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TMI Blog2014 (3) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... ju, was below 18 years of age on the date of commission of the crime. Accordingly, in compliance with the provisions of the Juvenile Justice Act, 2000 ( as amended and hereinafter referred to as 'the Act') his case was referred for inquiry to the Juvenile Justice Board. The other accused were tried in a regular sessions court and have been found guilty, inter alia, of the offences under Section 376 (2)(g) and Section 302 of the Indian Penal Code, 1860 (for short "the Penal Code"). They have been sentenced to death by the learned trial court. Their appeal against the aforesaid conviction and the sentence imposed has since been dismissed and the death penalty has been confirmed by the High Court of Delhi. 3. Before the Juvenile Justice Board to whom the case of Raju was referred for inquiry, the petitioners had filed applications for their impleadment to enable them to 'prosecute' the juvenile alongside the public prosecutor. The petitioners also claimed that, on a proper interpretation of the Act, the juvenile was not entitled to the benefits under the Act but was liable to be tried under the penal law of the land in a regular criminal court alongwith the other accused. 4. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the prayer of the petitioners for impleadment in the proceeding against the delinquent and seeking participation therein. In the aforesaid circumstances, on 19.02.2013, Special Leave Petition (Crl.) No.1953 of 2013 was lodged before this Court challenging the aforesaid order of the High Court of Delhi. 8. The maintainability of the Special Leave Petition was seriously disputed by the respondent No.1 i.e. juvenile Raju as well as the Union of India. In support, it was, inter alia, contended that the administration of criminal justice in India does not envisage the role of a third party/stranger. Primarily, it is the State which is entrusted with the duty of prosecution in the discharge of which a limited role so far as the complainant/first informant of an offence is concerned and that too in specified situations, is contemplated by the provisions of the Code of Criminal Procedure. The preliminary objection of the respondents to the maintainability of the Special Leave Petition was heard at length by this Court and by order dated 22.08.2013 it was held as follows: "All that the petitioners seek is an authoritative pronouncement of the true purport and effect of the different p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rl. Misc. Petition No.23226/2013 (by Dr. Madhuker Sharma) for interventions have been filed, all of which have been allowed. The matter was elaborately heard on different dates by this Court in the course of which written notes and arguments as well as documents relevant to the issues have been placed before the Court by the contesting parties. In view of the elaborate consideration on the basis of the arguments advanced and the materials placed we deem it proper to grant leave to appeal and to decide the case on merits upon full consideration of the rival contentions. Writ Petition (Crl.) No.204 of 2013 10. This writ petition has been filed by the parents of the victim of the incident that had occurred on 16.12.2012 seeking the following reliefs : "(i) a Direction striking down as unconstitutional and void the Juvenile Justice (Care and Protection of Children) Act 2000 (Act No.56 of 2000) to the extent it puts a blanket ban on the power of the criminal courts to try a juvenile offender for offences committed under the Indian Penal Code, 1860; and (ii) a Direction that the Respondent No.2 be tried forthwith by the competent criminal court for the offences against the daughter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... event the Act will offend Article 14 of the Constitution as all offenders below the age of 18 years irrespective of the degree/level of mental maturity and irrespective of the gravity of the crime committed would be treated at par. Such a blanket treatment of all offenders below the age of 18 committing any offence, regardless of the seriousness and depravity, is wholly impermissible under our constitutional scheme. The non-obstante provisions contained in Section 1(4) of the Act as well as the bar imposed by Section 7 on the jurisdiction of the criminal court to try juvenile offenders cannot apply to serious and heinous crime committed by juveniles who have reached the requisite degree of mental maturity, if the Act is to maintain its constitutionality. Reliance is also placed on Essa @ Anjum Abdul Razak Memon vs. State of Maharashtra[(2013) 3 SCALE 1] to contend that the purport and effect of Section 1(4) of the Act must be understood in a limited manner. 14. By referring to the provisions of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (Beijing Rules); the Convention of the Rights of the Child, 1990 (CRC) and the United Nations Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The maximum power of 'punishment', on proof of guilt, is to send the juvenile to a special home for three years. The entire scheme under the Act being substantially different from what is provided by the Code of Criminal Procedure for investigation of offences and for trial and punishment of offenders, it is submitted that the Act offends a core constitutional value namely, the existence of a criminal justice system. The proceedings against the juvenile Raju held by the JJ Board are, therefore, null and void and the said juvenile is liable to be tried by a competent criminal court in accordance with the procedure prescribed. In this regard, it is also submitted that the concept of double jeopardy under Article 20(3) of the Constitution and Section 300 of Penal Code will have no application inasmuch as the proceedings before the JJ Board did/does not amount to a trial. Contentions somewhat similar to what has been advanced by Dr. Swamy to explain the degree of constitutional flexibility that the Act would enjoy has also been urged by Dr. Hingorani who however goes a step forward to contend that the decision in Salil Bali vs. Union of India[(2013) 4 SCC 705] will not be an inhibit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ork placed on record has tried to persuade the Court to take the view that :- (1) Countries like U.K. Canada and USA have departed from the obligations under the UN Convention and are in breach of their international commitments. The incidence of crime by juveniles in those countries is very high which is not so in India. It is submitted that, of late, a re-thinking on the issue is discernible to demonstrate which reliance is placed on some recent pronouncements of the US Supreme Court, details of which will be noticed hereinafter. (2) That the level of mental/intellectual maturity in any given case cannot be determined with any degree of accuracy and precision and the results vary from case to case and from individual to individual. A system which provides for an option to refer a juvenile to a regular court, therefore, ought not to be accepted as no objective basis for such reference exists. 18. Shri Amod Kanth, representing Prayas Juveniles Aid Centre and learned counsel for the intervener Centre for Child and the Law, National Law School of India University and others have supported the stand taken by the learned Additional Solicitor General. Elaborate written submissions ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed manner; in any case, the petitioners in the present proceeding were not parties to the decision rendered in Salil Bali (supra). Therefore, we deem it proper to proceed, not to determine the correctness of the decision in Salil Bali (supra) but to consider the arguments raised on the point of law arising. While doing so we shall certainly keep in mind the course of action that judicial discipline would require us to adopt, if need be. Though expressed in a somewhat different context we may remind ourselves of the observations of the Constitution Bench of this Court in Natural Resources Allocation, In Re, Special Reference No.1 of 2012[(2012) 10 SCC 1] extracted below:- "48.2. The second limitation, a self-imposed rule of judicial discipline, was that overruling the opinion of the Court on a legal issue does not constitute sitting in appeal, but is done only in exceptional circumstances, such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and capable of causing public mischief. For this proposition, the Court relied upon the judgment in Bengal Immunity case (AIR 1955 SC 661) wherein it was hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbly of the United Nations in 1985. Rule 2.2(a) defines a juvenile as a child or young person who, under the respective legal system, may be dealt with for an offence differently than an adult. Rule 4.1 set out below mandates Member States to refrain from fixing a minimum age of criminal responsibility that is too low, bearing in mind the facts of emotional, mental and intellectual maturity. "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, bearing in mind the facts of emotional, mental and intellectual maturity." 24. The Beijing Rules take into account penological objectives in addition to rehabilitation of the offender. In Rule 17.1, the guiding principles of adjudicating matters involving juveniles are enlisted: a) The reaction shall always be proportional to not only the circumstances and the gravity of the offence, but also to the circumstances and needs of the juvenile as well as to the needs of society; b) Restrictions on personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion so far as a particular State party, in respect of whom review of the progress is made, is concerned. Thereafter, the Committee is required to meet every 5 years. In January, 2000, the Committee considered the initial report of India submitted on 19.03.1997 and adopted certain "concluding observations" the relevant part of which are extracted hereinbelow: "79. The Committee is concerned over the administration of juvenile justice in India and its incompatibility with articles 37, 40 and 39 of the Convention and other relevant international standards. The Committee is also concerned at the very young age of criminal responsibility - 7 years - and the possibility of trying boys between 16 and 18 years of age as adults. Noting that the death penalty is de facto not applied to persons under 18, the Committee is very concerned that de jure, this possibility exists. The Committee is further concerned at the overcrowded and unsanitary conditions of detention of children, including detention with adults; lack of application and enforcement of existing juvenile justice legislation; lack of training for professionals, including the judiciary, lawyers and law enforcement officers, in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween "concluding observations" and "general comments" is highlighted to draw attention to the fact that in the meeting of the Committee held in Geneva in the year 2007 certain general observations with regard to MCAR of 18 years were made which would be applicable to State parties other than India as the law had already been amended in our country pursuant to the concluding observations made by the Committee in the year 2000 specifically qua India. The views of the Committee in respect of other member States may be usefully taken note at this stage by extracting the recommendations in the nature of general comments in paras 36, 37 and 38 of the Report: "36. The Committee also wishes to draw the attention of States parties to the upper age-limit for the application of the rules of juvenile justice. These special rules - in terms both of special procedural rules and of rules for diversion and special measures - should apply, starting at the MACR set in the country, for all children who, at the time of their alleged commission of an offence (or act punishable under the criminal law), have not yet reached the age of 18 years. "37. The Committee wishes to remind States parties that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or his adoption under Section 41(5) of the Act. On the said materials while the petitioners argue that the lack of uniformity of mental growth upto the relevant age i.e. 18 years would justify individualized decisions rather than treating adolescent as a class the opposite view advanced is that between the lower and the upper age, the age of 18 provides a good mid point of focus which may result in some amount of over-classification but that would be inevitable in any situation and a mid point reduces the chances of over-classification to the minimum. These are the varying perceptions alluded to earlier. 30. It may be advantageous to now take note of the Juvenile Justice System working in other jurisdictions. A - CANADA In Canada, the Youth Criminal Justice Act, 2002 provides for criminal justice to young persons aged between 12 to 18 years. The Preamble expressly states that the Act was enacted pursuant to Canada's obligations under the CRC. The Preamble also declares that "Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Youth Justice Court with equivalent years of imprisonment as in the case of an adult (Sections 38 & 39). In its concluding remarks on Canada (dt. 05.10.2012), the Committee on Rights of the Child expressed concern that the State had taken no steps to raise the MACR and continued to try children under 18 as adults (in relation to the circumstances or gravity of the offence). Besides recommending the increase in MACR, the Committee also recommended that the State i.e. Canada to ensure that no person under 18 is tried as an adult irrespective of the circumstances or the gravity of the offence.[ Committee on the Rights of the Child, 61st Session, 05 October 2012,] B - UNITED KINGDOM 31. Children less than 10 years of age are irrefutably considered as incapable of committing an offence. Children between 10-18 years are capable of committing offences, but are usually tried in the Youth Court, unless they have committed serious offences (such as rape or homicide) or have been charged with adults (co-defendants), in which case they are tried in the Crown Court. When jointly charged with adult co-defendants, though the charges must be framed in the Magistrate's court with the other def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary criminal courts. There are three legal mechanisms that permit the juvenile to be tried as an adult in the States: i. Judicial Waiver: The juvenile judge has the discretion to waive jurisdiction and transfer the case to the adult criminal courts. Presently, all states except Nebraska, New York, and New Mexico, provide for judicial waiver. This discretion is entirely left to the Judge in some States, whereas others provide some criteria for its exercise. In Breed v. Jones (1975), the Court held that adjudicating a juvenile first in a juvenile court, which subsequently waived jurisdiction, followed by adjudication by an adult court, violated the Fifth Amendment protection against double jeopardy.; ii. Prosecutorial Discretion : Where the prosecutor has the discretion to decide whether to try the offender in a juvenile or adult criminal court. This is most common in cases of repeat offenders; iii. Statutory exclusion: Where State legislation provides that the youth be tried as an adult, based on factors such as the gravity of the offence, prior criminal record, age of the youth etc. iv. Blended Sentencing: A juvenile court may sentence a convicted juvenile offender to both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutors'. Sentences of death and life imprisonment cannot be awarded to juveniles. For juveniles aged between 12-16 years, 1/3rd of the maximum punishment to adults can be awarded. For juveniles aged between 16-18 years, ½ of the maximum punishment to adults can be awarded. G - BHUTAN 36. The minimum age of criminal responsibility is 10 years. Although not expressly defined, a juvenile is understood as a person below 18 years of age. Bhutan does not possess a special legislation dealing with juvenile offenders; there are no specialized Juvenile courts either. Section 213 of the Civil and Criminal Procedure Code has certain provisions regulating the trial of a juvenile offender. Persons below 18 years can be awarded half of the adult sentence. H - NEPAL 37. The minimum age of criminal responsibility is 10 years. A child is a person below 16 years. Youth between 16-18 years are charged and tried as adults. 38. The next significant aspect of the case that would require to be highlighted is the differences in the juvenile justice system and the criminal justice system working in India. This would have relevance to the arguments made in W.P. No.204 of 2013. It may be conveni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-cognizable offence may be arrested only with a warrant from a Magistrate (S.41(2)). JJ System: The JJ Rules provide that a juvenile in conflict with the law need not be apprehended except in serious offences entailing adult punishment of over 7 years (Rule 11(7)). As soon as a juvenile in conflict with the law is apprehended, the police must inform the designated Child/Juvenile Welfare Officer, the parents/guardian of the juvenile, and the concerned Probation Officer (for the purpose of the social background report) (S.13 & R.11(1)). The juvenile so apprehended is placed in the charge of the Welfare Officer. It is the Welfare Officer's duty to produce the juvenile before the Board within 24 hours (S. 10 & Rule 11(2)). In no case can the police send the juvenile to lock up or jail, or delay the transfer of his charge to the Welfare Officer (proviso to S.10 & R.11(3)). Bail Criminal Justice System: Chapter XXXIII of the CrPC provides for bails and bonds. Bail may be granted in cases of bailable and non-bailable offences in accordance with Ss. 436 and 437 of the CrPC. Bail in non- bailable offences may be refused if there are reasonable grounds for believing that the person is gui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement; the Board must encourage him to speak without fear not only of the circumstances of the alleged offence but also his home and social surroundings. Since the ultimate object of the Act is the rehabilitation of the juvenile, the Board is not merely concerned with the allegations of the crime but also the underlying social causes for the same in order to effectively deal with such causes. The Board may dispense with the attendance of the juvenile during the inquiry, if thought fit (S. 47). Before the Board concludes on the juvenile's involvement, it must consider the social investigation report prepared by the Welfare Officer (R.15(2)). The inquiry must not prolong beyond four months unless the Board extends the period for special reasons due to the circumstances of the case. In all non-serious crimes, delay of more than 6 months will terminate the trial (R.13(7)). Sentencing: The Board is empowered to pass one of the seven dispositional orders u/s 15 of the JJ Act: advice/admonition, group counseling, community service, payment of fine, release on probation of good conduct and placing the juvenile under the care of parent or guardian or a suitable institution, or sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er once s/he has served the sentence. Since the JJ system seeks to reform and rehabilitate the juvenile, it establishes post- trial avenues for the juvenile to make an honest living. 39. Having laid bare all that is necessary for a purposive adjudication of the issues that have been raised by the rival camps we may now proceed to examine the same. The Act, as manifestly clear from the Statement of Objects and Reasons, has been enacted to give full and complete effect to the country's international obligations arising from India being a signatory to the three separate conventions delineated hereinbefore, namely, the Beijing Rules, the UN Convention and the Havana Rules. Notwithstanding the avowed object of the Act and other such enactments to further the country's international commitments, all of such laws must necessarily have to conform to the requirements of a valid legislation judged in the context of the relevant constitutional provisions and the judicial verdicts rendered from time to time. Also, that the Act is a beneficial piece of legislation and must therefore receive its due interpretation as a legislation belonging to the said category has been laid down by a Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have committed serious crimes do not come under the purview of the Act. Such juveniles are liable to be dealt with under the penal law of the country and by the regular hierarchy of courts under the criminal justice system administered in India. This is what was intended by the legislature; a plain reading, though, shows an unintended omission which must be made up or furnished by the Court. It is further urged that if the Act is not read in the above manner the fall out would render the same in breach of Article 14 as inasmuch as in that event there would be a blanket/flat categorisation of all juveniles, regardless of their mental and intellectual maturity, committing any offence, regardless of its seriousness, in one homogenous block in spite of their striking dissimilarities. This, Dr. Swamy contends, is a classification beyond what would be permissible under Article 14 in as much as the result of such classification does not further the targeted object i.e. to confer the benefits of the Act to persons below 18 who are not criminally responsible in view of the low level of mental maturity reached or achieved. This, in substance, is also the argument of Dr. Hingorani, who, in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the court's duty to undertake such exercise, but it is beyond its jurisdiction to do so." 43. In the present case there is no difficulty in understanding the clear and unambiguous meaning of the different provisions of the Act. There is no ambiguity, muchless any uncertainty, in the language used to convey what the legislature had intended. All persons below the age of 18 are put in one class/group by the Act to provide a separate scheme of investigation, trial and punishment for offences committed by them. A class of persons is sought to be created who are treated differently. This is being done to further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hardly be of any consequence so far as our country is concerned. Contrary international opinion, thinking or practice, even if assumed, does not dictate the legislation of a sovereign nation. If the legislature has adopted the age of 18 as the dividing line between juveniles and adults and such a decision is constitutionally permissible the enquiry by the Courts must come to an end. Even otherwise there is a considerable body of world opinion that all under 18 persons ought to be treated as juveniles and separate treatment ought to be meted out to them so far as offences committed by such persons are concerned. The avowed object is to ensure their rehabilitation in society and to enable the young offenders to become useful members of the society in later years. India has accepted the above position and legislative wisdom has led to the enactment of the JJ Act in its present form. If the Act has treated all under 18 as a separate category for the purposes of differential treatment so far as the commission of offences are concerned, we do not see how the contentions advanced by the petitioners to the contrary on the strength of the thinking and practices in other jurisdictions can ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular trial can and does arise. 48. Before parting, we would like to observe that elaborate statistics have been laid before us to show the extent of serious crimes committed by juveniles and the increase in the rate of such crimes, of late. We refuse to be tempted to enter into the said arena which is primarily for the legislature to consider. Courts must take care not to express opinions on the sufficiency or adequacy of such figures and should confine its scrutiny to the legality and not the necessity of the law to be made or continued. We would be justified to recall the observations of Justice Krishna Iyer in Murthy March Works (supra) as the present issues seem to be adequately taken care of by the same: "13. Right at the threshold we must warn ourselves of the limitations of judicial power in this jurisdiction. Mr Justice Stone of the Supreme Court of the United States has delineated these limitations in United States v. Butler (1936) 297 US 1 thus: "The power of Courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that Courts are concerned only with the power to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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