Section 2(33), The Juvenile Justice (Care and Protection of Children) Act, 2015: “heinous offences” includes the offences for which the minimum punishment under The Indian Penal Code, 1860 or any other law for the time being in force is imprisonment for 7 years or more;
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Learned Senior Counsel, Siddharth Luthra submitted 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. 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. These offences include offences such as those under Section 121A, 122 of IPC; offences relating to counterfeiting of currency, homicide not amounting to murder and many others.
“The conundrum we face is that how do we decipher the intention of the Legislature. It is not necessary that the intention of the Legislature is the one what the Judge feels it should be. When 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. We are not solving a jigsaw puzzle where we have to put all the pieces in place. It cannot be said with certainty that the Legislature intended to include this 4th category of offences in the category of ‘heinous offences’.
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’ .
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.
Legislature should take the call in this matter, but till it does so, in exercise of powers conferred under Article 142, 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 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 dealt with in the same manner as children who have committed ‘serious offences’ within the meaning of the Act and dealt with accordingly… till the Parliament takes the call on the matter. Our directions shall continue to remain in force only till such action is taken.”
– Hon’ble Justice Deepak Gupta, Shilpa Mittal v. State of NCT of Delhi, [Criminal Appeal No. 34 of 2020].
My Lord, Jigsaw Puzzle?
“The difference between a ‘game’ and a ‘puzzle’ is brought out by three distinct features, viz., outcome, clue-chance and skill. In a puzzle, outcome is pre-determined and fixed. A ‘jigsaw puzzle’ is a contrivance for testing ingenuity. There is a set of varied, irregularly shaped pieces, which when properly assembled form a map or picture. This is an example to demonstrate that in a puzzle the outcome is fixed or pre-determined. It is not so in ‘scrabble’. It is a game. A person solving a puzzle, unlike games, does not aim at wining by scoring more points but aims at arriving at the solution by finding the correct answer or by putting it together properly, and winning or losing can only come by way of time taken in solving the puzzle.”
– Hon’ble Justice S.H. Kapadia, Pleasantime Products, (2009) 1 SCC 265.
Thus, the win or loss, as concerning The JJ Act, can only come by way of Parliament taking a call, as directed, expeditiously.