Law Web: Landmark Supreme Court judgment clarifying heinous offences and serious offences under Juvenile justice Act 2015

1) “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.

2) It is contended by Mr. Siddharth Luthra, that if the

definitions of offences, i.e., petty, serious and heinous are read

literally then there is one category of offences which is not

covered by the Act of 2015. He submits that petty offences are

those offences where the punishment is up to 3 years, serious

offences are those where the maximum punishment is of 7 years,

and as far as heinous offences are concerned, if the definition is

read literally, then these are only those offences which provide a

minimum sentence of 7 years and above. He submits that this

leaves out a host of offences falling within the 4th category. The 4th

category of offences are those where the minimum sentence is

less than 7 years, or there is no minimum sentence prescribed

but the maximum sentence is more than 7 years. He has

submitted a chart of such offences. It is not necessary to set out

the chart inextenso

but we may highlight a few of these offences.

3) 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

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.

4) 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.

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

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.

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

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.

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.

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’.

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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 34 OF 2020

SHILPA MITTAL Vs STATE OF NCT OF DELHI

Dated:January 09, 2020

Deepak Gupta, J.
Citation: (2020) 2 SCC 787,AIR 2020 SC 405

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.

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.

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

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.

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

2nd 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

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

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;”

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.

xxx xxx xxx

(5) The Board shall take the following steps to ensure fair

and speedy inquiry, namely:—

(a) … … …

(b) … … …

(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.

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

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.

(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

Subsection

(2) of Section 19. Furthermore, under Subsection(

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