The Supreme Court, in one of its recent judgement, has observed that in effect under Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015, an offence prescribing a max. sentence of more than 07 years imprisonment but not providing any min sentence, or providing a min sentence of less than 07 years, cannot be considered to be a 'heinous offence'. 

The Court cited Article 142 of the Constitution of India and held that the category of offences viz., offence where the max sentence is more than 07 years imprisonment, but no min sentence or min sentence of less than 07 years is provided, shall be treated as 'serious offences' within the meaning of the Act.

CASE BACKGROUND

A juvenile who at the relevant time was aged above 16 but below 18 years, had been alleged to have committed an offence punishable under Section 304 IPC which offence is punishable with a max punishment of imprisonment for life or up to 10 years and fine in the first part and imprisonment up to 10 years or a fine, or both in the second part.

The present appeal before the Supreme Court is against one Delhi High Court order in which it was held that since no min sentence is prescribed for the offence in question, the said offence didn't fall within the ambit of Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The appeal had been filed by the sister of the deceased who had approached the Apex Court assailing this judgment of the Delhi High Court.

Mercedes Benz driven by the 'juvenile' ran over the deceased causing his demise in 2016.

The Top Court stated in regard to the Act:

As per the Act, 'Serious offences' means, offences for which punishment under any law is imprisonment between 3-­7 years. 'Heinous offences' have been defined to mean offences for which the min punishment under any law is imprisonment for 7 years or more. Both the petty offences and serious offences are to be disposed of by the Board, by following the procedure for trial in summons cases under the Code of Criminal Procedure. In cases of Heinous offences alleged to be committed by a child above the age of sixteen years as on the date of commission of an offence, Section 15 provides that the Juvenile Justice Board can conduct a preliminary assessment with regard to the mental and physical capacity of such child to commit such offence, the ability of the child to understand the consequence of the offence and the circumstances in which the said offence was allegedly committed. If the board finds that there is a need for a trial of the child as an adult, he will be tried in a Children's Court.

Before the bench, Senior Advocate Siddharth Luthra pointed out that there is a 4th Category of offences where the min sentence is less than 7 years, or there is no min sentence prescribed but the max sentence is more than 7 years. He opined that, by applying the doctrine of surplusage, 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'.

On the arguement presented above, the Court commented:

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 maybe 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 be dealt with in the same manner as children who have committed 'serious offences'.

The Court then disposed of the appeal and commented at the conclusion:

An offence which does not provide a minimum sentence of 7 years cannot be treated to be a 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.

Along with the judgement pronounced, the Court also asked the Law Ministry and the Home Ministry to make sure that the issue in regard to the 4th Category of offences is addressed by the Parliament as early as possible or by the Executive by issuing an Ordinance.

The bench also noted that the High Court in the impugned judgment had disclosed the name of the 'Juvenile' which is against the provisions of Section 74 of the Act of 2015, and various judgments of the Courts thus directing the High Court to remove the name of the Child in Conflict with Law.

The judgement was delivered by Justice Deepak Gupta and Justice Aniruddha Bose on 09-01-2020.

Read Judgement Here:

 

Share this Document :

Picture Source :