Full Judgment Text
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PETITIONER:
ROHTAS
Vs.
RESPONDENT:
STATE OF HARYANA & ANOTHER
DATE OF JUDGMENT31/07/1979
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
KAILASAM, P.S.
CITATION:
1979 AIR 1839 1980 SCR (1) 151
1979 SCC (4) 229
CITATOR INFO :
APR 1981 SC2037 (3)
ACT:
Criminal Procedure Code 1973 Sections 4 and 5-Scope of-
Haryana Children Act, 1974 Sections 4, 29-B-Scope of.
HEADNOTE:
The appellant was charged with an offence under Section
302 I.P.C. After the recording of evidence was concluded, it
was pointed out that the Sessions Judge had no jurisdiction
to try the appellant as the appellant happened to fall
under the provisions of the Haryana Children Act, 1974. On
remand, the Magistrate found the appellant was a child and
proceeded to try him under the Haryana Act. In a revision
petition filed by the brother of the deceased, the High
Court held that the provisions of the Criminal Procedure
Code 1973 prevailed over the provisions of the Haryana Act.
Allowing the appeal,
^
HELD: The High Court was in error in holding that the
Code of 1973 over-ruled the Haryana Act and that the
appellant should have been tried under the Code 1973. The
view taken by the Sessions Judge on this point was correct
and the case of the appellant should have been referred to
the Magistrate concerned for trial in accordance with the
provisions of the Haryana Act. [154G-H]
Section 5 carves out a clear exception to the
provisions of the trial of an offence under any special or
local law for the time being in force or any special
jurisdiction or power conferred or any special form of
procedure prescribed by any other law for the time being in
force. The Haryana Act was in force when the Code of 1973
was passed and therefore the Haryana Act far from being
inconsistent with s. 5 of the Code of 1973 appears to be
fully protected by the provisions of s. 5 of the Code of
1973. [154E-G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
170 of 1979.
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Appeal by Special Leave from the Judgment and order
dated 10-11-1978 of the Punjab and Haryana High Court in
Criminal Misc. No.4352-M of 1970.
H. D. Hardy, D. D. Sharma, Vasu Deo Sharma and Subhash
C. Mittal, for the Appellant.
H. S. Marwah and M. N. Shroff for Respondent No. 1.
A. N. Mulla and S. K. Gambhir for Respondent No. 2.
152
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by Special Leave is directed
against a judgment of the Punjab and Haryana High Court
dated 10th November, 1978 by which the High Court accepted
the revision filed before it and set aside the order of the
Sessions Judge and directed him to conclude the trial
according to law.
The points in controversy arise in the following
circumstances:-
The appellant Rohtas was being prosecuted under Section
302 of the Indian Penal Code for having caused the death of
one Subhash on 23rd December, 1974. The trial proceeded
before the Sessions Judge and after the evidence was
concluded the case was adjourned to the 5th May, 1978 for
recording the statement of the appellant. At this stage it
appears to have been pointed out to the Sessions Judge that
he had no jurisdiction to try the appellant as the appellant
happened to fall within the provisions of the Haryana
Children Act, 1974, for short, to be referred to as the
Haryana Act. Thereafter the Sessions Judge remitted the
matter to the Committing Magistrate directing him to hold an
enquiry as to whether or not the appellant Rohtas was a
child within the meaning of the provisions of the Haryana
Act and after arriving at a finding that the appellant was a
child, the Magistrate proceeded to try the case in
accordance with the provisions of the Haryana Act. The
brother of the deceased filed a revision before the High
Court for quashing the proceedings against the appellant on
the ground that the Sessions Judge and the Committing
Magistrate were wrong in holding that the case of the
appellant fell within the purview of Section 4 of the
Haryana Act. The contention raised by the Revision
Petitioner was based on the fact that although the Criminal
Procedure Code of 1973, hereinafter to be referred to as the
Code of 1973, contained provisions some of which were
directly in conflict with the Haryana Act and other Central
Acts, therefore, the Code of 1973 would prevail and the
State Acts would stand over-ruled by virtue of the
provisions of Article 254 of the Constitution of India. This
argument appears to have been accepted by the High Court on
the ground that as the Haryana Act though passed with the
previous consent of the President of India, so far as the
State of Haryana is concerned, the Act was superseded by the
Code of 1973 which was an Act passed by Parliament
subsequent to the Haryana Act.
Before scrutinising the contentions of the parties it
may be necessary to examine and analyse some of the
important and relevant provisions of the statute concerned.
To begin with, even the previous Criminal Procedure Code of
1898 contained a special procedure for
153
the trial of persons who had committed offences and who were
below the age of 15. Such accused could be tried by a
Magistrate on whom powers are conferred by Section 8 Sub-
section 1 of the Reformatory Schools Act of 1897 which also
provided for the custody trial or punishment of such
youthful offenders. This Section was expressly repealed by
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Section 65 of the Haryana Act which reads as below:-
"Certain Central Acts not to apply:-
(1) The Reformatory Schools Act, 1897 (Central
Act 8 of 1897), and Sections 29-B and 399 of
the Code of Criminal Procedure, 1898 (Central
Act 5 of 1898), shall cease to apply to any
area in which this Act has been brought into
force.
(2) The Women’s and Children’s Institutions
(Licensing) Act, 1956 (Central Act 105 of
1956), shall not apply to any Children’s
home, special School or observation home
established and maintained under this Act."
This being the position, so long as the Haryana Act was
to be in force in the State of Haryana, it is manifest that
Section 29-B was put completely out of action and any trial
of an accused who was a child within the meaning of the
Haryana Act had to be conducted in the manner prescribed by
the Haryana Act. For the purposes of this case it is not
necessary for us to detail the procedure which was to be
adopted by the Court under the Haryana Act. The fact
remains, therefore, that until the passing of the Code of
1973 the Haryana Act held the field. The Haryana Act came
into force on 1-3-1974. In fact the said Act received the
assent of the President as far back as on 6th of February,
1974 and was published in the Haryana Gazette on the 12th of
February, 1974 but under the provisions of Section 1 Sub-
section 3 of the Act it was to come into force on a date to
be notified by the State Government and this was done on 1-
3-1974. Thus the Haryana Act started operating w.e.f. 1-3-
1974 and any offences committed thereafter by a child, as
defined in the Act, were to be tried according to the
Procedure laid down by the Haryana Act. so far as there is
no dispute between the parties. The only difficulty that
arises is that just about the time that the Haryana Act was
passed the Code of 1973 was also passed by Parliament which
completely revolutionised the entire Criminal Procedure Code
of 1898. It is not disputed in the present case that the
occurrence in the present case took place after coming into
force of the Code of 1973 and if, therefore, the Code of
1973 applies to the present trial then it is obvious
154
that the trial has to be held not in accordance with the
provisions of the Haryana Act but according to the
provisions of the Code of 1973. So far as the Code of 1973
is concerned, it was amended by Act II of 1974 and came into
force w.e.f. April 1, 1974. Section 4 of the Code of 1973
clearly lays down that all offences under the Indian Penal
Code shall be investigated, inquired into, tried and
otherwise dealt with according to the provisions of the said
Code. Thus at the first sight the contention of the
respondent that the accused was rightly ordered to be tried
under the Code of 1973 appears to be sound. In the view that
we have taken in this case and on a close and careful
interpretation of Section 5 of the Code of 1973, we do not
find it necessary to go into this point at all.
In our opinion the provisions of Section 5 of the Code
in the present case completely clinch the entire issue. Far
from over ruling or colliding with the provisions of the
Haryana Act, the Code of 1973 appears to have kept alive and
fully endorsed the application of the Haryana Act or for
that matter the provisions of any other Act passed by the
State Legislature and which falls within the ambit of
Section 5 of the Code of 1973 which may be extracted thus:-
"Nothing contained in this Code shall, in the
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absence of a specific provision to the contrary, affect
any special or local law for the time being in force,
or any special jurisdiction or power conferred, or any
special form of procedure prescribed, by any other law
for the time being in force."
It will thus be seen that Section 5 carves out a clear
exception to the provisions of the trial of an offence under
any special or local law for the time being in force or any
special jurisdiction or power conferred or any special form
of procedure prescribed by any other law for the time being
in force. It is not disputed that the Haryana Act was in
force when the Code of 1973 was passed and, therefore, the
Haryana Act far from being inconsistent with Section 5 of
the Code of 1973 appears to be fully protected by the
provisions of Section 5 of the Code of 1973 as indicated
above.
In these circumstances, we are clearly of the opinion
that the High Court was in error in holding that the Code of
1973 over-ruled the Haryana Act and that the appellant
should have been tried under the Code of 1973. We are
satisfied that the view taken by the Sessions Judge on this
point was correct and the case of the appellant should have
been referred to the Magistrate concerned for trial in
accordance with the provisions of the Haryana Act.
155
we, therefore, allow this appeal, set aside the
judgment of the High Court and restore that of the Sessions
Judge as a result of which the appellant will now be tried
by the Magistrate empowered under the Haryana Act and in
accordance with the provisions of that Act. The case is an
old one. The Magistrate concerned should try to dispose of
the same as expeditiously as possible.
N.K.A. Appeal allowed.
156