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TMI Blog2020 (1) TMI 1650X X X X Extracts X X X X X X X X Extracts X X X X ..... bound to decide as to how the children who have committed an offence falling within the 4th category should be dealt with. The appeal disposed off 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, 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. Application disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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.... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een dealt with leniently. In one such matter Salil Bali v. Union of India and Anr. (2013) 7 SCC 705, 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 Ors. v. Raju through Member, Juvenile Justice Board and Anr. (2014) 8 SCC 390 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. 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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.P.C. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 twenty-one years and thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in-extenso but we may highlight a few of these offences. Some of these offences relate to abetment but they also include offences such as those Under Section 121A, 122 of Indian Penal Code, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced to a nullity by the draftsman's unskillfulness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, but their Lordships hold that nothing can justify it except necessity or the absolute intractability of the language used..... 25. In Justice G.P. Singh's treatise, "Principles of Statutory Interpretation' 14th Edn., Lexis Nexis, pp. 89-90, 983 (2016) the doctrine of surplusage as a limit on the traditional Rule of strict construction has been referred to. The main judgment on this point is the decision of the House of Lords in McMonagle v. Westminster City Council [1990] 2 A.C. 716. In that case the Defendant's premises contained a machine which on insertion of a coin revealed two naked women in a manifestly immoral manner. The Defendant was charged with using this premises as a sex establishment without any licence. His contention was that the Act (Local Government (Miscellaneous Provisions) Act, 1982) used the words 'which is not unlawful' and since he was conducting an unlawful activity he did not require a licence. It was in this context that the House of Lords held that the words 'which are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of Section 32-F can be added to or subtracted from, in order that the absurdity aforementioned and the discrimination between persons who are similarly situate be obviated. After discussing various Rules of interpretation the Court held that instead of striking out the classification as a whole it would delete the words 'of the fact that he has attained majority'. We may refer to para 43 which is relevant: 43. Given the fact that the object of the 1956 Amendment, which is an agrarian reform legislation, and is to give the tiller of the soil statutory title to land which such tiller cultivates; and, given the fact that the literal interpretation of Section 32-F(1)(a) would be contrary to justice and reason and would lead to great hardship qua persons who are similarly circumstanced; as also to the absurdity of land going back to an absentee landlord when he has lost the right of personal cultivation, in the teeth of the object of the 1956 Amendment as mentioned hereinabove, we delete the words ".. of the fact that he has attained majority..". Without these words, therefore, the landlord belonging to all three categories has to send an intimation to the tenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention of the Legislature. 30. We must also while interpreting an Act see what is the purpose of the Act. The purpose of the Act of 2015 is to ensure that children who come in conflict with law are dealt with separately and not like adults. After the unfortunate incident of rape on December 16, 2012 in Delhi, where one juvenile was involved, there was a call from certain Sections of the society that juveniles indulging in such heinous crimes should not be dealt with like children. This incident has also been referred to by the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime, he is not automatically to be tried as an adult. This also clearly indicates that the meaning of the words 'heinous offence' cannot be expanded by removing the word 'minimum' from the definition. 35. Though we are of the view that the word 'minimum' cannot be treated as surplusage, yet we are duty bound to decide as to how the children who have committed an offence falling within the 4th category should be dealt with. We are conscious of the views expressed by us above that this Court cannot legislate. However, if we do not deal with this issue there would be no guidance to the Juvenile Justice Boards to deal with children who have committed such offences which definitely are serious, or may be more than serious offences, even if they are not heinous offences. Since two views are possible we would prefer 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 Article 142 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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