do not appear to be logically sound and will result in confusion both to the prosecution and the accused and cause unnecessary harassment to the accused. Criminal P.C. (1973), S.223. Penal Code (1860), S.302.

In the absence of any other provision in the Goa Children's Act, 2003, the Children's Court having the powers of the Sessions Court could try all the accused in respect of the murders including the murders of the adults. Separate trials do not appear to be logically sound and will result in confusion both to the prosecution and the accused and cause unnecessary harassment to the accused. Therefore, in view of the concession made, there won't be any issue of jurisdictional error in case all the accused are tried by the Children's Court, not only in respect of two victims who are children, but in respect of two victims who are majors and deal with them in accordance with law. There is also no provision in the Goa Children's Act, 2003 to debar a trial of accused, who have committed offences against children and against adults in the course of the same transaction. [Para 10,11,12]

JUDGMENT

JUDGMENT :- Heard.

2. In this Writ Petition, the accused no.3 in Sessions Case No.2/2010 has challenged the order dated 9/03/2010 of the learned Additional Sessions Judge, Panaji.

3. For 4 murders, 5 accused were committed to the Court of Sessions by order dated 22/01/2010 of the learned JMFC, Panaji. Out of the 4 victims - murdered persons, 2 are majors and 2 are minors i.e of 8 and 3 years of age and therefore 'children' within the meaning of the Goa Children's Act, 2003. There is no dispute that when it comes to offences against children they are required to be tried by the Children's Court. Since 2 of the victims - murdered persons are children, the learned Additional Sessions Judge has given a direction by the impugned order that the charge sheet be split, and the accused who have committed offences against the said two children be tried by the Children's Court and the offences against the other 2 victims - majors could be tried by the learned Additional Sessions Judge.

4. Shri. Arun Bras De Sa, the learned Counsel appearing on behalf of the petitioner (A-3 in the said Sessions case) and Shri. Ferreira, the learned Public Prosecutor has not been able to support the impugned order of the learned Additional Sessions Judge and according to both, the entire case ought to be tried by the Children's Court constituted under Section 30 of the Children's Act, 2003, as the offences have taken place in the course of the same transaction and the accused cannot be tried for two murders before the Children's Court and for the other two before the Additional Sessions Judge.

5. Section 28 of the Goa Children's Act, 2003 deals with composition of the Children's Court, Section 30 deals with Jurisdiction of the Children's Court, Section 31 deals with the powers of the Children's Court and Section 32 deals with the procedure to be adopted by the Children's Court.

6. Section 30 which deals with the jurisdiction of the Children's Court provides that subject to the provisions of this Act, the Children's Court shall have jurisdiction to try all offences against children whether such offence is specified under this Act or not. It further provides that the powers of the Competent Authority and the Special Officers under this Act shall not fall within the jurisdiction of the Children's Court. Section 31 of the Goa Children's Act, 2003 deals with the powers of the Children's Court and sub section (1) provides that the Children's Court shall have all the powers of -

(a) the Court of Sessions under the Code of Criminal Procedure, 1973 (2 of 1974);

(b) a Civil Court for the purpose of summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, and administering oath and recording evidence.

Sub-section (2) of Section 31 of the Goa Children's Act, 2003 also provides that every proceeding of the Children's Court shall be deemed to be a judicial proceeding within the meaning of Sections 195 and 228 of the Indian Penal Code, 1860 (45 of 1860).

(emphasis supplied)

7. Shri. Bras De Sa, the learned Counsel appearing on behalf of the petitioner submits that the Children's Court has also powers of the Court of Sessions and therefore all the accused could be tried at the same trial by the Children's Court irrespective of the fact that the two of the murdered persons are not children, a submission which has been accepted by the learned Public Prosecutor.

8. The case does raise a dilema, which the legislature could not have even thought of. Section 223 of the Code of Criminal Procedure, 1973, inter alia, provides that persons accused of the same offence committed in the course of the same transaction may be tried together. Obviously, all the accused are alleged to have committed the 4 murders including 2 of children and 2 of adults and therefore will be required to be tried together. Section 34 of the Goa Children's Act, 2003, further provides that no other Court civil or criminal shall have jurisdiction to decide or deal with any offence or any question or any dispute or any liability which by or under this Act is to be decided by the Children's Court except by appeal to the High Court or Supreme Court.

9. Section 35 of the same Act further provides that the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other [State law] for the time being in force or any custom or usage or any instrument having effect by virtue of any such law.

10. The finding that all the 4 accused ought to be tried for 2 murders of children by the Children's Court and for 2 murders of adults by the Additional Sessions Judge, murders which have taken place in the course of the same transaction, does not appear to be logically sound and legally correct. The learned Additional Sessions Judge, in view of Section 34 of the Goa Children's Act, 2003 will have no jurisdiction to try the accused in relation to the two children who have been murdered. In my view, in the absence of any other provision in the Goa Children's Act, 2003, the Children's Court having the powers of the Sessions Court could try all the accused in respect of the murders including the murders of the adults.

11. Separate trials do not appear to be logically sound and will result in confusion both to the prosecution and the accused and cause unnecessary harassment to the accused.

12. Therefore, in view of the concession made, in my opinion, there won't be any issue of jurisdictional error in case all the accused are tried by the Children's Court, not only in respect of two victims who are children, but in respect of two victims who are majors and deal with them in accordance with law. There is also no provision in the Goa Children's Act, 2003 to debar a trial of accused, who have committed offences against children and against adults in the course of the same transaction. Consequently, the Writ Petition is allowed, impugned order is hereby set aside and the learned Additional Sessions Judge is directed to forward the records and proceedings of Sessions Case No.2/2010 to the learned Children's Court to deal with all the accused in accordance with law.

Petition allowed.