The Latin maxim Generalia Specialibus non Derogant which means that; general things will

derogate away from special things i.e. general law yields to special law should they operate in

the same field on same subject. Therefore, whenever there are two provisions or statutes on

same subject matter/ field then the special law will always prevails over the general

provisions. This is because the special provision acts as a proviso to the general provision and

encompasses certain requirements in order to combat with a particular or a specific situation.

For example, Section 409 of IPC provides for prosecution of a public servant, later

Prevention of Corruption Act was passed in order to define acts that constitute crimes of

corruption with the aim of preventing corruption. Section 5 (1) (c) of the same act, like IPC

also deals with prosecution of public servant for taking illegal gratification. IPC in such

situations deals with general provisions for the prosecution of public servant for taking illegal

gratification, but the P. C Act being a special statute deals with specific situations that fall

under the acts constituting crimes of corruption. But both the Act’s provide different penalties

for the same act, which leads to the confusion as to which act would prevail. For these

instances the said Maxim has been used and it has been held in various cases that special law

will over-ride general laws.

The principle descends clearly from decisions of the House of Lords in Seward v.

Owner of "The Vera Cruz", (1884) 10 App Case 59 and the Privy Council in Barker v Edger,

[1898] AC 748 “it has been affirmed and put into effect on many occasions…. If Parliament

has considered all the circumstances of, and made special provision for, a particular case, the

presumption is that a subsequent enactment of a purely general character would not have

been intended to interfere with that provision; and therefore, if such an enactment, although

inconsistent in substance, is capable of reasonable and sensible application without extending

to the case in question, it is prima facie to be construed as not so extending. The special

provision stands as an exceptional proviso upon the general. If, however, it appears from a

consideration of the general enactment in the light of admissible circumstances that

Parliament's true intention was to establish thereby a rule of universal application, then the

special provision must give way to the general."

Section 41 of the Indian Penal Code defines “special Laws” as a law applicable to a particular

subject. In other words, the word "special law" refer to a law which is not applicable

generally but which only applies to a particular or specified subject or class of subjects.

The Rajasthan Municipalities Act (1959) is a special law, as well as local law within the

definition of Sections 41 and 42, Penal Code and as such the application of Section 64, IPC,

cannot ordinarily be ruled out to the offences under the Rajasthan Municipalities Act, but in

view of the special provision in Section 265(2) of the R.M Act which provides a special

mode for the recovery of fine imposed under the R.M Act, Section 64, IPC, which deals with

the power of the Criminal Court, for awarding sentence of imprisonment in lieu of the fine,

cannot apply to the cases where fine is imposed under the Rajasthan Municipalities Act

(1959)1.

Craig and Maxwell laws of England:

Craig, page 315: In Middleton v. Crofts, (1786) 2 Atk. 650, Lord Hardwicke said :

'Subsequent Acts of Parliament in the affirmative giving new penalties & instituting new

modes of proceeding, do not repeal former methods & penalties ordained by preceding Acts

without negative words. However, Lord Campbell said in Mitchell v. Brown (1859) 28 L. 3

M. O. 53, "a later statute again describes an offence which had been previously created by a

former statute & affixes a different punishment to it & varies the procedure, or if the later

enactment expressly altered the quality of the offence and by making it a misdemeanour

instead of a felony or a felony instead of a misdemeanour, then later enactment must be taken

as operating by say of substitution & not cumulatively.

Maxwell, page 195: "Indeed, it has been laid down generally, that if a later statute again

describes an offence created by a former one & affixes a different punishment to it, varying

the procedure, for instance, an appeal where there was no appeal before the earlier statute is

impliedly repealed by it."

The General Clauses Act, 1897 Section 26 provides , “Where an act or omission constitutes

an offence under two or more enactments, then the offender shall be liable to be prosecuted

and punished under either or any of those enactments, but shall not be liable to be punished

twice for the same offence”.

1 2001 (3) WLC 575