Raghbir Vs. State of Haryana [1981] INSC
161 (8 September 1981)
ISLAM, BAHARUL (J) 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 child 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
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.
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 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 appreciate 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 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 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 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 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.
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