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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 34 OF 2020
(Arising out of Special Leave Petition (Crl.) No. 7678 of 2019) SHILPA MITTAL …APPELLANT(S) Versus STATE OF NCT OF DELHI & ANR. …RESPONDENT(S) J U D G M E N T Deepak Gupta, J. Leave granted.
- “Whether an offence prescribing a maximum sentence of more than 7 years imprisonment but not providing any minimum sentence, or providing a minimum sentence of less than 7 years, can be considered to be a ‘heinous offence’ within the meaning of Section 2(33) of The Juvenile Justice (Care and Protection of Children) Act, 2015?” is the extremely important and interesting issue which arises in this case.
- The factual background is that a juvenile ‘X’ is alleged to have committed an offence punishable under Section 304 of the Indian Penal Code,1860 (IPC for short) which offence is punishable with a maximum punishment of imprisonment for life or up to 10 years and fine in the first part and imprisonment up to 10 years or fine, or both in the second part. No minimum sentence is prescribed.
- The deceased in the motor vehicle accident was the brother of the appellant herein. The juvenile at the time of occurrence was above 16 years but below 18 years. The Juvenile Justice Board vide order dated 04.06.2016 held that juvenile ‘X’ has committed a heinous offence, and, therefore should be tried as an adult. The appeal filed to the Children’s Court was also dismissed on 11.02.2019. Thereafter, the juvenile ‘X’, through his mother approached the High Court of Delhi, which vide order 01.05. held that since no minimum sentence is prescribed for the offence in question, the said offence did not fall within the ambit of Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015. This order is under challenge in this appeal.
It would be pertinent to mention that these observations were made in the context of developments happening internationally in the field of Child Rights. The United Nations General Assembly adopted the United Nations Standard Minimum Rules for the Administration of Juvenile Justice on 29 th November, 1985. These Rules are commonly referred to as the Beijing Rules. Clause 4.1 of the Rules reads as follows : “4.1 In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.”
- As is apparent, the Rules did not fix any specified age and left it to each country to frame their domestic laws, keeping in view the various relevant doctrines.
- After the adoption of the Beijing Rules, India enacted the Juvenile Justice Act, 1986. In this Act, the juvenile was defined under Section 2(h) to mean a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years. Such a juvenile was entitled to various protections and these protections were uniform irrespective of the nature of the crime committed.
- The United Nations Convention on the Rights of Child, (CRC for short) was adopted by the United Nations General Assembly on 20th^ November, 1989, and this Convention came into force on 2 nd^ September, 1990. Under Article 1 of the CRC a child was defined as every human being below the age of 18 years. However, if the domestic law provided that the child attained majority below the age of 18 years, then that would be treated to be the age till which the child would remain a juvenile. Discretion was left to the individual countries to fix the age of juvenility under the domestic laws.
- The next development was the enactment of The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act of 2000) which repealed the Juvenile Justice Act, 1986. Under the Act of 2000 a juvenile or child was defined to mean a person who had not completed 18 years of age. Even a juvenile in conflict with law was defined to mean a juvenile who was alleged to have committed an offence. Since there was no clarity with regard to the date on which the age was to be determined, the definition of juvenile in conflict with law was amended and the juvenile in conflict with law has been
- Thereafter, the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to the Act of 2015) was enacted. For the first time, the Act of 2015 made a departure from the earlier Acts. Since this Act is the subject matter of discussion in this case, we may refer to the following relevant provisions of the Act. “Section 2(12) “child” means a person who has not completed eighteen years of age; Section 2(13) “child in conflict with law” means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence; xxx xxx xxx Section 2(33) “heinous offences” includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more; xxx xxx xxx Section 2(35) “juvenile” means a child below the age of eighteen years; xxx xxx xxx Section 2(45) “petty offences” includes the offences for which the maximum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment upto three years; xxx xxx xxx Section 2(54) “serious offences” includes the offences for which the punishment under the Indian Penal Code ( of 1860) or any other law for the time being in force, is imprisonment between three to seven years;”
- A bare reading of Section 2(12), 2(13) and 2(35) clearly shows that a child or a juvenile is a person who has not completed 18 years of age, and a child in conflict with law is a child/juvenile who commits an offence when that child/juvenile has not completed 18 years of age. ‘Petty offences’ have been defined under Section 2(45) to mean offences for which the maximum punishment provided under any law including the IPC, is imprisonment up to 3 years. ‘Serious offences’ means, offences for which punishment under any law is imprisonment between 37 years. ‘Heinous offences’ have been defined to mean offences for which the minimum punishment under any law is imprisonment for 7 years or more. This was a departure from the previous legislation on the subject where the offences had not been categorised as heinous or serious.
- Section 14 of the Act of 2015 lays down the procedure to be followed by the Juvenile Justice Board while conducting an enquiry regarding a child in conflict with law under these different categories. We are mainly concerned with subsection (5) (d), (e) and (f), which reads as follows : “ 14. Inquiry by Board regarding child in conflict with law.
- The above categorisation has been done with a purpose which is reflected in Section 15 of the Act of 2015, which reads as follows : “ 15. Preliminary assessment into heinous offences by Board. (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (3) of section 18: Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psychosocial workers or other experts. Explanation.—For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. (2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974): Provided that the order of the Board to dispose of the matter shall be appealable under subsection (2) of section 101. Provided further that the assessment under this section shall be completed within the period specified in section
This Section provides that if the child offender has committed a heinous offence, the Juvenile Justice Board shall conduct a preliminary assessment with regard to the mental and physical capacity of such child to commit such offence, the ability of the
child to understand the consequence of the offence and the circumstances in which the said offence was allegedly committed. The Board is entitled to take the help of experienced psychologists, psychosocial workers or other experts in the field. The explanation makes it clear that the preliminary assessment is not to go into the merits of the trial or the allegations against the child. The inquiry is conducted only to assess the capacity of the child to commit and understand the consequence of the offence. If the Board is satisfied that the matter can be disposed of by the Board, then the Board shall follow the procedure prescribed in summons cases under the Cr.PC.
- Section 19 of the Act of 2015 empowers the Children’s Court to reassess the preliminary assessment of the Board under Section 15. It reads as follows : “ 19. Powers of Children’s Court (1) After the receipt of preliminary assessment from the Board under section 15, the Children’s Court may decide that— (i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 ( of 1974) and pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere; (ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of section 18.
Subsection (2) of Section 19. Furthermore, under Subsection(3) such a child must be kept in a place of safety and cannot be sent to jail till the child attains the age of 21 years, even if such a child has to be tried as an adult. It is also provided that though the child may be tried as an adult, reformative services, educational services, skill development, alternative therapy, counselling, behaviour modification, and psychiatric support is provided to the child during the period the child is kept in the place of safety.
- It would also be pertinent to refer to Section 21 of the Act of 2015 which clearly lays down that no child in conflict with law shall be sentenced to death or life imprisonment without the possibility of release whether tried under the Act or under the IPC, or any other law.
- It is contended by Mr. Siddharth Luthra, that if the definitions of offences, i.e., petty, serious and heinous are read literally then there is one category of offences which is not covered by the Act of 2015. He submits that petty offences are those offences where the punishment is up to 3 years, serious offences are those where the maximum punishment is of 7 years,
and as far as heinous offences are concerned, if the definition is read literally, then these are only those offences which provide a minimum sentence of 7 years and above. He submits that this leaves out a host of offences falling within the 4th^ category. The 4th category of offences are those where the minimum sentence is less than 7 years, or there is no minimum sentence prescribed but the maximum sentence is more than 7 years. He has submitted a chart of such offences. It is not necessary to set out the chart inextenso but we may highlight a few of these offences. Some of these offences relate to abetment but they also include offences such as those under Section 121A, 122 of IPC, offences relating to counterfeiting of currency, homicide not amounting to murder (as in the present case), abetment to suicide of child or innocent person and many others. He submits that it could not have been the intention of the Legislature to leave out these offences and they should have been in some category at least. The submission of Mr. Luthra is that if from the definition of ‘heinous offences’, the word ‘minimum’ is removed then all offences other than petty and serious would fall under the heading of ‘heinous offences’. He submits that if the 4th^ category of offences is left out it would result in an absurdity which could
“...I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther. ...”
- The Privy Council in Salmon vs. Duncombe and Others 5 stated the principle in the following terms : “It is, however, a very serious matter to hold that when the main object of a statute is clear, it shall be reduced to a nullity by the draftsman’s unskilfulness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, but their Lordships hold that nothing can justify it except necessity or the absolute intractability of the language used. ...”
- In Justice G.P. Singh’s treatise, “Principles of Statutory Interpretation’^6 the doctrine of surplusage as a limit on the traditional rule of strict construction has been referred to. The main judgment on this point is the decision of the House of Lords in McMonagle vs. Westminster City Council 7 . In that case the defendant’s premises contained a machine which on insertion of a coin revealed two naked women in a manifestly immoral manner. The defendant was charged with using this premises as 5 (1886) 11 AC 627 6 14 th^ Edn., Lexis Nexis, pp.8990, 983 (2016) 7 [1990] 2 A.C. 716
a sex establishment without any licence. His contention was that the Act (Local Government (Miscellaneous Provisions) Act, 1982) used the words ‘which is not unlawful’ and since he was conducting an unlawful activity he did not require a licence. It was in this context that the House of Lords held that the words ‘which are not unlawful’ should be treated as surplusage and as having been introduced by incompetent draftsmanship. In that case the intention of the Legislature was clear that no sex establishment could be set up without a licence. The words ‘which is not unlawful’ would render the entire provision nugatory. That does not happen in this case. What has happened in this case is that there is a 4 th category of offences which is not dealt with under the Act. It cannot be said with certainty that the Legislature intended to include this 4th^ category of offences in the category of ‘heinous offences’. Merely because removing the word ‘minimum’ would make the Act workable is not a sufficient ground to hold that the word ‘minimum’ is surplusage.
- This Court in Vasant Ganpat Padave vs. Anant Mahadev Sawant 8 was dealing with the provisions of Section 32 8 2019 SCC Online SC 1226 ( Judgment dated 18.09.2018 Civil Appeal No. 11774 of 2018)
“ 25. … This anomaly indeed turns the entire scheme of agrarian reform on its head. We have thus to see whether the language of Section 32F can be added to or subtracted from, in order that the absurdity aforementioned and the discrimination between persons who are similarly situate be obviated.” After discussing various rules of interpretation the Court held that instead of striking out the classification as a whole it would delete the words ‘of the fact that he has attained majority’. We may refer to para 43 which is relevant : “ 43. Given the fact that the object of the 1956 Amendment, which is an agrarian reform legislation, and is to give the tiller of the soil statutory title to land which such tiller cultivates; and, given the fact that the literal interpretation of Section 32F(1)(a) would be contrary to justice and reason and would lead to great hardship qua persons who are similarly circumstanced; as also to the absurdity of land going back to an absentee landlord when he has lost the right of personal cultivation, in the teeth of the object of the 1956 Amendment as mentioned hereinabove, we delete the words “..of the fact that he has attained majority..”. Without these words, therefore, the landlord belonging to all three categories has to send an intimation to the tenant, before the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31.”
- Mr. Luthra, drew our attention to the speech of the Minister while introducing the Bill in relation to the Act of 2015. We need not repeat the speech in detail but reading of the same clearly indicates that the Minister while dealing with the issue of ‘heinous offences’ wherein the children could be tried as adults
mainly made reference to the offences of murder, rape and terrorism. There are some other speeches that have been referred to by Mr. Luthra, but we are not referring to the same because the intention of the Legislature as a whole cannot be gauged from the speeches of individual members, some of whom supported the Bill and some of whom did not support the Bill. The main reliance could only be made on the objects and reasons and introduction of the Bill by the Minister which basically makes reference to offences like murder, rape, terrorism, where the minimum punishment is more than 7 years.
- There can be no quarrel with the submission made by Mr. Siddharth Luthra that in a given circumstance, this Court can even add or subtract words from a statute. However, this can be done only when the intention of the Legislature is clear. We not only have to look at the principles of statutory interpretation but in the present case, the conundrum we face is that how do we decipher the intention of the Legislature. It is not necessary that the intention of the Legislature is the one what the judge feels it should be. If the intention of the Legislature is clear then the Court can get over the inartistic or clumsy wording of the statute.
