Judgment

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 S. 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 for 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 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 Cl. (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 P. C. 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 SCC 229 that held the trial of a child under the provisions of the Act was not barred. In that case, however, it appears, S. 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 hearing before 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. Bhagats 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 provisions of the Act.

Sub-section (1) of Section 4 provides for the constitution of childrens 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 childrens 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 S. 5 provides that a person may be appointed as a member of the Board or as a Magistrate in the childrens 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 childrens 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 Ac