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Report No. 156

Special Legislation vis-a-vis Indian Penal Code

10.12. For the framers of the Code, it was impossible to make the Code exhaustive of all offences. Section 5 of the Code is important and has wisely left all pre-existing, special, or local laws. The Code deals only with general offences, and it cannot cover the offences which are covered by local or special laws. The saving of special or local law is in accordance with the general principle generalia specialibus non-derogant which means that general words do not derogate from special. In other words, general words do not repeal or modify special legislation (Seward v. Vora, AC 68).

10.13. The effect of this section is to qualify the general repeal contained in section 2 of the code seeking to repeal all other laws for punishment of offence. Thus the code was intended to be a general one, it was not found desirable to make it exhaustive and hence offences defined by local or special laws were left out of the code, and merely declared to be punishable as theretofore.

Therefore, it is provided in section 26 of the General Clauses Act, 1897 that-"Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punishable under any of those enactments, but shall not be liable to be punished twice for same offence." [Also double jeopardy-Article 20(2) of the Constitution].

But this, of course, assumed, that there is nothing in the one to exclude the operation of the other. In other words, where a special or local Act prescribes its own penalties they are presumed to be exhaustive, unless there is anything in the Act to save general law. Moreover, it is well settled law that where an Act is punishable both under the Code as well as under a special or local law, the preferable course is to convict under the special law and not under the Code, both because specialia generalibus derogant, as well as because the special Acts are primarily constituted to punish such delinquencies.

Moreover, it is proposed in clause 3 of the I.P.C. (Amendment) Bill, 1978 to substitute section 5 of the I.P.C. as under:

"Nothing in this code shall affect the provisions of any special or local law."

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