If the prayer of the third party is such that it has far reaching consequences that affect the larger public interest, rendering the effect on the criminal prosecution under question insignificant, then the right to participate in the criminal prosecution will be granted.
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)
Dicided on;August 22, 2013.
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 Others1
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,
1
(2000) 8 SCC 323
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 Bihar2
, 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
2
AIR 1966 SC 911
3
(1998) 7 SCC 177
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
Others4
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
4
(1992) 4 SCC 305
5
(1992) 4 SCC 653
1Page 11
(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 justify a 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.
1Page 14
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]
1Page 15
New Delhi,
August 22, 2013.
1
Print Page
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)
Dicided on;August 22, 2013.
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 Others1
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,
1
(2000) 8 SCC 323
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 Bihar2
, 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
2
AIR 1966 SC 911
3
(1998) 7 SCC 177
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
Others4
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
4
(1992) 4 SCC 305
5
(1992) 4 SCC 653
1Page 11
(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 justify a 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.
1Page 14
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]
1Page 15
New Delhi,
August 22, 2013.
1
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