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Juvenile Justice Act – Heinous offence – defined – An offence which does not provi

Shilpa Mittal vs. State of NCT of Delhi and Anr. Criminal appeal No. 34 of 2020 – January 9, 2020.

The Supreme Court bench comprising of Justice Deepak Gupta and Justice Aniruddha Bose has directed the High Court to correct the judgment rendered by the High Court and remove the name of the child in Conflict with the Law.

The Court held that the Court has no powers to change the existing law. It is only the Legislature which can change the laws and bring in new laws. The Court can only interpret. Therefore, the Court cannot interfere in the proceedings of the Legislature. The Court has directed the Legislature to bring in changes in the Juvenile Justice Act so that the 4th category of crimes which include counterfeiting of coins, homicide not amounting to murder, abetment to suicide etc., are categorized into either serious crimes or heinous crimes.

Issue: 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?

The background of the case is Juvenile ‘X’ has committed an offence under section 304 of the Indian Penal Code. The offence is punishable with a maximum punishment of imprisonment for life or up to 10 years and fine in the first part and imprisonment upto 10 years or fine, or both in the second part. No sentence is prescribed. The appellant’s brother died in the motor vehicle accident caused by the juvenile. The juvenile at the time of committing the offence is 16 years.

The Juvenile Board made an order dated 04.06.2016 stating that the accused should be tried as an adult. The appeal filed was also dismissed. Then the mother of the juvenile approached the High Court of Delhi, and the court held that no minimum sentence is prescribed for the offence in the present case and it does not come in the ambit of sec 2(33) of the Juvenile Justice Act. This order is under challenge in this appeal.

The petitioner has approached the High Court of Delhi and the Court held that the offence is not under the ambit of 2(33) of the Juvenile Justice Act. According to the law, a juvenile is one who has not completed 18 years of age. Under section 2(33) heinous crimes are defined and that does not include homicide not amounting to murder. The degree of the punishment is decided by considering both the degree of the offence and the age of the juvenile.

The learned counsel for the appellant Mr. Luthra contended that when the definition of petty, serious and heinous crimes are literally read, another category of offences in not covered by the Act. It is submitted that petty offences are those which are punishable with 3 years, serious offences are those with a maximum punishment of 7 years and heinous are those whose minimum sentence is more than 7 years. The 4th category includes those offences relating to abetment, homicide not amounting to murder, counterfeiting of coins, abetment to suicide of child etc., The legislature has not categorised these offences but it should have been added in any of the 3 categories. Therefore, there is a gross mistake by the framers of the constitution. But then, by applying the Doctrine of Surplusage, if the word ‘minimum’ is removed then everything will fall in place. As the Court is not the body to make changes, it cannot be done. His contention is to expand the meaning of heinous crimes.

The Court held that; ” an offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence. 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.” The court finally took in view of Article 142 of the Constitution, and directed the legislation to take a call in this matter and deal all the offences after the commencement of the Act of 2015 in the same manner as dealt with serious offences and also that the offence which does not provide a minimum punishment of 7 years cannot be treated as an heinous offence.

–  Vydurya Selvi Baskaran

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