http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: RAGHBIR

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT08/09/1981

BENCH: ISLAM, BAHARUL (J) BENCH: ISLAM, BAHARUL (J) REDDY, O. CHINNAPPA (J) SEN, A.P. (J)

CITATION:  1981 AIR 2037            1982 SCR  (1) 686  1981 SCC  (4) 210

ACT:      Haryana Children Act, 1974, sections 2(d)& 21 read with sections 45  & 27  of the  Criminal  Procedure  Code,  1973- Whether a  person under  16 years  of age  and accused of an offence under  section 302 Penal Code can get the benefit of the Haryana Children Act, 1974.

HEADNOTE:      Allowing the appeal, the Court. ^      HELD: 1.  The trial  of a  chid under the provisions of the Haryana Children Act, 1974 for the offence of murder was not barred.  The appellant  here  was  a  child  within  the meaning of  that term  under clause  (d) of section 2 of the Act. [689 A, C]      2. A perusal of section 22 of the Central Children Act, 1960 (Act  LX of 1960) which is in pari materia with section 21 of  the Haryana  Children Act and other provisions of the State and Central Children Acts shows that the procedure for trial, conviction  and sentence  under the Children Acts are simple  humane  and  by  Courts  manned  with  persons  with knowledge of  child psychology and child welfare; but not so under the  Criminal Procedure  Codes of  1898 and  1973. The intention of  the State  Legislature of  Haryana and  of the Parliament  in  enacting  the  Children  Acts  was  to  make provisions for trial of delinquent children and dealing with them  in   accordance  with   such  procedure  so  that  the delinquent children  do not  come in  contact  with  accused persons who are not children and but are hardened criminals. The purpose  undoubtedly was  to reclaim delinquent children and rehabilitate  them in such a way that they become useful citizens later in life. [691 G-H, 692 A-B]      3:1. The  purpose of the Haryana Legislature as well as of the  Parliament in  enacting the Haryana Children Act and the Central  Children Act  respectively was to give separate treatment to  delinquent children  in trial,  conviction and punishment for  offences including  offences punishable with death or imprisonment for life [693 C-D]      3:2. Section 27 of the Criminal Procedure Code, 1973 is not ’a  specific  provision  to  the  contrary’  within  the meaning of  section S  of the  Code  the  intention  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

Parliament was  not  to  exclude  the  trial  of  delinquent children for  offences punishable with death or imprisonment for life,  inasmuch as  section  27  does  not  contain  any expression to the effect "notwithstanding anything contained in any  Children  Act  passed  by  any  State  Legislature". Parliament 687 certainly was  not unaware  of the  existence of the Haryana Children Act  coming into  force  a  month  earlier  or  the Central Children Act coming into force nearly fourteen years earlier. What  section 27 contemplates is that a child under the age  of 16  years may  be  tried  by  a  Chief  Judicial Magistrate  or  any  court  specially  empowered  under  the Children Act,  1960. It is an enabling provision and has not affected the Haryana Children Act in the trial of delinquent children for  offences punishable with death or imprisonment for life.                [693 C, D-G]       4:1.  If there  be any conflict between any provisions of the  Act and  the Criminal  Procedure  Act,  in  view  of Article 254(1)  of the  Constitution, the  provision of  the Haryana Children  Act repugnant  to  any  provision  of  the Criminal Procedure  Code will  be  void  to  the  extent  of repugnancy [692 B-C]      4:2. Criminal  Procedure  appears  in  Item  2  of  the Concurrent List of the Seventh Schedule of the Constitution. One of the circumstances under ’which repugnancy between the law made by the State and the law made by the Parliament may result is  whether the  provisions of  a Central  Act and  a State Act  in the Concurrent List are fully inconsistent and are absolutely  irreconcilable. In  the  case  in  hand  the relevant provisions  of the  Criminal Procedure Code and the Haryana  Children   Act  can   co-exist.  Their  spheres  of operation are different.                          [693 G-H, 694 A]      Dev Singh  and 2  Ors. v. State of Madhya Pradesh, 1978 Criminal Law Journal 585 Madhya Pradesh, overruled.

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 90 of 1981.      From the  Judgment and  order Dated  7th August 1980 of the High  Court of  Punjab and Haryana at Chandigarh in Crl. Appeal No. 909 of 1979.      Prem Malhotra for the Appellant.      K.G. Bhagat and R.N. Poddar for the Respondent.      The Judgment of the Court was delivered by      BAHARUL ISLAM,  J. The  question for  consideration  in this appeal  by special  leave is  whether a person under 16 years of  age and  accused of  an offence under section 302, Penal Code  can get the benefit of the Haryana Children Act, 1974 (hereinafter  ’the Act’). The undisputed facts are that the appellant  along with  three others was convicted of the offence of  murder and  sentenced to imprisonment of life by the Sessions  Judge. The  appeal was  dismissed by  the High Court. The  appellant then  filed an application for special leave to appeal under Article 136 of the Constitution. Leave was 688 granted confined to the question of the applicability of the Act to  his case. It is also not disputed that the appellant was less  than 16 years at the time he first appeared before the Trial Court. He was thus a ’child’ within the meaning of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

that term under clause (d) of section 2 of the Act.      2. Mr. Prem Malhotra, learned counsel appearing for the appellant, submitted  that in  view of Section 5 of Criminal Procedure Code,  1973 (hereinafter  called ’the  Code’), the appellant would  get the  benefit of  the Act;  while on the other hand,  Mr. Bhagat  appearing for the State, relying on section 27  of the Code submitted that an offence punishable with death  or imprisonment  for life  would not  be triable under the Act.      3. There  is a  decision of  this Court on the point in the case  of Rohtas v. State of Haryana reported in [1979] 4 S.C.C. 229,  that held  the  trial  of  a  child  under  the provisions of the Act was not barred. In that case, however, it appears,  section 27  of the  Code was not brought to the notice of  the Court.  In that view of the matter, the Bench consisting of  two members  including  one  of  us  (Baharul Islam, J.)  before whom  this appeal  came  up  for  hearing referred it  to a  larger Bench,  in order to avoid possible conflict of  decisions. This  is how this appeal came up for hearinbefore this Bench consisting of three members.      4. Mr.  Malhotra submits  that section  5 of  the  Code leaves special  and local  laws unaffected by the provisions of the  Code and  that, therefore,  the Act  remains  wholly intact. On  the other  hand, Mr. Bhagat’s submission is that all offences  are triable  under the  Act by  reason of  the provision of  section 27  of the  Code so  long as they fall within the  category of  offences "not punishable with death or imprisonment for life."      5. In  the Act,  ’child’ has  been defined 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. ’Delinquent child’ has  been defined  as meaning  a child  who has  been found to have committed an offence.      Apart from  procedural differences  in the  Act and the Code, for  the trial  of a child for murder, the outstanding difference is that the trial of the child under the Code may end in  the sentence of death or imprisonment for life while a child  cannot be  sentenced to  death or  imprisonment for life under the Act. In order to better appre- 689 ciate the  differences, it  is necessary to refer to some of the salient A provisions of the Act.      Sub-section  (1)   of  section   4  provides   for  the constitution  of   a  children’s  court.  It  provides  that notwithstanding anything  contained in  the Code of Criminal Procedure, 1898  (hereinafter the  ’Old  Code’),  the  State Government may  constitute 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 the  Act. Sub-section (3) of section 5 provides that a person may  be appointed  as a  member of  the Board or as a magistrate in  the children’s court only where he has in the opinion  of   the  State   Government,  knowledge  of  child psychology and  child welfare.  Sub-section (1) of section 6 of the Act provides that where a Board or a children’s court has been  constituted for  any area,  such  Board  or  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  the Act relating to neglected children or delinquent children,  as the case may be. Section 8 provides for establishment of children’s homes, section 9 for Special Schools, section 10 for observation Homes and section 11 for the establishment  of Aftercare  organisations.  Section  17 provides for the bail and custody of delinquent children. It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

provides that  a child  accused of any non-bailable offence, notwithstanding anything contained in the old Code or in any other law  for the  time being  in force be released on bail with or  without surety  unless  such  release  defeats  the purpose of  the Act. Section 19 provides that the children’s court shall  hold an  inquiry against the child charged with an offence  in accordance  with the provisions of section 37 of the  Act and  may, subject  to the provisions of the Act, make such  order in  relation to  the child as it deems fit. Section 20,  inter alia,  provides that  where a  children’s court is  satisfied on inquiry that a child has committed an offence,  then  notwithstanding  anything  to  the  contrary contained in  any other law for the time being in force, the children’s court may, if it thinks fit,-      (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 his 690           executing a  bond with  or without  surety as  the           court may require for the good behaviour and well-           being of  the child  for any  period not exceeding           three years; and      (c)  make an  order directing the child to be sent to a           special school. Section 21  is important.  It prohibits  passing of  certain orders against delinquent children. It provides, inter alia, 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.  Section 23  bars the joint trial of a delinquent child with any other person who is not a child. Sub-section (2) of section 23 enjoins separation of trials of  a delinquent  child and  a person  who is  not  a child, when they are sent up in the same case.      Sub-section (1)  of section 65 which is important is in the following terms:-           "The Reformatory  Schools Act, 1897 (Central Act 8      of 1897),  and sections  29B 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."      Section 29B of the old Code is equivalent to section 27 of the  Code. Section  399 of  the  old  Code  provided  for confinement of  the  delinquent  children  in  reformatories after conviction instead of sending them to prison.      6.  It   may  be   mentioned  that  there  are  similar provisions in  the central  Children Act,  1960 (Act  LX  of 1960) which  is applicable  to the  Union Territories  only. Section 22 of this Act is in pari materia with section 21 of the Haryana  Children Act.  A perusal of the above and other provisions of  the Act and those of the central Children Act shows that  the procedure for trial, conviction and sentence under the  Children Acts  are simple,  humane and  by courts manned with  persons with  knowledge of child psychology and child welfare; but not so under the Criminal Procedure Codes of 1898  and 1973. The intention of the State Legislature of Haryana and of the 691 Parliament  in  enacting  the  Children  Acts  was  to  make provisions for trial of delinquent children and dealing with them  in  accordance  with  such  procedures,  so  that  the delinquent children  do not  come in  contact  with  accused

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

persons who are not children and but are hardened criminals. The purpose  undoubtedly was  to reclaim delinquent children and rehabilitate  them in such a way that they become useful citizens later in life.       7. It may be mentioned at this stage that the Act came into force  on March  1, 1974  while the  Code  of  Criminal Procedure, 1973  came into  force on April 1, 1974. If there be any  conflict between  any provisions  of the Act and the Code, in  view of  Article 254(1)  of the  Constitution, the provision of  the Act repugnant to any provision of the Code will be void to the extent of repugnancy.      8. It  was not  the contention  of Mr. Bhagat appearing for the  State that  the Act was bad for lack of legislative competence of  the State  Assembly or  for any other reason. The sheet-anchor  of his  submission was  section 27  of the Code of 1973.      9. Let  us now  set out  the relevant provisions of the Code of  Criminal Procedure  Code, 1973  with which  we  are directly concerned.      Section 4 reads:           "(1) All  offences under  the  Indian  Penal  Code      shall  be   investigated,  inquired  into,  tried,  and      otherwise  dealt   with  according  to  the  provisions      hereinafter contained.           (2) All  offences under  any other  law  shall  be      investigated, inquired into, tried, and otherwise dealt      with according  to the  same provisions, but subject to      any enactment  for the  time being  in force regulating      the manner  or place  of investigating, inquiring into,      trying or otherwise dealing with such offences."      Section 5 reads:           "Nothing contained  in this  Code  shall,  in  the      absence of  a special 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." 692      Section 27 reads:           "Any  offence   not  punishable   with  death   or      imprisonment for  life, committed  by any person who at      the date when he appears or is brought before the Court      is under  the age of sixteen years, may be tried by the      Court of  a Chief  Judicial Magistrate, or by any Court      specially empowered  under the  Children Act,  1960, or      any other law for the time being in force providing for      the treatment,  training and rehabilitation of youthful      offenders."      Putting emphasis on the expressions, "in the absence of any specific  provisions  to  the  contrary",  occurring  in section 5,  Mr.  Bharat  submits  that  section  27  is  the specific  provision   to  the  contrary  and  as  such  this provision shall  affect the  Haryana Children Act which is a local law  for the  time being  in force.  We are  unable to accept the submission. As it has been pointed out above, the purpose of  the  Haryana  Legislature  as  well  as  of  the Parliament in  enacting the  Haryana Children  Act  and  the Central Children  Act (Act  LX of  1960) respectively was to give separate  treatment to  delinquent children  in  trial, conviction and  punishment for  offences including  offences punishable with  death or  imprisonment  for  life.  In  our opinion, section  27 is  not ’a  specific provision  to  the contrary’ within  the meaning  of section  5 of the Act; the intention of  the Parliament was not to exclude the trial of delinquent children  for offences  punishable with  death or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

imprisonment for  life, inasmuch  as  section  27  does  not contain  any   expression  to  the  effect  "notwithstanding anything contained  in any  Children Act passed by any State Legislature". Parliament  certainly was  not unaware  of the existence of  the Haryana  Children Act  coming into force a month earlier  or the Central Children Act coming into force nearly fourteen  years earlier. What section 27 contemplates is that  a child under the age of 16 years may be tried by a Chief Judicial  Magistrate or  any court specially empowered under the  Children Act,  1960. It is an enabling provision, and, hl  our opinion,  has not affected the Haryana Children Act  in  the  trial  of  delinquent  children  for  offences punishable with death or imprisonment for life.      10.  Criminal  Procedure  appears  in  Item  2  of  the Concurrent List of the Seventh Schedule of the Constitution. One of  the circumstances under which repugnancy between the law made by the State and the law made by the Parliament may result is  whether the  provisions of  a Central  Act and  a State Act in the Concurrent List 693 are fully inconsistent and are absolutely irreconcilable. In the A  case in  hand as  we have  shown  that  the  relevant provisions of  the Code  and the  Act  can  co-exist.  Their spheres of operation are different.      11. Mr.  Bhagat in support of his contention has relied on a  Full Bench  decision of  the Madhya Pradesh High Court reported in 1978 Criminal Law Journal 585. The Full Bench of three judges  considered  the  jurisdiction  of  the  Madhya Pradesh Bal  Adhiniyam, 1970  (15 of 1970) to try a juvenile offender for  offences punishable with death or imprisonment for life. There was a difference of opinion. The view of the majority was  that the juvenile courts constituted under the Madhya Pradesh  Bal Adhiniyam  has exclusive jurisdiction to try a  delinquent child  (a person under 16 years of age for all  offences   except  those   punishable  with   death  or imprisonment for  life even  after the  commencement of  the Code of  Criminal Procedure, 1973 (Act 2 of 1974), while the minority view of Verma J. was to the contrary. With respect, the majority  view is  erroneous. Verma  J. has  observed as follows:           "The  only  question  before  us  is  whether  the      provisions of  the New  Code  have  brought  about  any      change in  this position. There can be no doubt that if      there  is   an  irreconcilable   conflict  between  the      provisions of  the  New  Code  and  those  of  the  Bal      Adhiniyam, then  the New  Code being  the later Central      enactment it  will supersede  Bal Adhiniyam the earlier      State enactment  to the  extent of repugnancy by virtue      of Cl.  (1) of  Art. 254  of the Constitution. The real      question, therefore,  is  whether  there  is  any  such      repugnancy between  the two enactments so as to attract      Art. 254.  It is equally clear that in case there is no      such repugnancy  and the relevant provisions of the two      enactments are  capable of  co-existence, then Art. 254      would not  be attracted,  and the provisions of the Bal      Adhiniyam  conferring  exclusive  jurisdiction  on  the      Juvenile Courts  to try  all offences  including  those      punishable  with   life  imprisonment  or  death  would      continue to  operate. Such  a conclusion  is  supported      also by  the fact  that the  Bal Adhiniyam is a special      local Act  while the  New Code  is a  general enactment      applicable throughout  the country  on account of which      the special  Local Act would apply within this State in      preference to  the general law on the subject. It is in      this light  that the question has to be examined with a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

    view 694      to determine  whether there  is any such irreconcilable      conflict so as to attract Art. 254 of the Constitution.      This is the real question for decision." He has held:           "Applying  the  tests  indicated  by  the  settled      principles. I  have no hesitation in holding that there      is no  real conflict  between the provisions of the New      Code, particularly S. 27 thereof, and the provisions of      the Bal  Adhiniyam. In short, the provisions of the New      Code clearly save any special or local law like the Bal      Adhiniyam and  S. 27  of the  New  Code  is  merely  an      enabling provision  which does not express any contrary      intention to  undo the  saving provided  in S. 5 of the      New Code.  There being  thus no conflict or repugnancy,      the question  of Art.  254 of  the  Constitution  being      attracted does not arise." With respect, Verma J. has expressed the correct opinion.      12. As  a result of the foregoing discussions, we allow the appeal,  set aside  the conviction  and sentence imposed upon the  appellant  and  quash  the  entire  trial  of  the appellant. We  direct that the appellant shall be dealt with in accordance  with the  provisions of  the Haryana Children Act.      13. It is a pity that the point urged before us was not urged in any of the Courts below. S.R.                                         Appeal allowed. 695