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
KG Bhagat and RN 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 that term under clause d of section 2 of the Act
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
There is a decision of this Court on the point in the case of Rohtas vs State of Haryana reported in   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
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
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 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 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
It may be mentioned that there are similar provisions in the central 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 
A perusal of the above and other provisions of the Act and those of the central 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 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
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 2541 of the Constitution the provision of the Act repugnant to any provision of the Code will be void to the extent of repugnancy
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
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  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 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 and the Central 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 imprisonment for life inasmuch as section 27 does not contain any expression to the effect notwithstanding anything contained in any passed by any State Legislature
Parliament certainly was not unaware of the existence of the Haryana coming into force a month earlier or the Central 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 
It is an enabling provision and hl our opinion has not affected the Haryana in the trial of delinquent children for offences punishable with death or imprisonment for life
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
Mr Bhagat in support of his contention has relied on a Full Bench decision of the Madhya Pradesh High Court reported in 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 article 254 of the Constitution
The real question therefore is whether there is any such repugnancy between the two enactments so as to attract article 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 article 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 view 694 to determine whether there is any such irreconcilable conflict so as to attract article 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 section 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 section 27 of the New Code is merely an enabling provision which does not express any contrary intention to undo the saving provided in section 5 of the New Code
There being thus no conflict or repugnancy the question of article 254 of the Constitution being attracted does not arise
 With respect Verma J has expressed the correct opinion
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 
It is a pity that the point urged before us was not urged in any of the Courts below
SR Appeal allowed


Summary:
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 Act LX of 1960 which is in pari materia with section 21 of the Haryana 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 31
The purpose of the Haryana Legislature as well as of the Parliament in enacting the Haryana and the Central 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 32
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 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 passed by any State Legislature
Parliament 687 certainly was not unaware of the existence of the Haryana coming into force a month earlier or the Central 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 
It is an enabling provision and has not affected the Haryana in the trial of delinquent children for offences punishable with death or imprisonment for life
693 C D G 41
If there be any conflict between any provisions of the Act and the Criminal Procedure Act in view of Article 2541 of the Constitution the provision of the Haryana repugnant to any provision of the Criminal Procedure Code will be void to the extent of repugnancy 692 B C 42
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 can co exist
Their spheres of operation are different
693 G H 694 A Dev Singh and 2 Ors
vs State of Madhya Pradesh Madhya Pradesh overruled