Holding

The trial of a child under the Haryana Children Act for murder is not barred; Section 27 of the CrPC does not override the Act, and the child is entitled to its provisions.

Summary

The appellant, Raghbir, was less than 16 years old when he was convicted of murder under Section 302 IPC and sentenced to life imprisonment by a Sessions Judge. He appealed the conviction, arguing that, as a child, he should have been tried under the Haryana Children Act, 1974, which provides a separate, rehabilitative procedure for delinquent children. The State contended that Section 27 of the Criminal Procedure Code, 1973 barred the application of the Children Act to offences punishable with death or life imprisonment. The Supreme Court held that Section 27 is merely an enabling provision and does not constitute a specific provision to the contrary of the Haryana Children Act; thus, the Act and the CrPC can coexist without repugnancy. Consequently, the trial of a child for murder under the Haryana Children Act is not barred, and the appellant is entitled to the benefits of that Act. The Court allowed the appeal, set aside the conviction and sentence, and ordered that the appellant be dealt with pursuant to the Haryana Children Act.

Issues considered

Whether a person under 16 years of age accused of an offence punishable with death or life imprisonment can be tried under the Haryana Children Act, 1974.
Whether Section 27 of the Criminal Procedure Code, 1973 is a specific provision to the contrary of the Haryana Children Act.
Whether any repugnancy exists between the Haryana Children Act and the Criminal Procedure Code, invoking Article 254(1) of the Constitution.

Legislation cited

Central Children Act, 1960s. 22
Code of Criminal Procedure, 1973s. 27, s. 4, s. 5
Haryana Children Act, 1974s. 10, s. 11, s. 17, s. 19, s. 20, s. 21, s. 23, s. 2(d), s. 4, s. 5, s. 6, s. 65, s. 8, s. 9
Indian Penal Code, 1860s. 302
Reformatory Schools Act, 1897s. 65

Subjects

juvenile justicechild offenderHaryana Children ActCriminal Procedure CodeSection 27repugnancyArticle 254murderlife imprisonmentspecial law

Judgment

A 686

RAGHBIR
v.
STATE OF HARYANA
B
September 8 0 1981

(0. CHINNAPPA REDDY, A. P. SEN AND BAHARUL ISLAM, JJ.]

Haryana Children Act, 1974, sections 2(d}& 21 read with sections 4, 5 & 21
c 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
"I
Haryana Children Act, 1974.

Allowing the appeal, the Court.

HELD : l. The trial of a chlld under the prov1s1ons of the Haryana
D 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, CJ

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
E 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 Stat~ 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
F 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-BJ

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
G 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 5 of the Code the inten~
tion of the Parliament was not to exclude the trial of delinquent children for
H offences punishable with death or imprisonment for life, inasmuch as section 27
does not contain any expression to the effect "notwithstanding anything con·
tained in any Children Act passed by any State Legislature". Parliament
•
RAGHBIR v. HARYANA (Baharul Islam J.) 687
certainly was not unaware of the existence of the Haryana Children Act coming A
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
prov1s1on 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 C
Seventh Schedule of the Constitution. One of the circumstances under :which
repugna11cy between the law made by the State and the law made by the Parlia-
ment 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 Al 0
Dev Singh and 2 Ors. v. State of Madhya Prad.sh, 1978 Criminal Law
Journal 585 Madhya Pradesh, overruled.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 90
Of 1981.
E
From the Judgment and Order Dated 7th August 1980 of
the High Court uf Punjab and Haryana at Chandigarh in Cr!.
Appeal No. 909 of 1979.

Prem Malhotra for the Appellant.
F
K.G. Bhagat and R.N. Poddar for the Respondent.

The Judgment of the Court was delivered by

BAHARUL !SLAM, J. The que•tion for consideration in this
appeal by special leave is whether a person under 16 years of age G
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 imprison-
ment of life by the Sessions Judge. The appeal was dismissed by H
the High Court. The appellant then filed an application for special
leave to appeal under Article 136 of the Constitu•ion. Leave was
•
688 SUPREME COURT REPORTS [1982) I S.C.R.

A 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.

B 2. Mr. Prem Malhotra, learned counsel appearing for the
appellant, submitted that in view of Section 5 of Criminal Proce-
dure 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 sub:nitted
that an offence punishable with death or imprisonment for life
c would not he 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
D 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 whoin 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 hearing before this
Bench consisting of three members.
E
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 thal all offences are triable under the
Act by reason of the provision of section 27 of the Code so long as
F 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
G 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
H or imprisonment for life while a child cannot be sentenced to death
or imprisonment for life under the Act. In order to better appre-
RAGHBIR v. HARYANA (Baharul Islam J.) 689

ciate the differences, it is neecssary to refer to some of the salient A
provisions of the Act.

Sub-section (I) of section 4 provides for the constitution of a
children's court. It provides that notwithstanding anything contain-
ed in the Code of Criminal Procedure, 1898 (hereinafter the 'old
Code'), the State Government may constitute one or more children's 8
courts for exercising the powers and discharging the duties conferred
or imposed on such court in relation to delinquent children under
the Act. Sub-sec.ion (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. c
Sub-section (I) 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, nothwithstanding anything contained in any other
law for the time being in force but save as otherwise expressly provi-
ded in the Act, have power to deal exclusively with all proceedings
under the Act relating to neglected children or delinquent children, D
as the 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 After-
care 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 E
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 F
deems fit. Section 20, inter aliu, 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, -
G
(a) allow the child to go home after advice or admoni-
tion;

(b) direct the child to be released on probation of
good conduct and placed under the care of H
any parent, guardian, or other fit person on his
690 SUPREME COURT REPORTS [1982) I s.C.ll.

A 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 exceed-
ing three years; and

(c) make an order directing the child to be sent to a
B special school.

Section 21 is important. It prohibits passing of certain orders
against delinquent children. It provides, inter alia, that notwith-
standing anything to the contrary contained in any other law for the
time being in force, no delinquent child shall be sentenced to death
c 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-
sction (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.
D
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
E 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
F 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 r
to the Union Territories only. Section 22 of this Act is in pari
G 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
H welfare; but not so under the Criminal Procedure Codes of 1898 and
1973. The intention of the State Legislature of Haryana and of the
RAGHBIR v. HARYANA (Bahrau/ Islam J.) 691

Parliament in enacting the Children Acts was to make provisions for A
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. 8
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 I, 1974. ff there be any conflict between
any provisions of the Act and the Code, in view of Article 254( I) of
the Constitution, the provision of the Act repugnant to any pro- c
vision 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 Jack 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. D
9. Let us now set out the relevant provisions of the Code
of Criminal Procedure Code, 197 3 with which we are directly
concerned.

Section 4 reads :
E
"(!) 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 investi-
gated, inquired into, tried, and otherwise dealt with accord- F
ing 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 : G
"Nothing contained in this Code shall, in the absence
of a specific provision to the contrary, affect any special or
local Jaw for the time being in force, or any special juris-
diction or power conferred, or any special form of pro- H
·Y-
cedure prescribed, by any other law for the time being
in force."
692 SUREME COURT REPORTS [ 1982] l S.C.R.

A Section 27 reads :

"Any offence not punishable with death or imprison-
ment 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
B Chief Judicial Magistrate, or by any Court specially
empowered under tlie 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
c specific provisions to the contrary'', occurring in section 5, Mr.
Bhagat submits that section 27 is the specific provision to the con-
trary 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
D
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
E
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 "notwith-
standing anything contained in any Children Act passed by any
State Legislature". Parliament certainly was not unaware of the
F existence of the Haryana Children Act coming into force a month
•
earlier or the Central Children Act coming into focre 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, in our opinion, has not affected the r
G Haryana Children Act in the trial of delinquent children for offences
punishable with death or imprisonment for life.

1O. Criminal Procedure appears in Item Z of the Concurrent
List of the Seventh Schedule of the Constitution. One of the circum-
H stances 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
RAGHBIR v. HARYANA (Baharul Islam J.) 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 B
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 c
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: D

"The only question before us is whether the prov1s1ons
of the New Code have brought about any change in this
position. There can be no doubt that if there is an irre-
concilable conflict between the provisions of the New Code E
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. (I) 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 F
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 attract-
ed, and the provisions of the Bal Adhiniyam conferring
exclusive jurisdiction on the Juvenile Courts to try all
offences including those punishable with life imprisonment G
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 enact-
ment applicable throughout the country on account of
which the special Local Act would apply within this State H
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 SUPREME COURT REPORTS [1982] I s.c.a.

A 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: •
B "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 Adbiniyam and S. 27 of the New
c 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."

D 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 pro-
E visions 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.