RAGHBIR Vs. STATE OF HARYANA

JUDGEMENT

(1.) 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.