DEBESH BHATTACHARYA Vs. STATE

JUDGEMENT

(1.) The petitioner was committed to the Court of Sessions, Alipur to stand trial under S.302 of the Indian Penal Code. Before the trial Judge the petitioner filed an application stating that he was a child within the meaning of S. 2(d) of the West Bengal Children Act, 1960 (hereinafter referred to as the Act) and as such the only court which could try him was that constituted under the Act and not any other court; and the trial before the Court of Sessions was not competent. Relying upon the provisions of S.5 read with S.27 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) the learned Judge held that the provisions of the Act stood overruled by S. 27 of the Code and as such the trial of the petitioner before him was competent. Aggrieved by the said order the petitioner moved this Court and obtained the present Rule.

(2.) To appreciate the contentions of the learned Judge it will be relevant to refer to the provisions of Ss. 5 and 27 of the Code which read as under: "Section 5 - 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 jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." "Section 27 - 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 (60 of 1960), or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders."

(3.) According to the learned Judge the provision of S. 27 of the Code is specific provision contrary to the provisions of the Act and consequently it is not the special law, viz. the Act which shall govern the trial of the petitioner, but the ordinary law, namely, the Code of Criminal Procedure. The answer to the question raised before us thus boils down to the interpretation of the words "in the absence of a specific provision to the contrary" in S. 5 of the Code.