Holding

Section 5 of the Criminal Procedure Code, 1973 preserves the applicability of the Haryana Children Act, 1974, so the child must be tried under the Haryana Act and not under the CPC.

Summary

Rohtas was charged with murder under IPC s.302. The Sessions Judge, after evidence, realized Rohtas fell within the Haryana Children Act, 1974, and remitted the case to a magistrate to try him under that Act. The brother of the deceased filed a revision, and the Punjab and Haryana High Court held that the Criminal Procedure Code, 1973 (CPC) overrode the Haryana Act, directing trial under the CPC. On appeal, the Supreme Court examined the interplay of CPC s.4 and s.5 with the Haryana Act, noting that s.5 expressly preserves the applicability of any special or local law in force, such as the Haryana Children Act. Consequently, the Court held that the Haryana Act remained applicable and the trial should proceed before the magistrate under that Act. The appeal was allowed, setting aside the High Court’s decision.

Issues considered

Whether the provisions of the Criminal Procedure Code, 1973 override the Haryana Children Act, 1974 in the trial of a child accused of an offence under the IPC.
Interpretation of Section 5 of the CPC, 1973 with respect to the applicability of special or local laws.
Whether the Sessions Judge had jurisdiction to try the child under the CPC or must refer the matter to a magistrate under the Haryana Act.

Legislation cited

Subjects

Criminal ProcedureSpecial lawChild offenderJurisdictionCPC 1973Haryana Children ActSection 5Trial of minorsIPC 302

Judgment

151

ROHTAS
v.
STATE OF HARYANA & ANOTHER
July 31, 1979
[S. MURTAZA FAZAL ALI AND P. S. KA!LASAM, JJ.] B
• l
Crinzinal Procedure Code 1973 Sections 4 and 5-Scope of-Haryana
Children Act, 1974 Sections 4, 29-B-Scope of.

The appellant was charged with an offence under Section 302 l.P.C.
After the recording of evidence was concluded, it was pointed out that the
sessions Judge bad no jurisdiction to try the appellant as the appellant hap 4
c
pencd to fall under thie provisions of the Haryana Children Act, 1974. On
remand, the }.1agistrate found the appellant was a child and proceeded to try him
under the Haryana. Act. In a revision petition filed by the brother of the
deceas'ed, the High Court held that the provisions of the Criminal Procedure
Code 1973 prevailed over the provisions of the Haryana Act.

Allowing the appeal, D

HELD : The High Court was in error in holding that the Code of 1973
over-ruled the Haryana Act and that the appella.nt should have be'en tried
u,_1der the Code 1973. The view taken by the Sessions Judge on this point
was correct and the case of the app'ellant should have been referred to the
Magistrate concerned for trial in accordance with the provisions of the Haryana
• T. Act. [1540-HJ E

Section 5 carves out a clear exception to the provisions of the trial of an
offence under any sp'ecial or local laW for the time being in force or any
special jurisdiction or power conferred or any :;pecial form of procedure pres-
cribed by any other law for the time being in for'Ce. The Haryana Act woo
in force when· th'e Code of 1973 was passed and therefore the Haryana Act
far from being inconsistent with s. 5 of the Code of 1973 appears to be F
fully protected by the provisions of s. 5 of the Code of 1973. [154E-GJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 170
of 1979.
'• Appeal by Spocial Leave from the Judgment ahd Order dated G
10-11-1978 of the Punjab and Haryana High Court in Criminal Misc.
No. 4352-M of 1970.
H. D. Hardy, D. D. Sharma, Vasu Deo Sharma and Subhash C.
Mittal, for the Appellant.

H. S. Marwah and M. N. Shroff for Respondent No. 1. B

A. N. Mulla and S. K. Gambhir for Respondent No. 2.
11-475SC!/79
.•

152 SUPREME COURT REPORTS {1980] 1 S.C.R.

The Judgment of the Court was delivered by
F AZAL ALI, J. This appeal by Special L>oave is directed against a
judgment of the Punjab and Harya'na High Court dated 10th Novem-
ber, 1978 by which the High Court accepted the revision filed before
it and set aside the order of the Sessions Judge and directed him to
B conclude the trial according to law.
The points in controversy arise in the following circumstances
The appellant Rohtas was being prosecuted under Section 302
of the I'ndian P.onal Code for having caused the death of one Subhash
on 23rd December, 1974. The trial proceeded before the Sessions
c Judge and after the evidence was concluded the case was adjourned to
the 5th May, 1978 for recording the statement of the appellant. At
this stage it appears to have been pointed out to the Se_ssions Judge
that he had no jurisdiction to try the appellant as the appellant
happened to fall within the provisions of the Harya'na Children Act,
197 4, for short, to be referred to as the Haryana Act. Thereafter
D the Sessions Judge remitted the matter to the Committing Magistrate
directing him to hold an enquiry as to whether or not the appellant
Rohtas was a child within the meaning of the provisions of the
Haryana Act and after arriving at a findi'ng that the appellant was a
child, the Magistrate proceeded to try the case in accordance with
the provisions of the Haryana Act. The brothet of the deooased
filed a revision before the High Court for quashing the proceedings
against the appellant on the ground that tho SesS>vns Judge and the
Committing Magistrate were wrong i'n holding that the case of the
appellant fell within the purview of Section 4 of the Haryana Act.
The contention raised by the Revision Petitioner was based on the fact
that although the Criminal Procedure Code of 1973, hereinafter to be
F referred to as the Code of 1973, contained provisions some of which
were directly in conflict with the Haryana Act a'nd other Central Acts,
therefore, the Code of 1973 would prevail and the State Acts would
stand over-ruled by virtue of the provisions of Article 254 of the
Constitution of India. This argument appears to have been accepted
by the High Court on the ground that as the Haryana Act though
G
passed with th~ previous consent of the President of India, so far as
the State of Haryana is concerned, the Act was superseded by the
Code of 1973 which was an Act passed by Parliament subsequent
to the Haryana Act.
Before scrutinising the contentions of the parties it may be neces-
H sary to examine and analyse some of the important and relevant pro-
visions of the statute concerned. To begin with, eve'n the previous
Criminal Procedure Code of 1898 contained a special procedure for
ROHTAS v. HARYANA (Fazal Ali, J.) 153

the trial of persons who had committed offences and who were below A
the age' of 15. Such accused could be tried by a Magistrate on whom
.• powers are conferred by Sect.ion 8 Sub-section 1 of the Reformatory
Schools Act of 1897 which also provided for the custody trial or
punishment of such youthful offenders. This Section was expressly
repealed by Section 65 of the Harya'na Act which reads as below : -

"Certain Central Acts not to apply :-
•
(!) The Reformatory Schools Act, 1897 (Central Act
8 of 1897), and Sections 29-B and 399 of the Code
of Criminal Procedure, 1898 (Central Act 5 of
1898), shall cease to apply to any area in which c
this Act has been brought into force.
(2) The Women's and Children's Institutions (Lice'ncing)
Act, 1956 (Central Act 105 of 1956), shall not
apply to any Children's home, special School or ob-
servation home established and maintained under this
D
Act."
This being the position, so long as the Haryana Act was to be in
force in the Stat•e of Haryana, it is manifest that Section 29-B was
put completely out of action and any trial of an accused who was a
child within the meaning of the Haryana Act had to be conducted
in the manner prescribed by the Haryana Act. For the purposes of E
this case it is not necessary for us to detail the procedure which was
to be adopted by the Court und•cr the Haryana Act. The fact remains,
therefore, that until the passing of the Code of 1973 the Haryana
Act held the field. The Haryana Act came into force on 1-3-1974.
In fact the said Act received the assent of th<; President as far back as
on 6th of February, 1974 and was published in the Haryana Gazette F
on the 12th of February, 1974 but under the provisions of Section 1
·y Sub-section 3 of the Act it was to come itnto force on a date to be
notifod by the State Gover'nment and this was done on 1-3-1974.
Thus the Haryana Act started operating w.e.f. 1-3-1974 and any
•• offences committed thereafter by a child, as defined in the Act, were
G
to be tried according to the Procedure laid down by the Haryana Act.
So far as there is no dispute between the parties. The only difficulty
that arises is that just about the time that the Haryana Act was passed
the Cod·e of 1973 was also passed by Parliament which completely
revolutionised the entire Criminal Procedure Code of 1898. It is hot
disputed in the present case that the occurrence in the present case H
took place after coming into force of the Code of 1973 and if, there-
fore, the Code of 1973 applies to the present trial then it is obvious
154 SUPRE1'1E COURT REPORTS [1980] 1 S.C.R.

that the trial bas to be held not in accordance with the provisions
of the Haryana Act but according to the provisions of the Code of
1973. So far as the Code of 1973 is concerned, it was amended by
Act II of 1974 and came into force w.e.f. April 1, 1974. Section 4
of the Code of 1973 clearly lays down that all offences under the •
Indian P•2nal Code shall be investigated, inquired into, tried and other-
B wise dealt with according to the provisions of the said Code. Thus
at the first sight the contention of the respondent that the accused
was rightly ordered to be tded under the Code of 1973 appears to be
sound. In the view that we have taken in this case and on a close
and careful interpretaticm of Section 5 of the Code of 1973, we do
e not find it necessary to go into this point at all.

In our opinion the provisions of Section 5 of the Code in the pre-
sent case completely clinch the entire issue. Far from over ruling or
colliding with the provisions of the Harya·na Act, the Code of 1973
appears to have kept alive and fully endorsed the application of the
D Haryana Act or for that matter the provisions of any otl"" Act passed
by the State Legislature and which falls within the ambit of Section 5
of the Code of 1973 which may be extracted thus :-
"Nothing contained in this Code shall, in the absence of
a specific provision to the contrary, affect any special or
local law for the time being in- force, or any special juris-
E
diction or power conferred, or any special form of proce-
dure prescribed, by any other law for the time being in
force."
It will thus be seen that Section 5 carves out a clear exception to
the provisions of the trial of an offence under any special or local Jaw
F for the time being in force or any special jurisdiction or power con-
ferred or a'ny special form of procedure pp2scribed by any other Jaw
for the time being in force. It is not disputed that the Haryana Act
was in force when the Code of 1973 was passed and, therefore, the
Haryana Act far from being inconsistent with Section 5 of the Code of
1973 appears to be fully protected by the ·provisions of Section 5 of
G the Code of 1973 as indicated above.
In these circumstances, we are clearly of the opinion that the High
Court was in error in holding that the Code of 1973 over-ruled the
Haryana Act and that the appellant should have been tried under the
Code of 1973. We are satisfied that the view taken by the Sessions
B Judge on this point was correct and the case of the appellant should
have been referred to the Magistrate concerned for trial in accordance
with the provisions of the Haryana Act.
ROIITAS v. HARYANA (Fazal Ali, !.) 15 5

We, therefore, allow this appeal, set aside the judgment of the A
High Court and restore that of the Sessions Judge as a result of which
the appellant will now be tried by the Magistrate empowered under
the Haryana Act and in accordance with the provisions of that Act.
• The case is an old one. The Magistrate concerned should try to dis-
• pose of the same as expeditiously as possible .
B

• ! N.K.A. Appeal allowed.

•