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Friday, August 23, 2013

Since only legal points raised , the petitioner is allowed to submit his case on those points only like that of PIL and as he was authorised by other petitioners also = Should the adjudication sought for by the petitioner be refused at the threshold on the basis of the fairly well established legal proposition that a third party/stranger does not have any right to participate in a criminal prosecution which is primarily the function of the State. = All that the petitioners seek is an authoritative pronouncement of the true purport and effect of the different provisions of the JJ Act so as to take a juvenile out of the purview of the said Act in case he had committed an offence, which, according to the petitioners, on a true interpretation of Section 2(p) of the Act, is required to be identified and distinguished to justifya separate course of action, namely, trial in a regular Court of Law as a specific offence under the Penal Code and in accordance with the provisions of the Code of Criminal Procedure. The adjudication that the petitioners seek clearly has implications beyond the case of the first respondent and the proceedings in which he is or may be involved. = We are, therefore, of the view that it would be appropriate for us hold that the special leave petition does not suffer from the vice of absence of locus on the part of the petitioners so as to render the same not maintainable in law. We, therefore, will proceed to hear the special leave petition on merits and attempt to provide an answer to the several questions raised by the petitioners before us. 13. We, therefore, issue notice in this special leave petition and permit the respondents to bring their respective additional pleadings on record, if any. 14. By our order dated 31.7.2013 we had permitted the first petitioner to bring to the notice of the Board that the present special leave petition was to be heard by us on 14.8.2013. We are told at the Bar that in anticipation of our orders in the matter, the Board has deferred further consideration of the proceedings against the first respondent. In the light of the view taken by us that the questions raised by the petitioners require an answer which need not be specific qua the first respondent we make it clear that it is now open for the Board to proceed further in the matter and render such orders, in accordance with law, as may be considered just, adequate and proper.

              published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40679               
 REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

               SPECIAL LEAVE PETITION (CRL.) NO. 1953 OF 2013


Dr. Subramanian Swamy and Ors.          ...  Petitioner (s)

                                   Versus

Raju, Through Member, Juvenile
Justice Board And Anr.                  ...  Respondent(s)

                               J U D G M E N T

RANJAN GOGOI, J.


1.    Should the adjudication sought for by the  petitioner  be  refused  at the threshold on the basis of the fairly well established legal  proposition that a third party/stranger does not have any  right  to  participate  in  a criminal prosecution which is primarily the  function  of  the  State.
 The
aforesaid question arises in the following facts and circumstances.

2.    On 16.12.2012, a ghastly incident of gang rape took place in a  moving
bus in the streets of Delhi.
In  connection  with  the  said  incident  six
accused were  arrested  on  22.12.2012,  one  of  whom,  namely,
 the  first
respondent in the present special leave petition was a juvenile on the  date of the occurrence  of  the  crime.   
The  victim  of  the  offence  died  on
29.1.2013.  While the Juvenile Justice Board  (hereinafter  for  short  “the
Board”) was in seisin of  the  matter  against  the  first  respondent,  the
petitioners in the special  leave  petition  approached  the  Board  seeking
impleadment in the proceedings before the Board  and  an  interpretation  of
the provisions of the Juvenile Justice (Care  and  Protection  of  Children)
Act, 2000 (hereinafter  for  short  ‘the  JJ  Act’)  so  as  to  enable  the
prosecution of the first respondent in a regular criminal court.  
According
to the petitioners while the Board did not pass any written  orders  in  the
matter it had expressed its inability to decide the question of law  brought
before  it  and  directed  the  petitioners  to  approach  a  higher  Court.

Accordingly,  on  18.1.2013  the  petitioners  filed   a   public   interest
litigation in the High Court of Delhi with the following prayers.
           (i)   Laying down an authoritative  interpretation  of  Sections
                 2(l) and 2(k) of the Act that the criterion of 18 years set
                 out therein does not comprehend  cases  grave  offences  in
                 general and of heinous crimes against women  in  particular
                 that shakes the roots of humanity in general.
           (ii)  That the definition of offences under Section 2(p) of  the
                 Act be categorized as per the  grievousness  of  the  crime
                 committed and the threat to public safety and order.
           (iii) That Section 28 of the Act be interpreted in terms of  its
                 definition,  i.e.,  Alternative  Punishment   and   serious
                 offences having minimum punishment of 7 years  imprisonment
                 and above be brought  outside  its  purview  and  the  same
                 should be tried by an Ordinary Criminal Court.
           (iv)  Incorporating in the Act, the international concept of age
                 of  Criminal  Responsibility  and  diluting   the   blanket
                 immunity provided to the juvenile offender on the basis  of
                 age.
           (v)   That the instant Act be read down in consonance  with  the
                 rights of victim as protected by various Fundamental Rights
                 including Article 14 and 21 of the Constitution of India.
           (vi)  Pass such other  and  further  order  or  orders  as  this
                 Hon’ble Court may deem fit and  proper  in  the  facts  and
                 circumstances of the case.”


3.    By order dated  23.1.2013  the  High  Court  declined  to  answer  the
questions raised on the ground  that  the  petitioners  had  an  alternative
remedy under the JJ Act against the order as may have  been  passed  by  the
Board.  On the very next day, i.e., on 24.1.2013  the  Board  dismissed  the
application filed by the  petitioners  seeking  impleadment  and  the  other
reliefs.  On 19.2.2013 the petitioners had  approached  this  Court  seeking
special leave to appeal against the order  dated  23.1.2013  passed  by  the
High Court of Delhi dismissing the public interest litigation.

4.    The prayers made by the petitioners in the public interest  litigation
before  the  High  Court  not  having  been  touched  upon  in  any   manner
whatsoever, on the ground  already  noticed,  naturally  the  scope  of  the
present special leave petition,  if  it  is   to  be  entertained,  must  be
understood to be co-extensive with the questions  arising  before  the  High
Court.

5.    At the very outset, Mr. Sidharth Luthra, learned Additional  Solicitor
General appearing for the Union as  well  as  Mr.  A.J.  Bhambhani,  learned
counsel for the first respondent  has  raised  a  vehement  plea  that  this
special leave petition should not  be  entertained  as  the  same  ex  facie
disclose serious doubts with regard to its  maintainability.  
The  gravamen
of the contentions raised by the learned counsels  for  the  respondents  is that the administration of criminal justice in India does not  envisage  any role for a third party/stranger and  it is the State  which  represents  the victim of a crime to vindicate the rights that may have  been  violated  and the larger social interest in enforcing and  maintaining  the  criminal  law system.  In this regard learned counsels have  placed  reliance  on  several
decisions of this Court, which will  be  noticed  hereinafter,  wherein  the aforesaid legal principle has been stated and reiterated.

6.    To counter the arguments  advanced  on  the  plea  of  maintainability
raised by the respondents, the first petitioner  –  Dr.  Subramanian  Swamy,
who had appeared in person and were authorized to do so on their  behalf  by
the other petitioners, has submitted that the prayers made before  the  High
Court which would now require consideration of  this  Court  make  it  clear
that the petitioners neither seek  impleadment  in  the  proceeding  pending
before the Board against the first respondent nor the payers made  have  any
specific bearing to the criminal acts committed  by  the  first  respondent.

According to the first petitioner, reference  to  the  16th  December,  2012
incident and to the role of the first respondent in  the  said  incident  is
merely incidental and illustrative.  
The approach to the High Court  and  to
this Court has been made in view of the larger public interest  inherent  in
the question raised by the petitioners.
All that the  petitioners  seek  is
an authoritative pronouncement on the provisions  of  the  JJ  Act  and  its
applicability to juveniles within the meaning of the  said  Act  who  commit
certain categories of extremely heinous  and  depraved  criminal  acts.  
On
merits, the first petitioner has contended that the  provisions  of  the  JJ
Act ought to be read down by this Court to  provide  for  categorization  of
the offences committed by a juvenile depending on depravity thereof and  for
the trial of a juvenile for the most serious and heinous  of  such  offences
by treating such acts  as  offences  under  Indian  Penal  Code.    
We  have
noticed, in brief, the contentions of the petitioners on  merits  though  we
had confined the hearing that took place on 14.8.2013  to  the  question  of
maintainability of the special leave petition  leaving  the  merits  of  the
questions and issues raised open for consideration in the event  it  becomes
so necessary.

7.    The administration of criminal justice in India can  be  divided  into two broad stages  at  which  the  machinery  operates.   
The  first  is  the
investigation of an alleged offence leading to prosecution  and  
the  second
is the  actual  prosecution  of  the  offender  in  a  Court  of  Law.   
The
jurisprudence that has evolved over the decades  has  assigned  the  primary
role and responsibility at both stages to the State though  we  must  hasten
to add that in certain exceptional situations there is a  recognition  of  a limited right in a victim  or  his  family  members  to  take  part  in  the process, particularly, at the stage of the trial. 
The law,  however,  frowns
upon and prohibits any abdication by the State of its role in the matter  at each of the stages and, in fact, does not recognize the  right  of  a  third party/stranger to participate or even to come to the aid  of  the  State  at any of the stages.

Private funding of the investigative  process  has  been
disapproved by this Court 
in Navinchanda N. Majithia v. State  of  Meghalaya and Others[1]  and the following observations amply sum up the position:
           “18. Financial crunch of any State treasury is no  justification
           for allowing a private party to supply funds to the  police  for
           conducting  such  investigation.  
Augmentation  of  the   fiscal
           resources of the State for meeting the expenses needed for  such
           investigations is the lookout of the executive. 
Failure to do it
           is no premise for directing a complainant to supply funds to the
           investigating  officer.  
Such  funding  by  interested   private
           parties would vitiate  the  investigation  contemplated  in  the
           Code. 
A vitiated investigation is the precursor for  miscarriage
           of criminal justice. 
Hence any attempt, to  create  a  precedent
permitting private parties to supply financial assistance to the
 police for conducting investigation, should be nipped in the bud
  itself. No such precedent can secure judicial imprimatur.”

8.    Coming to  the  second  stage  of  the  system  of  administration  of
criminal justice in India, this Court in Thakur Ram and Others v. The  State
of Bihar[2],  
while examining the right of  a  third  party  to  invoke  the
revisional jurisdiction under the Code of 1898, had observed as under :

           “The criminal law is not to be used as an instrument of wrecking
           private vengeance by an aggrieved party against the person  who,
           according to that party, had caused injury to it.  
Barring a few
           exceptions, in criminal matters the party who is treated as  the
           aggrieved party is the State  which  is  the  custodian  of  the
           social interests of the community at large and so it is for  the
           State to take all the steps necessary for  bringing  the  person
           who has acted against the social interests of the  community  to
           book.”



9.    In Panchhi and Others v. State of U.P.[3]   
this  Court  have  refused
leave to the National Commission for Women to intervene in an appeal  before
this Court wherein a young  mother  was  facing  execution  of  the  capital
sentence imposed on her on the  ground  that  the  National  Commission  for
Women or for that matter any other organization  cannot  have  locus  standi in a criminal case.

10.   This Court has also been slow in approving  third  party  intervention in criminal proceedings on grounds of larger public interest.  
In Janta  Dal v. H.S. Chowdhary and Others[4]  
the public  interest  litigation  petitioner
was held to have no locus to bring  a  public  interest  litigation  seeking
certain directions in a matter of issuance of a letter  of  rogatory/request
to the Swiss Government in an investigation that was then  pending  in  what
came to be popularly known as the  Bofors  case.  
Similarly,  in  Simranjit
Singh Mann v. Union of India and Anr.[5] this Court had  declined  leave  to
the President of a recognized political party,  namely,  Akali  Dal  (M)  to
challenge, under  Article  32  of  the  Constitution,  the  conviction   and
sentence of the accused found guilty of the offence under Section  302  IPC.

The view taken by this Court in Simranjit Singh Mann  (supra)  seems  to  be
based on the fact that petitioner before this Court was a total stranger  to
the offence committed by the  accused  whereas  in  Janta  Dal  (supra)  the
public interest litigation petitioner was  found  to  have  a  personal  and
private interest in the matter.  [para  119  of  the  Report  in  Janta  Dal
(supra)]

11.   Adverting to the facts  of  the  present  case,  undoubtedly,  in  the
pleadings of the petitioners there is a reference to the  first  respondent,
i.e., the juvenile who is alleged to have committed the offence.  There  can
also be no manner of doubt that if the provisions of the JJ Act  are  to  be
construed in the manner that the petitioners seek the first respondent  will
be affected. The petitioners are in no way connected with  the  incident  in
question.  
But would the above, by itself, render the  action  initiated  by
the petitioners non-maintainable on the ground that they have  no  locus  to raise the questions that have arisen being total strangers  to  the  alleged crime, as contended by the Respondents on the  strength  of  the  principles noticed above?

12.   The petitioners do not seek impleadment in  the  inquiry  against  the first respondent presently pending before the  Board  or  in  the  trial  to which he may be relegated in the event the questions of law are answered  in favour of the petitioners and that  too  within  the  requisite  time  span.
Such a prayer, i.e., for impleadment was  raised  and  decided  against  the
petitioners by the Board.  
The said prayer had not been pursued  before  the
High Court.  
Neither the same has  been  raised  before  us.  
All  that  the
petitioners seek is an authoritative pronouncement of the true  purport  and effect of the different provisions of the JJ Act so as to  take  a  juvenile out of the purview of the said Act in case  he  had  committed  an  offence, which, according to the petitioners, on a  true  interpretation  of  Section 2(p) of the Act, is required to be identified and distinguished  to  justifya separate course of action, namely, trial in a regular Court of  Law  as  a
specific offence under the Penal Code and in accordance with the  provisions of the Code of Criminal Procedure. 
The  adjudication  that  the  petitioners
seek clearly has implications beyond the case of the  first  respondent  and the proceedings in which he is or may be involved. 
In fact,  interpretation
of the relevant provisions of the JJ Act in any manner  by  this  Court,  if
made, will not be confined to the first respondent alone but  will  have  an
effect on all juveniles who may come into conflict  with  law  both  in  the
immediate  and  distant  future.  
 If  we  are  to   view   the   issue   of
maintainability of the present proceeding  from  the  aforesaid  perspective
reference to the case of the first  respondent  in  the  pleadings  must  be
understood  to  be  illustrative.   
If  this  Court  is  to  interpret   the
provisions of the Act in the manner sought by the petitioners, the  possible
effect thereof in so far as the first  Respondent  is  concerned  will  pale
into insignificance in the backdrop of the far  reaching  consequences  that
such an interpretation may have on an indeterminate number  of  persons  not
presently before the Court.  
We are, therefore, of the view  that  it  would
be appropriate for us hold that the special leave petition does  not  suffer from the vice of absence of locus on the part of the petitioners  so  as  to render the same not maintainable in law.  We,  therefore,  will  proceed  to
hear the special leave petition on merits and attempt to provide  an  answer
to the several questions raised by the petitioners before us.

13.   We, therefore, issue notice in this special leave petition and  permit
the respondents to bring their respective additional  pleadings  on  record,
if any.

14.   By our order dated 31.7.2013 we had permitted the first petitioner  to
bring to the notice of the Board that the  present  special  leave  petition
was to be heard by us on  14.8.2013.   We  are  told  at  the  Bar  that  in
anticipation of our orders in the matter, the  Board  has  deferred  further
consideration of the proceedings  against  the  first  respondent.   In  the
light of the view taken by us that the questions raised by  the  petitioners
require an answer which need not be specific qua  the  first  respondent  we
make it clear that it is now open for the Board to proceed  further  in  the
matter and render such orders, in accordance with law, as may be  considered
just, adequate and proper.


                                  …..…………………….......…CJI.
                                  [P. SATHASIVAM]



                                                     …….….........……………………J.
                                    [RANJANA PRAKASH DESAI]



                                   .….........………………......……J.
                                   [RANJAN GOGOI]
New Delhi,
August 22, 2013.
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[1]     (2000) 8 SCC 323
[2]     AIR 1966 SC 911
[3]    (1998) 7 SCC 177
[4]    (1992) 4 SCC 305
[5]    (1992) 4 SCC 653

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