A.D. KOSHAL, J.
1. In this appeal by special leave the sole point requiring determination is as to whether a person under 16 years of age and accused of an offence punishable under Section 302 of the Indian Penal Code can be given the benefit of the Haryana Children Act, 1974 (hereinafter referred to as “the Act”).
2. The appellant was convicted of murder and sentenced to imprisonment for life by the trial court. His appeal was dismissed by a Division Bench of the High Court of Punjab & Haryana and the leave granted to him to appeal is limited to the question of the applicability of the Act to his case.
3. On a direction being given by this Court on January 9, 1981 to the Chief Medical Officer, Hissar, the appellant was subjected to a radiological examination and thereafter it was reported to this Court that he was between 16 and 17 years of age at the time of such examination. The trial of the appellant having been held before May 1979 he was obviously less than 16 years of age at the time he first appeared before the trial court and was thus a child within the meaning of that term as defined in clause (d) of Section 2 of the Act. There is no dispute on this aspect of the matter.
4. The learned Counsel for the appellant has contended that Section 5 of the Code of Criminal Procedure, 1973 (hereinafter called “the Code”) leaves special and local laws unaffected by the other provisions of the Code and that therefore the Act remains wholly intact. On the other hand, Mr Bhagat appearing for the State has drawn our attention to Section 27 of the Code which runs thus:
“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.”
Mr Bhagat's emphasis is on the first clause of the section, namely, the words “any offence not punishable with death or imprisonment for life”. According to him all offences would be 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”. To counter this contention, learned Counsel for the appellant relied upon sub-section (1) of Section 65 of the Act which reads:
“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 this Act has been brought into force.”
It is argued that the non obstante clause appearing in the section just above extracted having given that section an overriding effect over Section 29-B of the Code of Criminal Procedure, 1898 (which corresponds to Section 27 of the Code) the Act must have precedence over the provisions of Section 27 of the Code and that the Act would apply to a child notwithstanding the fact that he is accused of an offence punishable with death or imprisonment for life. This argument finds support from Rohtas v. State of Haryana1. In that case, however, another aspect of the matter which appears to us to be a clincher was not adverted to and that is that the Code was enforced with effect from April 1, 1974 while the Act was promulgated earlier, namely on March 1, 1974. Section 27 of the Code thus contains a provision which is later in point of time to the enforcement of the Act and would by virtue of the Code being a later central Act override the State legislation on the point. If that be so. Section 27 of the Code would bar the trial of a child under the Act in case he is accused of an offence punishable with death or transportation for life. This being our tentative opinion, we think it advisable that the case be referred for decision to a larger Bench so that there may be no scope ultimately for an argument that there is a conflict between two judgments of this Court itself. We accordingly direct that the papers be laid before the Hon'ble the Chief Justice for the constitution of such a Bench. We may mention that by its very nature the case brooks no delay and as the hearing is not likely to take more than two hours in all, it should be listed at the earliest possible and, in any case, before the end of August next.