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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