Section 5 of the Indian Penal Code, 1860.
Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law.
This section acts as a saving clause to section 2. Taken by itself, section 2 would appear to repeal all other laws for the punishment of every offence which is made punishable by the IPC . The effect of section 5 is to qualify the general repeal prescribed by section 2. Though the Code was intended to be a general one, it was not thought desirable to make it exhaustive, and hence offences defined by local and special laws were left out of the Code, and merely declared to be punishable as theretofore.
Provisions for Punishing Mutiny and Desertion is now made in the Indian Army Act 46 of 1950, the Navy Act 62 of 1957, and the Indian Air Force Act 45 of 1950.
Although an offence is expressly made punishable by a special or local law, yet it will be punishable under the Penal Code, if the facts come within the definitions of the Code. No such prosecution is admissible if it appears upon the whole frame of the special Act that it was intended to be complete in itself, and to be enforced only by the penalties created by it; but in the absence of anything in a special Act to exclude the operation of the Code, an intention on the part of the Legislature to exclude it should not be inferred. The distinction between a statute creating a new offence with a particular penalty and a statute enlarging the ambit of an existing offence by including new acts within it with a particular penalty is well settled. In the former case the new offence is punishable by the new penalty only, in the latter it is punishable also by all such penalties as were applicable before the Act to the offence in which it is included. The principle is that where a new offence is created and the particular manner in which proceedings should be taken is laid down, then proceedings cannot be taken in any other way. However, a person cannot be punished under both the Penal Code and a special law for the same offence, and ordinarily the sentence should be under the special Act. This is, however, confined to cases where the offences are coincident or practically so.