New Delhi: A Supreme Court bench of Justices Deepak Gupta and Aniruddha Bose on Thursday held that offences which carried the maximum of more than seven years imprisonment, but with no minimum sentence of fewer than seven years should be treated as ‘serious’ and not as ‘heinous’ offences.In the instant case, juvenile ‘X’ was accused of committing an offence punishable under Section 304 of the Indian Penal Code, which is punishable with a maximum punishment of imprisonment for life up to ten years and fine in the first part, and imprisonment up to ten years or fine, or both in the second part. No minimum sentence is prescribed under this provision.The first part of Section 304 deals with punishment for culpable homicide not amounting to murder, if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death.The second part of Section 304 seeks to impose imprisonment for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause it, or to cause such bodily injury as is likely to cause death.The present caseThe case before the court involved a road accident resulting from rash driving by the juvenile accused, and therefore, the second part of Section 304 was attracted. The juvenile, at the time of the accident, was above 16 years of age but below 18 years. The Juvenile Justice Board, on April 6, 2016, held that juvenile ‘X’ had committed a heinous offence, and, therefore, should be tried as an adult. The appeal filed to the Children’s Court was also dismissed on February 11, 2019. Thereafter, juvenile ‘X’, through his mother, approached the Delhi high court, which held that since no minimum sentence is prescribed for the offence in question, it did not fall within the ambit of Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015.Section 2(33) defines “heinous offences” as those for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more. Section 2(35) defines “juvenile” as a child below the age of 18 years.Section 2(45) defines “petty offences” as those for which maximum punishment under the IPC or any other law in force is imprisonment up to three years. Section 2(54) defines “serious offences” as those for which punishment under the IPC, or any other law in force, is imprisonment between three to seven years.Also Read: Rehabilitation Not Retribution Should be the Focus of Juvenile JusticeSection 15 of the 2015 Act provides that if the child offender has committed a heinous offence, the Juvenile Justice Board shall conduct a preliminary assessment with regard to the mental and physical capacity of the child to commit such offence, the ability of the child to understand the consequence of the offence and the circumstances in which it was allegedly committed.Section 19 of the Act empowers the Children’s Court to reassess the preliminary assessment of the Board. Under sub-section (2) of Section 19, a child must be kept in a place of safety and cannot be sent to jail till the child attains the age of 21 years, even if such a child has to be tried as an adult.However, the Act of 2015 failed to consider the fourth category of offences which do not fall under petty, serious or heinous categories. These are those where the minimum sentence is less than seven years, or there is no minimum sentence prescribed, but the maximum sentence is more than seven years. Offences such as abetment, counterfeiting of currency, culpable homicide not amounting to murder (as in the present case), abetment to suicide of child or innocent person and many others.A juvenile home in Mumbai.‘Can add or subtract words only when legislature’s intention is clear’The bench, in the judgment authored by Justice Deepak Gupta, held that it can add or subtract words from a statute only when the intention of the legislature is clear. “If the intention of the Legislature is clear then the Court can get over the inartistic or clumsy wording of the statute. However, when the wording of the statute is clear but the intention of the Legislature is unclear, the Court cannot add or subtract words from the statute to give it a meaning which the Court feels would fit into the scheme of things,” the bench observed in response to the plea that the fourth category could be implied under the “heinous” category of offences.The bench held:“To say that the intention of the Legislature was to include all offences having a punishment of more than seven 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 seven years imprisonment while dealing with heinous offences, then we cannot wish away the word ‘minimum.”Relying on the scheme of the 2015 Act, which is to ‘protect children’, the bench held that 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,” the bench reasoned.While conceding that the court cannot legislate, the bench, however, reasoned that if it did not deal with this issue, there would be no guidance to the Boards to deal with children who have committed offences under the fourth category. “Since two views are possible, we would prefer to take a view which is in favour of children,” the court said. The bench then used its powers under Article 142 of the Constitution to direct that from the date when the 2015 Act came into force, all children who have committed offences falling in the fourth category shall be dealt with in the same manner as children who have committed serious offences.The bench was critical of the Delhi high court, which had disclosed the name of the Child in Conflict with Law in this case and directed it to correct its judgment, and remove the name in accordance with the 2015 Act. The bench also nudged parliament to correct the error in the Act through an appropriate amendment.
