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.
-----------------------
[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
-----------------------
14
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.
-----------------------
[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
-----------------------
14
