SHILPA MITTAL versus STATE OF NCT OF DELHI & ANR. on 9 January 2020

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[2020] 2 S.C.R. 478

SUPREME COURT REPORTS

[2020] 2 S.C.R.

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SHILPA MITTAL

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STATE OF NCT OF DELHI & ANR.

(Criminal Appeal No. 34 of 2020)

BJANUARY 09, 2020

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]

Juvenile Justice (Care and Protection of Children) Act, 2015:

ss. 2 (33) and 15 – Commission of offence u/s. 304 IPC – ByCa juvenile above 16 years and below 18 years of age – JuvenileJustice Board held that the juvenile having committed a heinousoffence has to be tried as an adult – High Court held that since nominimum sentence is prescribed for the offence in question, theoffence did not fall within the ambit of s. 2(33) and hence was nota heinous offence – Appeal to Supreme Court – Held: An offenceDwhich does not provide a minimum sentence of 7 years cannot betreated to be a heinous offence – Meaning of the words ‘heinousoffence’ cannot be expanded by removing the word ‘minimum’ fromthe definition – However, the Act does not deal with the 4[th] categoryof offences (viz. Offence where maximum sentence is more than 7Eyears imprisonment, but no minimum sentence of less than 7 yearsis provided) – There is a gap in the legislation – The court cannotfill the gap by saying that these offences should be treated as heinousoffences – The legislature should take a call in this matter – However,till the Legislature takes the call, the court in exercise of power u/Art. 142 of the Constitution directs that from the date the Act cameFinto force, all the 4[th] category offences shall be treated as ‘seriousoffence’.

Interpretation of Statutes:

Correction of errors in legislation – Held: If the intention ofGthe legislature is clear from the objects and reasons of the statute,the court can correct errors in the legislation and may write downor omit/delete/add words to serve the purpose of legislation – Butwhen intention of legislature is not clear, the Court cannot add orsubtract words from the statute.

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Disposing of the appeal, the Court

HELD : 1. A bare reading of Section 2(12), 2(13) and 2(35)of Juvenile Justice (Care and Protection of Children) Act, 2015clearly shows that a child or a juvenile is a person who has notcompleted 18 years of age, and a child in conflict with law is achild/juvenile who commits an offence when that child/juvenilehas not completed 18 years of age. ‘Petty offences’ have beendefined under Section 2(45) to mean offences for which themaximum punishment provided under any law including the IPC,is imprisonment up to 3 years. ‘Serious offences’ means, offencesfor which punishment under any law is imprisonment between 3-7 years. ‘Heinous offences’ have been defined to mean offencesfor which the minimum punishment under any law is imprisonmentfor 7 years or more. This was a departure from the previouslegislation on the subject where the offences had not beencategorised as heinous or serious. Section 14 of the Act of 2015lays down the procedure to be followed by the Juvenile JusticeBoard while conducting an enquiry regarding a child in conflictwith law under these different categories. [Paras 13 and 14][488E-H]

2. The inquiry for serious offences has to be disposed of byfollowing the procedure for trial in summons cases under Cr.PC.As far as heinous offences are concerned if the child is below 16years then the procedure prescribed for serious offences is to befollowed; but if the child is above 16 years then assessment interms of Section 15 has to be made. The above categorisationhas been done with a purpose which is reflected in Section 15 ofthe Act of 2015. [Paras 15 and 16][489 F-G]

3. Section 15 provides that if the child offender hascommitted a heinous offence, the Juvenile Justice Board shallconduct a preliminary assessment with regard to the mental andphysical capacity of such child to commit such offence, the abilityof the child to understand the consequence of the offence andthe circumstances in which the said offence was allegedlycommitted. The Board is entitled to take the help of experiencedpsychologists, psychosocial workers or other experts in the field.The explanation makes it clear that the preliminary assessmentis not to go into the merits of the trial or the allegations against A

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Athe child. The inquiry is conducted only to assess the capacity ofthe child to commit and understand the consequence of theoffence. If the Board is satisfied that the matter can be disposedof by the Board, then the Board shall follow the procedureprescribed in summons cases under the Cr.PC. Section 19 of theAct of 2015 empowers the Children’s Court to re-assess theBpreliminary assessment of the Board under Section 15. [Paras16 and 17][490E-H]

4. The Children’s Court constituted under the Act of 2015has to determine whether there is actually any need for trial ofthe child as an adult under the provisions of Cr.PC and passCappropriate orders in this regard. The Children’s Court shouldalso take into consideration the special needs of the child, tenetsof fair trial and maintaining child-friendly atmosphere. The Courtcan 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 triedDas an adult, it must ensure that the final order includes anindividual care plan for rehabilitation of the child as specified inSub-section (2) of Section 19. Furthermore, under Sub-section(3)such a child must be kept in a place of safety and cannot be sentto jail till the child attains the age of 21 years, even if such a childhas to be tried as an adult. It is also provided that though theEchild may be tried as an adult, reformative services, educationalservices, skill development, alternative therapy, counselling,behaviour modification, and psychiatric support is provided tothe child during the period the child is kept in the place of safety.Section 21 of the Act of 2015 clearly lays down that no child inFconflict with law shall be sentenced to death or life imprisonmentwithout the possibility of release whether tried under the Act orunder the IPC, or any other law. [Paras 18 and 19][491H; 492A-D]

5.1 It is true that in a given circumstance, this Court canGeven add or subtract words from a statute. However, this can bedone only when the intention of the Legislature is clear. It is notnecessary that the intention of the Legislature is the one whatthe judge feels it should be. If the intention of the Legislature isclear then the Court can get over the inartistic or clumsy wordingof the statute. However, when the wording of the statute is clearH

but the intention of the Legislature is unclear, the Court cannotadd or subtract words from the statute to give it a meaning whichthe Court feels would fit into the scheme of things. [Para 28][490D-E]

5.2 There can be no manner of doubt that if the intention ofthe Legislature is absolutely clear from the objects and reasonsof the Act then the Court can correct errors made by the personwho drafted the legislation and may write down or omit/delete/add words to serve the purpose of the legislation and ensure thatthe legislation is given a meaning which was intended to by the Legislature. [Para 29][496F-G]

5.3 The Court must also while interpreting an Act see whatis the purpose of the Act. The purpose of the Act of 2015 is toensure that children who come in conflict with law are dealt withseparately and not like adults. After the unfortunate incident ofrape on December 16, 2012 in Delhi, where one juvenile wasinvolved, there was a call from certain sections of the societythat juveniles indulging in such heinous crimes should not bedealt with like children. In these circumstances, to say that theintention of the Legislature was to include all offences having apunishment of more than 7 years in the category of ‘heinousoffences’ would not be justified. When the language of the sectionis clear and it prescribes a minimum sentence of 7 yearsimprisonment while dealing with heinous offences then the Courtcannot wish away the word ‘minimum’. [Para 30][496G-H; 497A-B]

5.4 No doubt, there appears to be a gross mistakecommitted by the framers of the legislation. The legislation doesnot take into consideration the 4[th] category of offences. How andin what manner a juvenile who commits such offences should bedealt with was something that the Legislature should have clearlyspelt out in the Act. There is an unfortunate gap. The Court cannotfill the gap by saying that these offences should be treated asheinous offences. Whereas on the one hand there are someoffences in this category which may in general parlance be termedas heinous, there are many other offences which cannot be calledas heinous offences. It is not for this Court to legislate. The Courtmay fill in the gaps but cannot enact a legislation, especially when A

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Athe Legislature itself has enacted one. The Court also has tokeep in mind the fact that the scheme of the 2015 Act is thatchildren should be protected. Treating children as adults is anexception to the rule. It is also a well settled principle of statutoryinterpretation that normally an exception has to be given arestricted meaning. [Para 31][497C-E]B

6. The High Courts of Bombay, Patna, and Punjab andHaryana, have taken a view that the category of ‘heinous offences’cannot include offences falling within the 4[th] category. No contraryview has been brought to the notice of this Court. There is noreason to take a different view. [Para 32][497F]C

7. From the scheme of Section 14, 15 and 19 it is clear thatthe Legislature felt that before the juvenile is tried as an adult avery detailed study must be done and the procedure laid downhas to be followed. Even if a child commits a heinous crime, he isnot automatically to be tried as an adult. This also clearly indicatesDthat the meaning of the words ‘heinous offence’ cannot beexpanded by removing the word ‘minimum’ from the definition.[Para 34][498C]

8. Though the Court is of the view that the word ‘minimum’cannot be treated as surplusage, yet the Court is duty bound toEdecide as to how the children who have committed an offencefalling within the 4[th] category should be dealt with. This Courtcannot legislate. However, if this Court does not deal with thisissue there would be no guidance to the Juvenile Justice Boardsto deal with children who have committed such offences whichFdefinitely are serious, or may be more than serious offences, evenif they are not heinous offences. Since two views are possiblethe Court would prefer to take a view which is in favour of childrenand, the Legislature should take the call in this matter, but till itdoes so, in exercise of powers conferred under Article 142 of theConstitution, it is directed that from the date when the Act ofG2015 came into force, all children who have committed offencesfalling in the 4[th] category shall be dealt with in the same manneras children who have committed ‘serious offences’. [Para35][498C-F]

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9. Therefore, an offence which does not provide a minimumsentence of 7 years cannot be treated to be a heinous offence.However, the Act does not deal with the 4[th] category of offencesviz., offence where the maximum sentence is more than 7 yearsimprisonment, but no minimum sentence or minimum sentenceof less than 7 years is provided, shall be treated as ‘seriousoffences’ within the meaning of the Act and dealt with accordinglytill the Parliament takes the call on the matter. [Para 36][498G-J][499-A]

10. In the impugned judgment the name of the Child inConflict with Law, has been disclosed. This is not in accordancewith the provisions of Section 74 of the Act of 2015, and variousjudgments of the courts. The High Court is directed to correctthe judgment and remove the name of the Child in Conflict withLaw. [Para 37] [499 A-B]

11. A copy of this judgment is directed be sent to theSecretary 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 HomeAffairs, and Registrar General, Delhi High Court, who shallensure that the issue raised in this judgment is addressed by theParliament as early as possible or by the Executive by issuing anOrdinance. The directions in this judgment shall continue toremain in force only till such action is taken. [Para 38][499B-D]

Vasant Ganpat Padave v. Anant Mahadev Sawant 2019SCC Online SC 1226 – relied on.

Saurabh Jalinder Nangre & Ors. v. State ofMaharashtra 2019 (1) Crimes 253 (Bom); Rajiv Kumarv. State of Bihar Criminal (SJ) No.1 716 of 2018Judgment dated 18.09.2018; Bijender v. State ofHaryana and another CRR 1615 of 2018 judgmentdated 21[st] May, 2018 – approved.

Sheela Barse (II) and others v. Union of India andothers (1986) 3 SCC 632 ; Salil Bali v. Union of Indiaand Another (2013) 7 SCC 705 ; Subramanian Swamy A

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Aand others v. Raju through Member, Juvenile JusticeBoard and Another (2014) 8 SCC 390 : [2014]9 SCR 283 – referred to.

Grey v. Pearson (1857) 6 HLC 61 ; Salmon v.Duncombe and Others (1886) 11 AC 627 ; Mc MonagleBv. Westminster City Council [1990] 2 A.C. 716 –referred to.

“Principle of Statutory Interpretation” by Justice G.P.Singh’s – referred to.

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 34 of 2020.

From the Judgment and Order dated 01.05.2019 of the High Courtof Delhi at New Delhi in Criminal Revision Petition No. 351 of 2019.

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Siddharth Luthra, Sr. Adv., Ms. Pritha Srikumar Iyer, Ms. ArunimaKedia, Ms. Sayali K., Ms. Maneka Khanna, Akshay Sehgal, KunalMimani, Saif-u Din, Ms. Pritha Srikumar, Advs. for the Appellant.

Ms. Sonia Mathur, Mukul Rohatgi, Sr. Advs., Mohan Prasad Gupta,Ms. Sunita Sharma, Sushil Dube, Ms. Divya A. Nair, Ms. Anju Aggarwal,FPunit Pathak (for B. V. Balaram Das), Hrishikesh Baruah, SiddhantKaushik, Ashish Kumar, Advs. for the Respondents.

The Judgment of the Court was delivered by DEEPAK GUPTA, J.G1. Leave granted.

2. “Whether an offence prescribing a maximum sentence of morethan 7 years imprisonment but not providing any minimum sentence, orproviding a minimum sentence of less than 7 years, can be considered tobe a ‘heinous offence’ within the meaning of Section 2(33) of TheJuvenile Justice (Care and Protection of Children) Act, 2015?” is theHextremely important and interesting issue which arises in this case.

3. The factual background is that a juvenile ‘X’ is alleged to havecommitted an offence punishable under Section 304 of the Indian PenalCode,1860 (IPC for short) which offence is punishable with a maximumpunishment of imprisonment for life or up to 10 years and fine in the firstpart 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 ofthe appellant herein. The juvenile at the time of occurrence was above16 years but below 18 years. The Juvenile Justice Board vide orderdated 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’sCourt was also dismissed on 11.02.2019. Thereafter, the juvenile ‘X’,through his mother approached the High Court of Delhi, which videorder 01.05.2019 held that since no minimum sentence is prescribed forthe offence in question, the said offence did not fall within the ambit ofSection 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 counselfor the appellant and Mr. Mukul Rohatgi, learned senior counsel andMr. Hrishikesh Baruah, learned counsel appearing for juvenile ‘X’.

6. To appreciate the contentions of the parties, it would be relevantto make a brief reference to the history and development of JuvenileJustice Act in India. In India there was no pan India Act to governchildren, and some states had their own enactments, like the MadrasChildren Act, 1920. The Union had also enacted the Children Act of1960 but this was only applicable to Union Territories and not the States.Therefore, this Court in Sheela Barse(II) and others vs. Union ofIndia and others[1], observed as follows :- “4. We have by our order dated August 5, 1986 called uponthe State Governments to bring into force and to implementvigorously the provisions of the Childrens’ Acts enacted in thevarious States. But we would suggest that instead of each Statehaving its own Childrens’ Act different in procedure and contentfrom the Childrens’ Act in other States, it would be desirable ifthe Central Government initiates Parliamentary Legislation on thesubject, so that there is complete uniformity in regard to the various A

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Aprovisions relating to children in the entire territory of thecountry…”

It would be pertinent to mention that these observations weremade in the context of developments happening internationally in thefield of Child Rights. The United Nations General Assembly adoptedBthe United Nations Standard Minimum Rules for the Administration ofJuvenile Justice on 29[th] November, 1985. These Rules are commonlyreferred to as the Beijing Rules. Clause 4.1 of the Rules reads asfollows :- “4.1 In those legal systems recognizing the concept of the age ofcriminal responsibility for juveniles, the beginning of that age shallnot be fixed at too low an age level, bearing in mind the facts ofemotional, mental and intellectual maturity.”

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7. As is apparent, the Rules did not fix any specified age and leftit to each country to frame their domestic laws, keeping in view thevarious relevant doctrines.D

8. After the adoption of the Beijing Rules, India enacted the JuvenileJustice Act, 1986. In this Act, the juvenile was defined under Section2(h) to mean a boy who has not attained the age of 16 years or a girlwho has not attained the age of 18 years. Such a juvenile was entitled toEvarious protections and these protections were uniform irrespective ofthe nature of the crime committed.

9. The United Nations Convention on the Rights of Child, (CRCfor short) was adopted by the United Nations General Assembly on 20[th]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 humanbeing below the age of 18 years. However, if the domestic law providedthat the child attained majority below the age of 18 years, then thatwould 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 juvenilityunder the domestic laws.

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10. The next development was the enactment of The JuvenileJustice (Care and Protection of Children) Act, 2000 (hereinafter referredto 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 personwho had not completed 18 years of age. Even a juvenile in conflict with H

law was defined to mean a juvenile who was alleged to have committedan offence. Since there was no clarity with regard to the date on whichthe age was to be determined, the definition of juvenile in conflict withlaw was amended and the juvenile in conflict with law has been definedto mean a juvenile who is alleged to have committed an offence and hasnot completed 18[th] year of age as on the day of commission of theoffence.

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 re-visit the law and some sections ofsociety felt that the word ‘juvenile’ had been given a very wide meaningand juveniles have been dealt with leniently. In one such matter SalilBali vs. Union of India and Another[2], this Court rejected the writpetition which prayed for reconsideration of Sections 2(k), 2(l), and 15of the Act of 2000. Thereafter, a writ petition titled Subramanian Swamyand others vs. Raju through Member, Juvenile Justice Board andAnother[3] was filed challenging the provisions of the Act of 2000,especially with regard to classification of juveniles. This petition wasalso dismissed. This Court held that the decision as to who should betreated as a juvenile is a decision for the Legislature to take and thecourts cannot enter into this arena.

12. Thereafter, the Juvenile Justice (Care and Protection ofChildren) Act, 2015 (hereinafter referred to the Act of 2015) was enacted.For the first time, the Act of 2015 made a departure from the earlierActs. Since this Act is the subject matter of discussion in this case, wemay refer to the following relevant provisions of the Act.

“Section 2(12) “child” means a person who has not completedeighteen years of age; Section 2(13) “child in conflict with law” means a child who isalleged or found to have committed an offence and who has notcompleted eighteen years of age on the date of commission ofsuch offence; xxx xxx xxx 2 (2013) 7 SCC 705

3 (2014) 8 SCC 390

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ASection 2(33) “heinous offences” includes the offences for whichthe minimum punishment under the Indian Penal Code (45 of 1860)or any other law for the time being in force is imprisonment forseven years or more; xxx xxx xxx B

Section 2(35) “juvenile” means a child below the age of eighteenyears; xxx xxx xxx Section 2(45) “petty offences” includes the offences for whichthe maximum punishment under the Indian Penal Code (45 of1860) or any other law for the time being in force is imprisonmentupto three years; C

xxx xxx xxx

Section 2(54) “serious offences” includes the offences for whichDthe punishment under the Indian Penal Code (45 of 1860) or anyother law for the time being in force, is imprisonment betweenthree to seven years;”

13. A bare reading of Section 2(12), 2(13) and 2(35) clearly showsthat a child or a juvenile is a person who has not completed 18 years ofEage, and a child in conflict with law is a child/juvenile who commits anoffence when that child/juvenile has not completed 18 years of age.‘Petty offences’ have been defined under Section 2(45) to mean offencesfor which the maximum punishment provided under any law includingthe IPC, is imprisonment up to 3 years. ‘Serious offences’ means,offences for which punishment under any law is imprisonment betweenF3-7 years. ‘Heinous offences’ have been defined to mean offences for which the minimum punishment under any law is imprisonment for 7years or more. This was a departure from the previous legislation onthe subject where the offences had not been categorised as heinous orserious.

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14. Section 14 of the Act of 2015 lays down the procedure to befollowed by the Juvenile Justice Board while conducting an enquiryregarding a child in conflict with law under these different categories.We are mainly concerned with sub-section (5) (d), (e) and (f), whichreads as follows :- H

“14. Inquiry by Board regarding child in conflict with law.

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(5) The Board shall take the following steps to ensure fair andspeedy inquiry, namely:—

(a) … … …

(b) … … …

(c) … … …

(d) cases of petty offences, shall be disposed of by the Boardthrough summary proceedings, as per the procedure prescribedunder 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 theCode 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 ofcommission of an offence shall be disposed of by the Boardunder clause (e);

(ii) for child above the age of sixteen years as on the date ofcommission of an offence shall be dealt with in the mannerprescribed under section 15.”

15. The inquiry for serious offences has to be disposed of byfollowing the procedure for trial in summons cases under the Code ofCriminal Procedure, 1973 (Cr.PC for short). As far as heinous offencesare concerned if the child is below 16 years then the procedure prescribedfor serious offences is to be followed; but if the child is above 16 yearsthen assessment in terms of Section 15 has to be made.

16. The above categorisation has been done with a purpose whichis reflected in Section 15 of the Act of 2015, which reads as follows :- “15. Preliminary assessment into heinous offences byBoard. - (1) In case of a heinous offence alleged to have beencommitted by a child, who has completed or is above the age ofsixteen years, the Board shall conduct a preliminary assessmentwith regard to his mental and physical capacity to commit such A

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offence, ability to understand the consequences of the offenceand the circumstances in which he allegedly committed the offence,and may pass an order in accordance with the provisions of sub-section (3) of section 18:

Provided that for such an assessment, the Board may take theBassistance of experienced psychologists or psycho-social workersor other experts.

Explanation.—For the purposes of this section, it is clarified thatpreliminary assessment is not a trial, but is to assess the capacityof such child to commit and understand the consequences of theCalleged offence.

(2) Where the Board is satisfied on preliminary assessment thatthe matter should be disposed of by the Board, then the Boardshall follow the procedure, as far as may be, for trial in summonscase under the Code of Criminal Procedure, 1973 (2 of 1974):

DProvided that the order of the Board to dispose of the matter shallbe appealable under sub-section (2) of section 101.

Provided further that the assessment under this section shall becompleted within the period specified in section 14.

This Section provides that if the child offender has committed aEheinous offence, the Juvenile Justice Board shall conduct a preliminaryassessment with regard to the mental and physical capacity of suchchild to commit such offence, the ability of the child to understand theconsequence of the offence and the circumstances in which the saidoffence was allegedly committed. The Board is entitled to take the helpFof experienced psychologists, psychosocial workers or other experts inthe field. The explanation makes it clear that the preliminary assessmentis 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 commitand understand the consequence of the offence. If the Board is satisfiedthat the matter can be disposed of by the Board, then the Board shallGfollow the procedure prescribed in summons cases under the Cr.PC.

17. Section 19 of the Act of 2015 empowers the Children’s Courtto re-assess the preliminary assessment of the Board under Section 15.It reads as follows :- H

“19. Powers of Children’s Court - (1) After the receipt ofpreliminary assessment from the Board under section 15, theChildren’s Court may decide that—

(i) there is a need for trial of the child as an adult as per theprovisions of the Code of Criminal Procedure, 1973 (2 of 1974)and pass appropriate orders after trial subject to the provisions ofthis section and section 21, considering the special needs of thechild, the tenets of fair trial and maintaining a child friendlyatmosphere;

(ii) there is no need for trial of the child as an adult and mayconduct an inquiry as a Board and pass appropriate orders inaccordance with the provisions of section 18.

(2) The Children’s Court shall ensure that the final order, withregard to a child in conflict with law, shall include an individualcare plan for the rehabilitation of child, including follow up by theprobation officer or the District Child Protection Unit or a socialworker.

(3) The Children’s Court shall ensure that the child who is foundto be in conflict with law is sent to a place of safety till he attainsthe age of twenty-one years and thereafter, the person shall betransferred to a jail:

Provided that the reformative services including educationalservices, skill development, alternative therapy such as counselling,behaviour modification therapy, and psychiatric support shall beprovided to the child during the period of his stay in the place ofsafety.

(4) The Children’s Court shall ensure that there is a periodic followup report every year by the probation officer or the District ChildProtection Unit or a social worker, as required, to evaluate theprogress of the child in the place of safety and to ensure thatthere is no ill-treatment to the child in any form.

(5) The reports under sub-section (4) shall be forwarded to theChildren’s Court for record and follow up, as may be required.”

18. The Children’s Court constituted under the Act of 2015 has todetermine whether there is actually any need for trial of the child as an A

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Aadult under the provisions of Cr.PC and pass appropriate orders in thisregard. The Children’s Court should also take into consideration thespecial needs of the child, tenets of fair trial and maintaining child-friendlyatmosphere. The Court can also hold that there is no need to try thechild as an adult. Even if the Children’s Court holds that the child has tobe tried as an adult, it must ensure that the final order includes an individualBcare plan for rehabilitation of the child as specified in Sub-section (2) ofSection 19. Furthermore, under Sub-section(3) such a child must be keptin a place of safety and cannot be sent to jail till the child attains the ageof 21 years, even if such a child has to be tried as an adult. It is alsoprovided that though the child may be tried as an adult, reformativeCservices, educational services, skill development, alternative therapy,counselling, behaviour modification, and psychiatric support is providedto 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 of2015 which clearly lays down that no child in conflict with law shall beDsentenced to death or life imprisonment without the possibility of releasewhether tried under the Act or under the IPC, or any other law.

20. It is contended by Mr. Siddharth Luthra, that if the definitionsof offences, i.e., petty, serious and heinous are read literally then there isone category of offences which is not covered by the Act of 2015. HeEsubmits that petty offences are those offences where the punishment isup to 3 years, serious offences are those where the maximum punishmentis of 7 years, and as far as heinous offences are concerned, if the definitionis read literally, then these are only those offences which provide aminimum sentence of 7 years and above. He submits that this leaves outa host of offences falling within the 4[th] category. The 4[th] category ofFoffences are those where the minimum sentence is less than 7 years, orthere is no minimum sentence prescribed but the maximum sentence ismore than 7 years. He has submitted a chart of such offences. It is notnecessary to set out the chart in-extenso but we may highlight a few ofthese offences. Some of these offences relate to abetment but theyGalso include offences such as those under Section 121A, 122 of IPC,offences relating to counterfeiting of currency, homicide not amountingto murder (as in the present case), abetment to suicide of child or innocentperson and many others. He submits that it could not have been theintention of the Legislature to leave out these offences and they shouldhave been in some category at least. The submission of Mr. Luthra isH

that if from the definition of ‘heinous offences’, the word ‘minimum’ isremoved then all offences other than petty and serious would fall underthe heading of ‘heinous offences’. He submits that if the 4[th] category ofoffences is left out it would result in an absurdity which could not havebeen the intention of the Legislature. He further submits that applyingthe doctrine of surplusage, if the word ‘minimum’ is removed theneverything will fall into place.

21. On the other hand, Mr. Mukul Rohatgi, learned senior counselfor the juvenile ‘X’ submitted that this Court cannot rewrite the law. Hefurther submits that the intention of the Legislature cannot be decipheredby this Court only on the ground that a category of offences have beenleft out. If there is a lacuna in the scheme of the Act it is for theLegislature to correct the lacuna and this Court cannot step in.

22. It is true that if we accept the submission of Mr. Luthra, thenthings will fall into place. There would be only 3 categories of offencesand all offences punishable with imprisonment of 7 years and abovewould be classified as ‘heinous offence’. However, we are not solvinga jigsaw puzzle where we have to put all the pieces in place. We areinterpreting a statute which must be interpreted as per its language andintent.

23. The Golden Rule of Interpretation was laid down by the Houseof Lords in Grey vs. Pearson[4], as follows :- “...I have been long and deeply impressed with the wisdom of therule, now, I believe, universally adopted, at least in the Courts ofLaw in Westminster Hall, that in construing wills and indeedstatutes, and all written instruments, the grammatical and ordinarysense of the words is to be adhered to, unless that would lead tosome absurdity, or some repugnance or inconsistency with therest of the instrument, in which case the grammatical and ordinarysense of the words may be modified, so as to avoid that absurdityand inconsistency, but no farther. ...”

24. The Privy Council in Salmon vs. Duncombe and Others[5]stated the principle in the following terms :- “It is, however, a very serious matter to hold that when the mainobject of a statute is clear, it shall be reduced to a nullity by the 4 (1857) 6 HLC 61

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494SUPREME COURT REPORTS

Adraftsman’s unskilfulness or ignorance of law. It may be necessaryfor a Court of Justice to come to such a conclusion, but theirLordships hold that nothing can justify it except necessity or theabsolute intractability of the language used. ...”

25. In Justice G.P. Singh’s treatise, “Principles of StatutoryBInterpretation’[6] the doctrine of surplusage as a limit on the traditionalrule of strict construction has been referred to. The main judgment onthis point is the decision of the House of Lords in McMonagle vs.Westminster City Council[7]. In that case the defendant’s premisescontained a machine which on insertion of a coin revealed two nakedwomen in a manifestly immoral manner. The defendant was chargedCwith using this premises as a sex establishment without any licence. Hiscontention was that the Act (Local Government (MiscellaneousProvisions) Act, 1982) used the words ‘which is not unlawful’ and sincehe was conducting an unlawful activity he did not require a licence. Itwas in this context that the House of Lords held that the words ‘whichDare not unlawful’ should be treated as surplusage and as having beenintroduced by incompetent draftsmanship. In that case the intention ofthe Legislature was clear that no sex establishment could be set upwithout a licence. The words ‘which is not unlawful’ would render theentire provision nugatory. That does not happen in this case. What hashappened in this case is that there is a 4[th] category of offences which isEnot dealt with under the Act. It cannot be said with certainty that theLegislature intended to include this 4[th] category of offences in the categoryof ‘heinous offences’. Merely because removing the word ‘minimum’would make the Act workable is not a sufficient ground to hold that theword ‘minimum’ is surplusage.F

26. This Court in Vasant Ganpat Padave vs. Anant MahadevSawant[8] was dealing with the provisions of Section 32-F(1)(a) of theMaharashtra Tenancy and Agricultural Lands Act, 1948. It was anadmitted 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 theGproperty where the landlord is a widow, minor or person with mental orphysical disability. This Section essentially gave a right to the tenant toexercise his right of purchase within one year from the expiry of the 6 14th Edn., Lexis Nexis, pp.89-90, 983 (2016)

7 [1990] 2 A.C. 716

8 2019 SCC Online SC 1226 (Judgment dated 18.09.2018 Civil Appeal No. 11774 ofH2018)

period during which such landlord is entitled to terminate the tenancy.The Section literally provided that the landlord shall send an intimation tothe tenant of the fact that he has attained majority before the expiry ofthe period during which the landlord is entitled to terminate the tenancyunder Section 31. Though a widow or a disabled person were not requiredto give notice for the tenant to exercise his right of purchase, in the caseof a minor unless the minor on attaining majority issued such a notice,the tenant would not be able to exercise his right of purchase. Effectivelythe minor on attaining majority cold defeat the right of the tenant by notissuing the notice. It is in this context that this Court held that this wouldcreate such an anomaly that it would turn the entire scheme of agrarianreform on its head. Therefore, it held as follows :- “25. … This anomaly indeed turns the entire scheme of agrarianreform on its head. We have thus to see whether the language ofSection 32-F can be added to or subtracted from, in order that theabsurdity aforementioned and the discrimination between personswho are similarly situate be obviated.”

After discussing various rules of interpretation the Court held thatinstead of striking out the classification as a whole it would delete thewords ‘of the fact that he has attained majority’. We may refer to para43 which is relevant :- “43. Given the fact that the object of the 1956 Amendment, whichis an agrarian reform legislation, and is to give the tiller of the soilstatutory title to land which such tiller cultivates; and, given thefact that the literal interpretation of Section 32-F(1)(a) would becontrary to justice and reason and would lead to great hardshipqua persons who are similarly circumstanced; as also to theabsurdity of land going back to an absentee landlord when he haslost the right of personal cultivation, in the teeth of the object ofthe 1956 Amendment as mentioned hereinabove, we delete thewords “..of the fact that he has attained majority..”. Withoutthese words, therefore, the landlord belonging to all three categorieshas to send an intimation to the tenant, before the expiry of theperiod during which such landlord is entitled to terminate the tenancyunder Section 31.”

27. Mr. Luthra, drew our attention to the speech of the Ministerwhile introducing the Bill in relation to the Act of 2015. We need not A

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Arepeat the speech in detail but reading of the same clearly indicates thatthe Minister while dealing with the issue of ‘heinous offences’ whereinthe children could be tried as adults mainly made reference to the offencesof murder, rape and terrorism. There are some other speeches that havebeen referred to by Mr. Luthra, but we are not referring to the samebecause the intention of the Legislature as a whole cannot be gaugedBfrom the speeches of individual members, some of whom supported theBill and some of whom did not support the Bill. The main reliance couldonly be made on the objects and reasons and introduction of the Bill bythe Minister which basically makes reference to offences like murder, rape, terrorism, where the minimum punishment is more than 7 years.C

28. There can be no quarrel with the submission made by Mr.Siddharth Luthra that in a given circumstance, this Court can even addor subtract words from a statute. However, this can be done only whenthe intention of the Legislature is clear. We not only have to look at theprinciples of statutory interpretation but in the present case, the conundrumDwe face is that how do we decipher the intention of the Legislature. Itis not necessary that the intention of the Legislature is the one what thejudge feels it should be. If the intention of the Legislature is clear thenthe Court can get over the inartistic or clumsy wording of the statute.However, when the wording of the statute is clear but the intention ofthe Legislature is unclear, the Court cannot add or subtract words fromEthe statute to give it a meaning which the Court feels would fit into thescheme of things.

29. There can be no manner of doubt that if the intention of theLegislature is absolutely clear from the objects and reasons of the Actthen the Court can correct errors made by the person who drafted theFlegislation and may write down or omit/delete/add words to serve thepurpose of the legislation and ensure that the legislation is given a meaningwhich was intended to by the Legislature. The issue is whether in thepresent case we can clearly hold what was the intention of theLegislature.G

30. We must also while interpreting an Act see what is the purposeof the Act. The purpose of the Act of 2015 is to ensure that childrenwho come in conflict with law are dealt with separately and not likeadults. After the unfortunate incident of rape on December 16, 2012 inDelhi, where one juvenile was involved, there was a call from certain H

sections of the society that juveniles indulging in such heinous crimesshould not be dealt with like children. This incident has also been referredto by the Minister in her introduction. In these circumstances, to saythat the intention of the Legislature was to include all offences having apunishment of more than 7 years in the category of ‘heinous offences’would not, in our opinion be justified. When the language of the sectionis clear and it prescribes a minimum sentence of 7 years imprisonmentwhile dealing with heinous offences then we cannot wish away theword ‘minimum’ .

31. No doubt, as submitted by Mr. Luthra there appears to be agross mistake committed by the framers of the legislation. The legislationdoes not take into consideration the 4[th] category of offences. How andin what manner a juvenile who commits such offences should be dealtwith was something that the Legislature should have clearly spelt out inthe Act. There is an unfortunate gap. We cannot fill the gap by sayingthat these offences should be treated as heinous offences. Whereas onthe one hand there are some offences in this category which may ingeneral parlance be termed as heinous, there are many other offenceswhich cannot be called as heinous offences. It is not for this Court tolegislate. We may fill in the gaps but we cannot enact a legislation,especially when the Legislature itself has enacted one. We also have tokeep in mind the fact that the scheme of the Juvenile Justice (Care andProtection of Children) Act, 2015 is that children should be protected.Treating children as adults is an exception to the rule. It is also a wellsettled principle of statutory interpretation that normally an exceptionhas to be given a restricted meaning.

32. We may add that the High Courts of Bombay[9], Patna[10], andPunjab and Haryana[11], have taken a view that the category of ‘heinousoffences’ cannot include offences falling within the 4[th] category. Nocontrary view has been brought to our notice. We see no reason to takea different view.

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 dated18.09.2018

11 CRR 1615 of 2018 titled Bijender vs. State of Haryana and another, judgment dated 21[st] May, 2018.

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A33. It was urged by Mr. Luthra that while defining ‘heinousoffences’ the word ‘includes’ has been used which would mean that thedefinition is an inclusive definition and includes things not mentioned inthe definition. We are not impressed with this argument since thedefinitions of ‘petty offences’ and ‘serious offences’ also use the word‘includes’. In fact the word ‘includes’ is a surplusage. The wordB‘includes’ in the three definition clauses does not make any sense. Thereis nothing else to be included. The definition is complete in itself.

34. From the scheme of Section 14, 15 and 19 referred to aboveit is clear that the Legislature felt that before the juvenile is tried as anadult a very detailed study must be done and the procedure laid downChas to be followed. Even if a child commits a heinous crime, he is notautomatically to be tried as an adult. This also clearly indicates that themeaning of the words ‘heinous offence’ cannot be expanded by removingthe word ‘minimum’ from the definition.

35. Though we are of the view that the word ‘minimum’ cannotDbe treated as surplusage, yet we are duty bound to decide as to how thechildren who have committed an offence falling within the 4[th] categoryshould be dealt with. We are conscious of the views expressed by usabove that this Court cannot legislate. However, if we do not deal withthis issue there would be no guidance to the Juvenile Justice Boards toEdeal with children who have committed such offences which definitelyare serious, or may be more than serious offences, even if they are notheinous offences. Since two views are possible we would prefer totake a view which is in favour of children and, in our opinion, theLegislature should take the call in this matter, but till it does so, in exerciseof powers conferred under Article142 of the Constitution, we direct thatFfrom the date when the Act of 2015 came into force, all children whohave committed offences falling in the 4[th] category shall be dealt with inthe same manner as children who have committed ‘serious offences’.

36. In view of the above discussion we dispose of the appeal byanswering the question set out in the first part of the judgment in theGnegative and hold that an offence which does not provide a minimumsentence 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 4[th]category of offences viz., offence where the maximum sentence is morethan 7 years imprisonment, but no minimum sentence or minimumHsentence of less than 7 years is provided, shall be treated as ‘serious offences’ within the meaning of the Act and dealt with accordingly tillthe Parliament takes the call on the matter.

37. In passing we may note that in the impugned judgment thename of the Child in Conflict with Law, has been disclosed. This is notin accordance with the provisions of Section 74 of the Act of 2015, andvarious judgments of the courts. We direct the High Court to correctthe 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 theSecretary Law, Ministry of Law and Justice, Government of India,Secretary, Ministry of Women and Child Development, Government ofIndia and the Secretary, Home, Ministry of Home Affairs, and RegistrarGeneral, Delhi High Court, who shall ensure that the issue raised in thisjudgment is addressed by the Parliament as early as possible or by theExecutive by issuing an Ordinance. Our directions shall continue toremain in force only till such action is taken.

39. Pending application(s), if any, stand(s) disposed of.

Kalpana K. Tripathy

Appeal disposed of.

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