Juvenile Justice (Care and Protection of Children) Act, 2015:
ss. 2 (33) and 15 – Commission of offence u/s. 304 IPC – By a juvenile above 16 years and below 18 years of age – Juvenile Justice Board held that the juvenile having committed a heinous offence has to be tried as an adult – High Court held that since no minimum sentence is prescribed for the offence in question, the offence did not fall within the ambit of s. 2(33) and hence was not a heinous offence – Appeal to Supreme Court – Held: An offence which does not provide a minimum sentence of 7 years cannot be treated to be a heinous offence – Meaning of the words ‘heinous offence’ cannot be expanded by removing the word ‘minimum’ from the definition – However, the Act does not deal with the 4th category of offences (viz. Offence where maximum sentence is more than 7 years imprisonment, but no minimum sentence of less than 7 years is provided) – There is a gap in the legislation – The court cannot fill the gap by saying that these offences should be treated as heinous offences – The legislature should take a call in this matter – However, till the Legislature takes the call, the court in exercise of power u/Art. 142 of the Constitution directs that from the date the Act came into force, all the 4th category offences shall be treated as ‘serious offence’.
Interpretation of Statutes:
Correction of errors in legislation – Held: If the intention of the legislature is clear from the objects and reasons of the statute, the court can correct errors in the legislation and may write down or omit/delete/add words to serve the purpose of legislation – But when intention of legislature is not clear, the Court cannot add or subtract words from the statute.
Disposing of the appeal, the Court
HELD : 1. A bare reading of Section 2(12), 2(13) and 2(35) of Juvenile Justice (Care and Protection of Children) Act, 2015 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. [Paras 13 and 14][488EH]
2. The inquiry for serious offences has to be disposed of by following the procedure for trial in summons cases under Cr.PC. As far as heinous offences are concerned if the child is below 16 years then the procedure prescribed for serious offences is to be followed; but if the child is above 16 years then assessment in terms of Section 15 has to be made. The above categorisation has been done with a purpose which is reflected in Section 15 of the Act of 2015. [Paras 15 and 16][489 F-G]
3. Section 15 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 re-assess the preliminary assessment of the Board under Section 15. [Paras
16 and 17][490E-H]
4. The Children’s Court constituted under the Act of 2015 has to determine whether there is actually any need for trial of the child as an adult under the provisions of Cr.PC and pass appropriate orders in this regard. The Children’s Court should also take into consideration the special needs of the child, tenets of fair trial and maintaining child-friendly atmosphere. The Court can also hold that there is no need to try the child as an adult. Even if the Children’s Court holds that the child has to be tried as an adult, it must ensure that the final order includes an individual care plan for rehabilitation of the child as specified in Sub-section (2) of Section 19. Furthermore, under Sub-section(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. Section 21 of the Act of 2015 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. [Paras 18 and 19][491H; 492AD]
5.1 It is true 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. 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. However, when the wording of the statute is clear but the intention of the Legislature is unclear, the Court cannot add or subtract words from the statute to give it a meaning which the Court feels would fit into the scheme of things. [Para 28][490DE]
5.2 There can be no manner of doubt that if the intention of the Legislature is absolutely clear from the objects and reasons of the Act then the Court can correct errors made by the person who drafted the legislation and may write down or omit/delete/add words to serve the purpose of the legislation and ensure that the legislation is given a meaning which was intended to by the Legislature. [Para 29][496F-G]
5.3 The Court must also while interpreting an Act see what is the purpose of the Act. The purpose of the Act of 2015 is to ensure that children who come in conflict with law are dealt with separately and not like adults. After the unfortunate incident of rape on December 16, 2012 in Delhi, where one juvenile was involved, there was a call from certain sections of the society that juveniles indulging in such heinous crimes should not be dealt with like children. In these circumstances, to say that the intention of the Legislature was to include all offences having a punishment of more than 7 years in the category of ‘heinous offences’ would not be justified. When the language of the section is clear and it prescribes a minimum sentence of 7 years imprisonment while dealing with heinous offences then the Court cannot wish away the word ‘minimum’. [Para 30][496G-H; 497AB]
5.4 No doubt, there appears to be a gross mistake committed by the framers of the legislation. The legislation does not take into consideration the 4th category of offences. How and in what manner a juvenile who commits such offences should be dealt with was something that the Legislature should have clearly spelt out in the Act. There is an unfortunate gap. The Court cannot fill the gap by saying that these offences should be treated as heinous offences. Whereas on the one hand there are some offences in this category which may in general parlance be termed as heinous, there are many other offences which cannot be called as heinous offences. It is not for this Court to legislate. The Court may fill in the gaps but cannot enact a legislation, especially when the Legislature itself has enacted one. The Court also has to keep in mind the fact that the scheme of the 2015 Act is that children should be protected. Treating children as adults is an exception to the rule. It is also a well settled principle of statutory interpretation that normally an exception has to be given a restricted meaning. [Para 31][497C-E]
6. The High Courts of Bombay, Patna, and Punjab and Haryana, have taken a view that the category of ‘heinous offences’ cannot include offences falling within the 4th category. No contrary view has been brought to the notice of this Court. There is no reason to take a different view. [Para 32][497F]
7. From the scheme of Section 14, 15 and 19 it is clear that the Legislature felt that before the juvenile is tried as an adult a very detailed study must be done and the procedure laid down has to be followed. Even if a child commits a heinous crime, he is not automatically to be tried as an adult. This also clearly indicates that the meaning of the words ‘heinous offence’ cannot be expanded by removing the word ‘minimum’ from the definition. [Para 34][498C]
8. Though the Court is of the view that the word ‘minimum’ cannot be treated as surplusage, yet the Court is duty bound to decide as to how the children who have committed an offence falling within the 4th category should be dealt with. This Court cannot legislate. However, if this Court does not deal with this issue there would be no guidance to the Juvenile Justice Boards to deal with children who have committed such offences which definitely are serious, or may be more than serious offences, even if they are not heinous offences. Since two views are possible the Court would prefer to take a view which is in favour of children and, the Legislature should take the call in this matter, but till it does so, in exercise of powers conferred under Article 142 of the Constitution, it is directed that from the date when the Act of 2015 came into force, all children who have committed offences falling in the 4th category shall be dealt with in the same manner as children who have committed ‘serious offences’. [Para 35][498C-F]
9. Therefore, an offence which does not provide a minimum sentence of 7 years cannot be treated to be a heinous offence. However, the Act does not deal with the 4th category of offences viz., offence where the maximum sentence is more than 7 years imprisonment, but no minimum sentence or minimum sentence of less than 7 years is provided, shall be treated as ‘serious offences’ within the meaning of the Act and dealt with accordingly till the Parliament takes the call on the matter. [Para 36][498GJ][499-A]
10. In the impugned judgment the name of the Child in Conflict with Law, has been disclosed. This is not in accordance with the provisions of Section 74 of the Act of 2015, and various judgments of the courts. The High Court is directed to correct the judgment and remove the name of the Child in Conflict with Law. [Para 37] [499 A-B]
11. A copy of this judgment is directed be sent to the Secretary Law, Ministry of Law and Justice, Government of India, Secretary, Ministry of Women and Child Development, Government of India and the Secretary, Home, Ministry of Home Affairs, and Registrar General, Delhi High Court, who shall ensure that the issue raised in this judgment is addressed by the Parliament as early as possible or by the Executive by issuing an Ordinance. The directions in this judgment shall continue to remain in force only till such action is taken. [Para 38][499B-D]
Vasant Ganpat Padave v. Anant Mahadev Sawant 2019 SCC Online SC 1226 – relied on.
Saurabh Jalinder Nangre & Ors. v. State of
Maharashtra 2019 (1) Crimes 253 (Bom); Rajiv Kumar v. State of Bihar Criminal (SJ) No.1 716 of 2018 Judgment dated 18.09.2018; Bijender v. State of Haryana and another CRR 1615 of 2018 judgment
dated 21st May, 2018 – approved.
Sheela Barse (II) and others v. Union of India and others (1986) 3 SCC 632 ; Salil Bali v. Union of India and Another (2013) 7 SCC 705 ; Subramanian Swamy and others v. Raju through Member, Juvenile Justice Board and Another (2014) 8 SCC 390 : [2014]
9 SCR 283 – referred to.
Grey v. Pearson (1857) 6 HLC 61 ; Salmon v.
Duncombe and Others (1886) 11 AC 627 ; Mc Monagle v. Westminster City Council [1990] 2 A.C. 716 – referred to.
“Principle of Statutory Interpretation” by Justice G.P. Singh’s – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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