what is the meaning of the expression “specific provision to the contrary”.
In Maru Ram v. Union of India and others, (1981) 1 SCC 107, a Constitution Bench dealt with the pari materia provision to Section 4(1) of the Code of Civil Procedure contained in Section 5 of the Code of Criminal Procedure. This Court relied upon the Lahore High Court and the Allahabad High Court to explain what is meant by “specific provision”. This Court held:- “Section 1(2) of the Criminal Procedure Code, 1898, is the previous incarnation of Section 5 of the Present Code and contains virtually the same phraseology. The expression “specific provision to the contrary” in the Code of 1898 was considered in the two Full Bench decisions (supra). The setting in which the issue was raised was precisely similar and the meaning of “specific provision to the contrary” was considered by Young, C.J., in the Lahore case where the learned Judge observed: [AIR 1940 Lah 129, 133] “The word ‘specific’ is defined in Murray’s Oxford Dictionary as ‘precise or exact in respect of fulfilment, conditions or terms; definite, explicit’.” In a similar situation, the same words fell for decision in the Allahabad case where Braund, J., discussed the meaning of “specific provision” in greater detail and observed: [AIR 1940 All 263, 269] “I have, I confess, entertained some doubt as to what exactly the words ‘specific provision’ mean. I think first, that they must denote something different from the words ‘express provision’. For a provision of a statute to be an ‘express’ provision affecting another statute or part of it, it would have, I think, to refer in so many words to the other statute or to the relevant portion of it and also to the effect intended to be produced on it. Failing this, it could hardly be said to be ‘express’ …. But the word ‘specific’ denotes, to my mind, something less exacting than the word ‘express’. It means, I think, a provision which ‘specifies’ that some ‘special law’ is to be ‘affected’ by that particular provision. A dictionary meaning of the verb ‘to specify’ as given in Murray’s New English Dictionary, is ‘to mention, speak of or name (something) definitely or explicitly; to set down or state categorically or particularly….’ and a meaning of the adjective ‘specific’ in the same dictionary is ‘precise … definite, explicit … exactly named or indicated, or capable of being so, precise, particular’. What I think the words ‘specific provision’ really mean therefore is that the particular provision of the Criminal Procedure Code must, in order to ‘affect’ the ‘special … law’, clearly indicate, in itself and not merely by implication to be drawn from the statute generally, that the ‘special law’ in question is to be affected without necessarily referring to that ‘special law’ or the effect on it intended to be produced in express terms. Lord Hatherley in (1898) 3 AC 933 at p. 938 [Thomas Challoner v. Henry WF Bolikow, (1878) 3 AC 933] has defined the word ‘specific’ in common parlance of language as meaning ‘distinct from general’…. It would, no doubt, be possible to multiply illustrations of analogous uses of the words ‘specify’ and ‘specific’. But this is I think sufficient to show that, while requiring something less than what is ‘express’, they nevertheless require something which is plain, certain and intelligible and not merely a matter of inference or implication to be drawn from the statute generally. That, to my mind, is what is meant by the word ‘specific’ in Section 1(2) CPC….” In an English case [ Re Net Book Agreement, 1957, (1962) 3 All ER 751 (RPC)] Buckley, J., has interpreted the word ‘specific’ to mean explicit and definable. While Indian usage of English words often loses the Atlantic flavour and Indian Judges owe their fidelity to Indian meaning of foreign words and phrases, here East and West meet, and “specific” is specific enough to avoid being vague and general. Fowler regards this word related to the central notion of species as distinguished from genus and says that it is “often resorted to by those who have no clear idea of their meaning but hold it to diffuse an air of educated precision”. [ Fowler’s Modern English Usage, 2nd Edn., p. 574] Stroud [ Stroud’s Judicial Dictionary Vol 4, 3rd Edn., p. 2836] says “specifically …” means “as such”. Black [ Blacks Law Dictionary 4th Edn., p. 1571] gives among other things, the following meaning for “specific”: definite, explicit; of an exact or particular nature … particular; precise. While legalese and English are sometimes enemies we have to go by judicialese which is the draftsman’s lexical guide.
The contrary view in the Biram case [(1976) 3 SCC 470 : 1976 SCC (Cri) 428 : 1976 Supp SCR 552] is more assertive than explanatory, and ipse dixit, even if judicial, do not validate themselves. We are inclined to agree with the opinion expressed in the Lahore and Allahabad cases. [Biram Sardar v. Emperor, AIR 1941 Bom 146 – [AIR 1939 PC 47 : 1939 IA 66 : 40 Cri LJ 364] A thing is specific if it is explicit. It need not be express. The antithesis is between “specific” and “indefinite” or “omnibus” and between “implied” and “express”. What is precise, exact, definite and explicit, is specific. Sometimes, what is specific may also be special but yet they are distinct in semantics. From this angle, the Criminal Procedure Code is a general Code. The remission rules are special laws but Section 433-A is a specific, explicit, definite provision dealing with a particular situation or narrow class of cases, as distinguished from the general run of cases covered by Section 432 CrPC. Section 433-A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment. It follows that Section 433-A applies in preference to any special or local law because Section 5 expressly declares that specific provisions, if any, to the contrary will prevail over any special or local law. We have said enough to make the point that “specific” is specific enough and even though “special” to “specific” is near allied and “thin partition do their bounds divide” the two are different. Section 433-A escapes the exclusion of Section 5. [at paras 35 – 38]
20. Thus, “specific provision” must mean that the particular provision in the Code of Civil Procedure must clearly indicate in itself and not merely by implication that the special law in question is to be affected. It is important to note that one of the meanings of the word “specific” is that it is distinct from something that is general. In Maru Ram’s case, Section 433A of the Code of Criminal Procedure, 1973, was challenged as being against various provisions of the Constitution. That challenge was repelled by this Court. Section 433-A begins with a non obstante clause specifically dealing with a particular situation, that is, where a sentence of imprisonment for life is imposed in certain circumstances, then notwithstanding the commutation power contained in Section 433, such person is not to be released from prison unless he has served at least 14 years of imprisonment. In applying Section 5 of the Code of Criminal Procedure, 1973 to Section 433A, great emphasis was placed on the non obstante clause contained in Section 433A, and it was ultimately held that Section 433A picks out of a mass of imprisonment cases a specific type of case – namely, life imprisonment cases and subjects such cases explicitly to a particularized treatment. It was for this reason that Section 433-A was held to be a specific provision to the contrary to the Prison Rules which were subsumed in the general provision contained in Section 432 of the Code of Criminal Procedure, 1973.[Pankajakshi(Dead) Through L.Rs. … vs Chandrika & Ors on 25 February, 2016 Constitution Bench ]
