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