“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? - No
From the scheme of Section 14, 15 and 19 referred to above 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.
Though we are of the view that the word ‘minimum’ cannot be treated as surplusage, yet we are duty bound to decide as to how the children who have committed an offence falling within the 4th category should be dealt with. We are conscious of the views expressed by us above that this Court cannot legislate.
However, if we do 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 we would prefer to take a view which is in favour of children and, in our opinion,
the Legislature should take the call in this matter, but till it does so, in exercise of powers conferred under Article142 of the Constitution, we direct 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’. In view of the above discussion we dispose of the appeal by answering the question set out in the first part of the judgment in the negative and hold that an offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence. However, in view of what we have held above, 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.
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.
2. “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.
1
3. 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.
4. 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 01.05.2019
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.
2
5. We have heard Mr. Siddharth Luthra, learned senior
counsel for the appellant and Mr. Mukul Rohatgi, learned senior
counsel and Mr. Hrishikesh Baruah, learned counsel appearing
for juvenile ‘X’.
6. To appreciate the contentions of the parties, it would be
relevant to make a brief reference to the history and development
of Juvenile Justice Act in India. In India there was no pan India
Act to govern children, and some states had their own
enactments, like the Madras Children Act, 1920. The Union had
also enacted the Children Act of 1960 but this was only
applicable to Union Territories and not the States. Therefore,
this Court in Sheela Barse(II) and others vs. Union of India
and others1
, observed as follows :
“4. We have by our order dated August 5, 1986 called
upon the State Governments to bring into force and to
implement vigorously the provisions of the Childrens’
Acts enacted in the various States. But we would suggest
that instead of each State having its own Childrens’ Act
different in procedure and content from the Childrens’
Act in other States, it would be desirable if the Central
Government initiates Parliamentary Legislation on the
subject, so that there is complete uniformity in regard to
the various provisions relating to children in the entire
territory of the country…”
1 (1986) 3 SCC 632
3
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 29th 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.”
7. 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.
8. 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.
4
9. 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.
10. 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
5
defined to mean a juvenile who is alleged to have committed an
offence and has not completed 18th year of age as on the day of
commission of the offence.
11. An unfortunate incident of rape and murder of a young girl
(given the identity ‘Nirbhaya’) took place in Delhi in December
2012. One of the persons involved in the crime was a juvenile,
aged 17½ years. This led to a call from society to revisit the law
and some sections of society felt that the word ‘juvenile’ had been
given a very wide meaning and juveniles have been dealt with
leniently. In one such matter Salil Bali vs. Union of India and
Another2
, this Court rejected the writ petition which prayed for
reconsideration of Sections 2(k), 2(l), and 15 of the Act of 2000.
Thereafter, a writ petition titled Subramanian Swamy and
others vs. Raju through Member, Juvenile Justice Board
and Another3
was filed challenging the provisions of the Act of
2000, especially with regard to classification of juveniles. This
petition was also dismissed. This Court held that the decision as
to who should be treated as a juvenile is a decision for the
Legislature to take and the courts cannot enter into this arena.
2 (2013) 7 SCC 705
3 (2014) 8 SCC 390
6
12. 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 (45
of 1860) or any other law for the time being in force, is
imprisonment between three to seven years;”
7
13. 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.
14. 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.
8
xxx xxx xxx
(5) The Board shall take the following steps to ensure fair
and speedy inquiry, namely:—
(a) … … …
(b) … … …
(c) … … …
(d) cases of petty offences, shall be disposed of by the
Board through summary proceedings, as per the
procedure prescribed under the Code of Criminal
Procedure, 1973 (2 of 1974);
(e) inquiry of serious offences shall be disposed of by the
Board, by following the procedure, for trial in summons
cases under the Code of Criminal Procedure, 1973 (2 of
1974);
(f) inquiry of heinous offences,—
(i) for child below the age of sixteen years as on
the date of commission of an offence shall be
disposed of by the Board under clause (e);
(ii) for child above the age of sixteen years as on
the date of commission of an offence shall be
dealt with in the manner prescribed under
section 15.”
15. The inquiry for serious offences has to be disposed of by
following the procedure for trial in summons cases under the
Code of Criminal Procedure, 1973 (Cr.PC for short). 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.
9
16. 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
14.
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
10
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.
17. 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 (2
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.
11
(2) The Children’s Court shall ensure that the final order,
with regard to a child in conflict with law, shall include
an individual care plan for the rehabilitation of child,
including follow up by the probation officer or the District
Child Protection Unit or a social worker.
(3) The Children’s Court shall ensure that the child who
is found to be in conflict with law is sent to a place of
safety till he attains the age of twentyone years and
thereafter, the person shall be transferred to a jail:
Provided that the reformative services including
educational services, skill development, alternative
therapy such as counselling, behaviour modification
therapy, and psychiatric support shall be provided to the
child during the period of his stay in the place of safety.
(4) The Children’s Court shall ensure that there is a
periodic follow up report every year by the probation
officer or the District Child Protection Unit or a social
worker, as required, to evaluate the progress of the child
in the place of safety and to ensure that there is no illtreatment to the child in any form.
(5) The reports under subsection (4) shall be forwarded
to the Children’s Court for record and follow up, as may
be required.”
18. 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 childfriendly 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
12
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.
19. 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.
20. 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,
13
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
14
not have been the intention of the Legislature. He further
submits that applying the doctrine of surplusage, if the word
‘minimum’ is removed then everything will fall into place.
21. On the other hand, Mr. Mukul Rohatgi, learned senior
counsel for the juvenile ‘X’ submitted that this Court cannot
rewrite the law. He further submits that the intention of the
Legislature cannot be deciphered by this Court only on the
ground that a category of offences have been left out. If there is a
lacuna in the scheme of the Act it is for the Legislature to correct
the lacuna and this Court cannot step in.
22. It is true that if we accept the submission of Mr. Luthra,
then things will fall into place. There would be only 3 categories
of offences and all offences punishable with imprisonment of 7
years and above would be classified as ‘heinous offence’.
However, we are not solving a jigsaw puzzle where we have to put
all the pieces in place. We are interpreting a statute which must
be interpreted as per its language and intent.
23. The Golden Rule of Interpretation was laid down by the
House of Lords in Grey vs. Pearson4
, as follows :
4 (1857) 6 HLC 61
15
“...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.
...”
24. The Privy Council in Salmon vs. Duncombe and Others5
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. ...”
25. 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 Council7
. 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 14th Edn., Lexis Nexis, pp.8990, 983 (2016)
7 [1990] 2 A.C. 716
16
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 4th 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.
26. This Court in Vasant Ganpat Padave vs. Anant
Mahadev Sawant8
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)
17
F(1)(a) of the Maharashtra Tenancy and Agricultural Lands Act,
1948. It was an admitted case of the parties that this was a law
for agrarian reforms. The provision in issue deals with the rights
of the tenant to purchase the property where the landlord is a
widow, minor or person with mental or physical disability. This
Section essentially gave a right to the tenant to exercise his right
of purchase within one year from the expiry of the period during
which such landlord is entitled to terminate the tenancy. The
Section literally provided that the landlord shall send an
intimation to the tenant of the fact that he has attained majority
before the expiry of the period during which the landlord is
entitled to terminate the tenancy under Section 31. Though a
widow or a disabled person were not required to give notice for
the tenant to exercise his right of purchase, in the case of a
minor unless the minor on attaining majority issued such a
notice, the tenant would not be able to exercise his right of
purchase. Effectively the minor on attaining majority cold defeat
the right of the tenant by not issuing the notice. It is in this
context that this Court held that this would create such an
anomaly that it would turn the entire scheme of agrarian reform
on its head. Therefore, it held as follows :
18
“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.”
27. 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
19
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.
28. 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.
20
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.
29. 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. The issue is whether in the present case we can
clearly hold what was the intention of the Legislature.
30. We 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. This incident has also been referred to by the
21
Minister in her introduction. 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, in our opinion 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 we cannot wish away the word ‘minimum’ .
31. No doubt, as submitted by Mr. Luthra 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. We 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. We may fill in the gaps but we cannot enact a
legislation, especially when the Legislature itself has enacted one.
22
We also have to keep in mind the fact that the scheme of the
Juvenile Justice (Care and Protection of Children) Act, 2015 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.
32. We may add that the High Courts of Bombay9
, Patna10, and
Punjab and Haryana11, 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 our notice. We
see no reason to take a different view.
33. It was urged by Mr. Luthra that while defining ‘heinous
offences’ the word ‘includes’ has been used which would mean
that the definition is an inclusive definition and includes things
not mentioned in the definition. We are not impressed with this
argument since the definitions of ‘petty offences’ and ‘serious
offences’ also use the word ‘includes’. In fact the word ‘includes’
is a surplusage. The word ‘includes’ in the three definition
9 Saurabh Jalinder Nangre & Ors. vs. State of Maharashtra, 2019 (1) Crimes 253 (Bom).
10 Criminal (SJ)No.1716 of 2018 titled Rajiv Kumar vs. State of Bihar. Judgment dated 18.09.2018
11 CRR 1615 of 2018 titled Bijender vs. State of Haryana and another, judgment dated 21st May,
2018.
23
clauses does not make any sense. There is nothing else to be
included. The definition is complete in itself.
34. From the scheme of Section 14, 15 and 19 referred to above
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.
35. Though we are of the view that the word ‘minimum’ cannot
be treated as surplusage, yet we are duty bound to decide as to
how the children who have committed an offence falling within
the 4th category should be dealt with. We are conscious of the
views expressed by us above that this Court cannot legislate.
However, if we do 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 we would prefer
24
to take a view which is in favour of children and, in our opinion,
the Legislature should take the call in this matter, but till it does
so, in exercise of powers conferred under Article142 of the
Constitution, we direct 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’.
36. In view of the above discussion we dispose of the appeal
by answering the question set out in the first part of the
judgment in the negative and hold that an offence which does
not provide a minimum sentence of 7 years cannot be treated to
be an heinous offence. However, in view of what we have held
above, 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.
37. In passing we may note that in the impugned judgment
the name of the Child in Conflict with Law, has been disclosed.
25
This is not in accordance with the provisions of Section 74 of
the Act of 2015, and various judgments of the courts. We
direct the High Court to correct the judgment and remove the
name of the Child in Conflict with Law.
38. We further direct that a copy of this judgment 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. Our directions shall continue to remain in force only
till such action is taken.
39. Pending application(s), if any, stand(s) disposed of.
…..…………………………………….J.
(DEEPAK GUPTA)
..……………………………………….J.
(ANIRUDDHA BOSE)
New Delhi
January 09, 2020
26
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? - No
From the scheme of Section 14, 15 and 19 referred to above 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.
Though we are of the view that the word ‘minimum’ cannot be treated as surplusage, yet we are duty bound to decide as to how the children who have committed an offence falling within the 4th category should be dealt with. We are conscious of the views expressed by us above that this Court cannot legislate.
However, if we do 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 we would prefer to take a view which is in favour of children and, in our opinion,
the Legislature should take the call in this matter, but till it does so, in exercise of powers conferred under Article142 of the Constitution, we direct 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’. In view of the above discussion we dispose of the appeal by answering the question set out in the first part of the judgment in the negative and hold that an offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence. However, in view of what we have held above, 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.
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.
2. “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.
1
3. 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.
4. 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 01.05.2019
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.
2
5. We have heard Mr. Siddharth Luthra, learned senior
counsel for the appellant and Mr. Mukul Rohatgi, learned senior
counsel and Mr. Hrishikesh Baruah, learned counsel appearing
for juvenile ‘X’.
6. To appreciate the contentions of the parties, it would be
relevant to make a brief reference to the history and development
of Juvenile Justice Act in India. In India there was no pan India
Act to govern children, and some states had their own
enactments, like the Madras Children Act, 1920. The Union had
also enacted the Children Act of 1960 but this was only
applicable to Union Territories and not the States. Therefore,
this Court in Sheela Barse(II) and others vs. Union of India
and others1
, observed as follows :
“4. We have by our order dated August 5, 1986 called
upon the State Governments to bring into force and to
implement vigorously the provisions of the Childrens’
Acts enacted in the various States. But we would suggest
that instead of each State having its own Childrens’ Act
different in procedure and content from the Childrens’
Act in other States, it would be desirable if the Central
Government initiates Parliamentary Legislation on the
subject, so that there is complete uniformity in regard to
the various provisions relating to children in the entire
territory of the country…”
1 (1986) 3 SCC 632
3
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 29th 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.”
7. 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.
8. 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.
4
9. 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.
10. 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
5
defined to mean a juvenile who is alleged to have committed an
offence and has not completed 18th year of age as on the day of
commission of the offence.
11. An unfortunate incident of rape and murder of a young girl
(given the identity ‘Nirbhaya’) took place in Delhi in December
2012. One of the persons involved in the crime was a juvenile,
aged 17½ years. This led to a call from society to revisit the law
and some sections of society felt that the word ‘juvenile’ had been
given a very wide meaning and juveniles have been dealt with
leniently. In one such matter Salil Bali vs. Union of India and
Another2
, this Court rejected the writ petition which prayed for
reconsideration of Sections 2(k), 2(l), and 15 of the Act of 2000.
Thereafter, a writ petition titled Subramanian Swamy and
others vs. Raju through Member, Juvenile Justice Board
and Another3
was filed challenging the provisions of the Act of
2000, especially with regard to classification of juveniles. This
petition was also dismissed. This Court held that the decision as
to who should be treated as a juvenile is a decision for the
Legislature to take and the courts cannot enter into this arena.
2 (2013) 7 SCC 705
3 (2014) 8 SCC 390
6
12. 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 (45
of 1860) or any other law for the time being in force, is
imprisonment between three to seven years;”
7
13. 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.
14. 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.
8
xxx xxx xxx
(5) The Board shall take the following steps to ensure fair
and speedy inquiry, namely:—
(a) … … …
(b) … … …
(c) … … …
(d) cases of petty offences, shall be disposed of by the
Board through summary proceedings, as per the
procedure prescribed under the Code of Criminal
Procedure, 1973 (2 of 1974);
(e) inquiry of serious offences shall be disposed of by the
Board, by following the procedure, for trial in summons
cases under the Code of Criminal Procedure, 1973 (2 of
1974);
(f) inquiry of heinous offences,—
(i) for child below the age of sixteen years as on
the date of commission of an offence shall be
disposed of by the Board under clause (e);
(ii) for child above the age of sixteen years as on
the date of commission of an offence shall be
dealt with in the manner prescribed under
section 15.”
15. The inquiry for serious offences has to be disposed of by
following the procedure for trial in summons cases under the
Code of Criminal Procedure, 1973 (Cr.PC for short). 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.
9
16. 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
14.
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
10
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.
17. 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 (2
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.
11
(2) The Children’s Court shall ensure that the final order,
with regard to a child in conflict with law, shall include
an individual care plan for the rehabilitation of child,
including follow up by the probation officer or the District
Child Protection Unit or a social worker.
(3) The Children’s Court shall ensure that the child who
is found to be in conflict with law is sent to a place of
safety till he attains the age of twentyone years and
thereafter, the person shall be transferred to a jail:
Provided that the reformative services including
educational services, skill development, alternative
therapy such as counselling, behaviour modification
therapy, and psychiatric support shall be provided to the
child during the period of his stay in the place of safety.
(4) The Children’s Court shall ensure that there is a
periodic follow up report every year by the probation
officer or the District Child Protection Unit or a social
worker, as required, to evaluate the progress of the child
in the place of safety and to ensure that there is no illtreatment to the child in any form.
(5) The reports under subsection (4) shall be forwarded
to the Children’s Court for record and follow up, as may
be required.”
18. 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 childfriendly 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
12
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.
19. 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.
20. 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,
13
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
14
not have been the intention of the Legislature. He further
submits that applying the doctrine of surplusage, if the word
‘minimum’ is removed then everything will fall into place.
21. On the other hand, Mr. Mukul Rohatgi, learned senior
counsel for the juvenile ‘X’ submitted that this Court cannot
rewrite the law. He further submits that the intention of the
Legislature cannot be deciphered by this Court only on the
ground that a category of offences have been left out. If there is a
lacuna in the scheme of the Act it is for the Legislature to correct
the lacuna and this Court cannot step in.
22. It is true that if we accept the submission of Mr. Luthra,
then things will fall into place. There would be only 3 categories
of offences and all offences punishable with imprisonment of 7
years and above would be classified as ‘heinous offence’.
However, we are not solving a jigsaw puzzle where we have to put
all the pieces in place. We are interpreting a statute which must
be interpreted as per its language and intent.
23. The Golden Rule of Interpretation was laid down by the
House of Lords in Grey vs. Pearson4
, as follows :
4 (1857) 6 HLC 61
15
“...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.
...”
24. The Privy Council in Salmon vs. Duncombe and Others5
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. ...”
25. 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 Council7
. 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 14th Edn., Lexis Nexis, pp.8990, 983 (2016)
7 [1990] 2 A.C. 716
16
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 4th 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.
26. This Court in Vasant Ganpat Padave vs. Anant
Mahadev Sawant8
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)
17
F(1)(a) of the Maharashtra Tenancy and Agricultural Lands Act,
1948. It was an admitted case of the parties that this was a law
for agrarian reforms. The provision in issue deals with the rights
of the tenant to purchase the property where the landlord is a
widow, minor or person with mental or physical disability. This
Section essentially gave a right to the tenant to exercise his right
of purchase within one year from the expiry of the period during
which such landlord is entitled to terminate the tenancy. The
Section literally provided that the landlord shall send an
intimation to the tenant of the fact that he has attained majority
before the expiry of the period during which the landlord is
entitled to terminate the tenancy under Section 31. Though a
widow or a disabled person were not required to give notice for
the tenant to exercise his right of purchase, in the case of a
minor unless the minor on attaining majority issued such a
notice, the tenant would not be able to exercise his right of
purchase. Effectively the minor on attaining majority cold defeat
the right of the tenant by not issuing the notice. It is in this
context that this Court held that this would create such an
anomaly that it would turn the entire scheme of agrarian reform
on its head. Therefore, it held as follows :
18
“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.”
27. 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
19
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.
28. 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.
20
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.
29. 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. The issue is whether in the present case we can
clearly hold what was the intention of the Legislature.
30. We 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. This incident has also been referred to by the
21
Minister in her introduction. 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, in our opinion 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 we cannot wish away the word ‘minimum’ .
31. No doubt, as submitted by Mr. Luthra 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. We 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. We may fill in the gaps but we cannot enact a
legislation, especially when the Legislature itself has enacted one.
22
We also have to keep in mind the fact that the scheme of the
Juvenile Justice (Care and Protection of Children) Act, 2015 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.
32. We may add that the High Courts of Bombay9
, Patna10, and
Punjab and Haryana11, 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 our notice. We
see no reason to take a different view.
33. It was urged by Mr. Luthra that while defining ‘heinous
offences’ the word ‘includes’ has been used which would mean
that the definition is an inclusive definition and includes things
not mentioned in the definition. We are not impressed with this
argument since the definitions of ‘petty offences’ and ‘serious
offences’ also use the word ‘includes’. In fact the word ‘includes’
is a surplusage. The word ‘includes’ in the three definition
9 Saurabh Jalinder Nangre & Ors. vs. State of Maharashtra, 2019 (1) Crimes 253 (Bom).
10 Criminal (SJ)No.1716 of 2018 titled Rajiv Kumar vs. State of Bihar. Judgment dated 18.09.2018
11 CRR 1615 of 2018 titled Bijender vs. State of Haryana and another, judgment dated 21st May,
2018.
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clauses does not make any sense. There is nothing else to be
included. The definition is complete in itself.
34. From the scheme of Section 14, 15 and 19 referred to above
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.
35. Though we are of the view that the word ‘minimum’ cannot
be treated as surplusage, yet we are duty bound to decide as to
how the children who have committed an offence falling within
the 4th category should be dealt with. We are conscious of the
views expressed by us above that this Court cannot legislate.
However, if we do 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 we would prefer
24
to take a view which is in favour of children and, in our opinion,
the Legislature should take the call in this matter, but till it does
so, in exercise of powers conferred under Article142 of the
Constitution, we direct 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’.
36. In view of the above discussion we dispose of the appeal
by answering the question set out in the first part of the
judgment in the negative and hold that an offence which does
not provide a minimum sentence of 7 years cannot be treated to
be an heinous offence. However, in view of what we have held
above, 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.
37. In passing we may note that in the impugned judgment
the name of the Child in Conflict with Law, has been disclosed.
25
This is not in accordance with the provisions of Section 74 of
the Act of 2015, and various judgments of the courts. We
direct the High Court to correct the judgment and remove the
name of the Child in Conflict with Law.
38. We further direct that a copy of this judgment 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. Our directions shall continue to remain in force only
till such action is taken.
39. Pending application(s), if any, stand(s) disposed of.
…..…………………………………….J.
(DEEPAK GUPTA)
..……………………………………….J.
(ANIRUDDHA BOSE)
New Delhi
January 09, 2020
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