Holding

An offence that does not prescribe a minimum imprisonment of seven years cannot be classified as a ‘heinous offence’ under the Juvenile Justice Act, and such fourth‑category offences must be treated as ‘serious offences’ until the legislature amends the statute.

Summary

A juvenile aged between 16 and 18 was alleged to have committed homicide under IPC section 304, an offence with a maximum punishment of life imprisonment but no prescribed minimum sentence. The Juvenile Justice Board classified the offence as "heinous" and ordered the juvenile to be tried as an adult, a decision later set aside by the Delhi High Court on the ground that the offence did not meet the statutory definition of a heinous offence. The Supreme Court examined whether the term "heinous offence" under Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015 requires a minimum imprisonment of seven years and whether the definition could be expanded by omitting the word "minimum". The Court held that the definition is clear and cannot be altered; offences lacking a minimum seven‑year term are not heinous. Recognising a legislative gap for offences whose maximum exceeds seven years but have no minimum, the Court, exercising its power under Article 142, directed that such "fourth‑category" offences be treated as "serious offences" until Parliament amends the law. It also ordered the removal of the child’s name from the High Court judgment and issued directions to the relevant ministries.

Issues considered

Whether an offence that does not prescribe a minimum imprisonment of seven years but has a maximum sentence exceeding seven years qualifies as a ‘heinous offence’ under Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015.
Whether the court may expand the statutory definition of ‘heinous offence’ by removing the word ‘minimum’.
How offences falling in the so‑called ‘fourth category’ (maximum >7 years, no minimum or minimum <7 years) should be dealt with under the Act.
Whether the disclosure of the name of a child in conflict with law violates Section 74 of the Act.

Legislation cited

Indian Penal Code, 1860s. 304
Juvenile Justice (Care and Protection of Children) Act, 2015s. 14, s. 15, s. 19, s. 21, s. 2(12), s. 2(13), s. 2(33), s. 2(35), s. 2(45), s. 2(54), s. 74

Subjects

juvenile justiceheinous offencestatutory interpretationlegislative gapArticle 142child in conflict with lawminimum sentenceserious offenceCriminal Procedure CodeIPC 304

Judgment

478 [2020]
SUPREME COURT 2 S.C.R. 478
REPORTS [2020] 2 S.C.R.

A SHILPA MITTAL
v.
STATE OF NCT OF DELHI & ANR.
(Criminal Appeal No. 34 of 2020)
B JANUARY 09, 2020
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Juvenile Justice (Care and Protection of Children) Act, 2015:
ss. 2 (33) and 15 – Commission of offence u/s. 304 IPC – By
C a juvenile above 16 years and below 18 years of age – Juvenile
Justice Board held that the juvenile having committed a heinous
offence has to be tried as an adult – High Court held that since no
minimum sentence is prescribed for the offence in question, the
offence did not fall within the ambit of s. 2(33) and hence was not
a heinous offence – Appeal to Supreme Court – Held: An offence
D
which does not provide a minimum sentence of 7 years cannot be
treated to be a heinous offence – Meaning of the words ‘heinous
offence’ cannot be expanded by removing the word ‘minimum’ from
the definition – However, the Act does not deal with the 4th category
of offences (viz. Offence where maximum sentence is more than 7
E years imprisonment, but no minimum sentence of less than 7 years
is provided) – There is a gap in the legislation – The court cannot
fill the gap by saying that these offences should be treated as heinous
offences – The legislature should take a call in this matter – However,
till the Legislature takes the call, the court in exercise of power u/
Art. 142 of the Constitution directs that from the date the Act came
F
into force, all the 4th category offences shall be treated as ‘serious
offence’.
Interpretation of Statutes:
Correction of errors in legislation – Held: If the intention of
G the legislature is clear from the objects and reasons of the statute,
the court can correct errors in the legislation and may write down
or omit/delete/add words to serve the purpose of legislation – But
when intention of legislature is not clear, the Court cannot add or
subtract words from the statute.

H
478
SHILPA MITTAL v. STATE OF NCT OF DELHI & ANR. 479

Disposing of the appeal, the Court A
HELD : 1. A bare reading of Section 2(12), 2(13) and 2(35)
of Juvenile Justice (Care and Protection of Children) Act, 2015
clearly shows that a child or a juvenile is a person who has not
completed 18 years of age, and a child in conflict with law is a
child/juvenile who commits an offence when that child/juvenile B
has not completed 18 years of age. ‘Petty offences’ have been
defined under Section 2(45) to mean offences for which the
maximum punishment provided under any law including the IPC,
is imprisonment up to 3 years. ‘Serious offences’ means, offences
for which punishment under any law is imprisonment between 3-
7 years. ‘Heinous offences’ have been defined to mean offences C
for which the minimum punishment under any law is imprisonment
for 7 years or more. This was a departure from the previous
legislation on the subject where the offences had not been
categorised as heinous or serious. Section 14 of the Act of 2015
lays down the procedure to be followed by the Juvenile Justice D
Board while conducting an enquiry regarding a child in conflict
with law under these different categories. [Paras 13 and 14][488E-
H]
2. The inquiry for serious offences has to be disposed of by
following the procedure for trial in summons cases under Cr.PC. E
As far as heinous offences are concerned if the child is below 16
years then the procedure prescribed for serious offences is to be
followed; but if the child is above 16 years then assessment in
terms of Section 15 has to be made. The above categorisation
has been done with a purpose which is reflected in Section 15 of
the Act of 2015. [Paras 15 and 16][489 F-G] F

3. Section 15 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 such child to commit such offence, the ability
of the child to understand the consequence of the offence and G
the circumstances in which the said offence was allegedly
committed. The Board is entitled to take the help of experienced
psychologists, psychosocial workers or other experts in the field.
The explanation makes it clear that the preliminary assessment
is not to go into the merits of the trial or the allegations against H
480 SUPREME COURT REPORTS [2020] 2 S.C.R.

A the child. The inquiry is conducted only to assess the capacity of
the child to commit and understand the consequence of the
offence. If the Board is satisfied that the matter can be disposed
of by the Board, then the Board shall follow the procedure
prescribed in summons cases under the Cr.PC. Section 19 of the
Act of 2015 empowers the Children’s Court to re-assess the
B
preliminary assessment of the Board under Section 15. [Paras
16 and 17][490E-H]
4. The Children’s Court constituted under the Act of 2015
has to determine whether there is actually any need for trial of
the child as an adult under the provisions of Cr.PC and pass
C appropriate orders in this regard. The Children’s Court should
also take into consideration the special needs of the child, tenets
of fair trial and maintaining child-friendly atmosphere. The Court
can also hold that there is no need to try the child as an adult.
Even if the Children’s Court holds that the child has to be tried
D as an adult, it must ensure that the final order includes an
individual care plan for rehabilitation of the child as specified in
Sub-section (2) of Section 19. Furthermore, under Sub-section(3)
such 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. It is also provided that though the
E child may be tried as an adult, reformative services, educational
services, skill development, alternative therapy, counselling,
behaviour modification, and psychiatric support is provided to
the child during the period the child is kept in the place of safety.
Section 21 of the Act of 2015 clearly lays down that no child in
F conflict with law shall be sentenced to death or life imprisonment
without the possibility of release whether tried under the Act or
under the IPC, or any other law. [Paras 18 and 19][491H; 492A-
D]
5.1 It is true that in a given circumstance, this Court can
G even add or subtract words from a statute. However, this can be
done only when the intention of the Legislature is clear. It is not
necessary that the intention of the Legislature is the one what
the judge feels it should be. 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
H
SHILPA MITTAL v. STATE OF NCT OF DELHI & ANR. 481

but the intention of the Legislature is unclear, the Court cannot A
add or subtract words from the statute to give it a meaning which
the Court feels would fit into the scheme of things. [Para 28][490D-
E]
5.2 There can be no manner of doubt that if the intention of
the Legislature is absolutely clear from the objects and reasons B
of the Act then the Court can correct errors made by the person
who drafted the legislation and may write down or omit/delete/
add words to serve the purpose of the legislation and ensure that
the legislation is given a meaning which was intended to by the
Legislature. [Para 29][496F-G]
C
5.3 The Court must also while interpreting an Act see what
is the purpose of the Act. The purpose of the Act of 2015 is to
ensure that children who come in conflict with law are dealt with
separately and not like adults. After the unfortunate incident of
rape on December 16, 2012 in Delhi, where one juvenile was
involved, there was a call from certain sections of the society D
that juveniles indulging in such heinous crimes should not be
dealt with like children. 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 be justified. When the language of the section E
is clear and it prescribes a minimum sentence of 7 years
imprisonment while dealing with heinous offences then the Court
cannot wish away the word ‘minimum’. [Para 30][496G-H; 497A-
B]
5.4 No doubt, there appears to be a gross mistake F
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. The Court cannot
fill the gap by saying that these offences should be treated as G
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. The Court
may fill in the gaps but cannot enact a legislation, especially when H
482 SUPREME COURT REPORTS [2020] 2 S.C.R.

A the Legislature itself has enacted one. The Court also has to
keep in mind the fact that the scheme of the 2015 Act is that
children should be protected. 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. [Para 31][497C-E]
B
6. The High Courts of Bombay, Patna, and Punjab and
Haryana, have taken a view that the category of ‘heinous offences’
cannot include offences falling within the 4th category. No contrary
view has been brought to the notice of this Court. There is no
reason to take a different view. [Para 32][497F]
C
7. From the scheme of Section 14, 15 and 19 it is clear that
the Legislature felt that before the juvenile is tried as an adult a
very detailed study must be done and the procedure laid down
has to be followed. Even if a child commits a heinous crime, he is
not automatically to be tried as an adult. This also clearly indicates
D that the meaning of the words ‘heinous offence’ cannot be
expanded by removing the word ‘minimum’ from the definition.
[Para 34][498C]
8. Though the Court is of the view that the word ‘minimum’
cannot be treated as surplusage, yet the Court is duty bound to
E decide as to how the children who have committed an offence
falling within the 4th category should be dealt with. This Court
cannot legislate. However, if this Court does 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
F definitely are serious, or may be more than serious offences, even
if they are not heinous offences. Since two views are possible
the Court would prefer to take a view which is in favour of children
and, 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, it is directed that from the date when the Act of
G 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’. [Para
35][498C-F]

H
SHILPA MITTAL v. STATE OF NCT OF DELHI & ANR. 483

9. Therefore, an offence which does not provide a minimum A
sentence of 7 years cannot be treated to be a heinous offence.
However, 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
B
offences’ within the meaning of the Act and dealt with accordingly
till the Parliament takes the call on the matter. [Para 36][498G-
J][499-A]
10. In the impugned judgment the name of the Child in
Conflict with Law, has been disclosed. This is not in accordance
with the provisions of Section 74 of the Act of 2015, and various C
judgments of the courts. The High Court is directed to correct
the judgment and remove the name of the Child in Conflict with
Law. [Para 37] [499 A-B]
11. A copy of this judgment is directed be sent to the
Secretary Law, Ministry of Law and Justice, Government of India, D
Secretary, Ministry of Women and Child Development,
Government of India and the Secretary, Home, Ministry of Home
Affairs, and Registrar General, Delhi High Court, who shall
ensure that the issue raised in this judgment is addressed by the
Parliament as early as possible or by the Executive by issuing an E
Ordinance. The directions in this judgment shall continue to
remain in force only till such action is taken. [Para 38][499B-D]
Vasant Ganpat Padave v. Anant Mahadev Sawant 2019
SCC Online SC 1226 – relied on.
Saurabh Jalinder Nangre & Ors. v. State of F
Maharashtra 2019 (1) Crimes 253 (Bom); Rajiv Kumar
v. State of Bihar Criminal (SJ) No.1 716 of 2018
Judgment dated 18.09.2018; Bijender v. State of
Haryana and another CRR 1615 of 2018 judgment
dated 21st May, 2018 – approved. G
Sheela Barse (II) and others v. Union of India and
others (1986) 3 SCC 632 ; Salil Bali v. Union of India
and Another (2013) 7 SCC 705 ; Subramanian Swamy

H
484 SUPREME COURT REPORTS [2020] 2 S.C.R.

A and others v. Raju through Member, Juvenile Justice
Board and Another (2014) 8 SCC 390 : [2014]
9 SCR 283 – referred to.
Grey v. Pearson (1857) 6 HLC 61 ; Salmon v.
Duncombe and Others (1886) 11 AC 627 ; Mc Monagle
B v. Westminster City Council [1990] 2 A.C. 716 –
referred to.
“Principle of Statutory Interpretation” by Justice G.P.
Singh’s – referred to.
Case Law Reference
C
(1986) 3 SCC 632 referred to Para 6
(2013) 7 SCC 705 referred to Para 11
[2014] 9 SCR 283 referred to Para 11
2019 (1) Crimes 253 (Bom). approved Para 32
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 34 of 2020.
From the Judgment and Order dated 01.05.2019 of the High Court
of Delhi at New Delhi in Criminal Revision Petition No. 351 of 2019.
E Siddharth Luthra, Sr. Adv., Ms. Pritha Srikumar Iyer, Ms. Arunima
Kedia, Ms. Sayali K., Ms. Maneka Khanna, Akshay Sehgal, Kunal
Mimani, Saif-u Din, Ms. Pritha Srikumar, Advs. for the Appellant.
Ms. Sonia Mathur, Mukul Rohatgi, Sr. Advs., Mohan Prasad Gupta,
Ms. Sunita Sharma, Sushil Dube, Ms. Divya A. Nair, Ms. Anju Aggarwal,
F Punit Pathak (for B. V. Balaram Das), Hrishikesh Baruah, Siddhant
Kaushik, Ashish Kumar, Advs. for the Respondents.
The Judgment of the Court was delivered by
DEEPAK GUPTA, J.

G 1. Leave granted.
2. “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?” is the
H extremely important and interesting issue which arises in this case.
SHILPA MITTAL v. STATE OF NCT OF DELHI & ANR. 485
[DEEPAK GUPTA, J.]

3. The factual background is that a juvenile ‘X’ is alleged to have A
committed an offence punishable under Section 304 of the Indian Penal
Code,1860 (IPC for short) which offence is punishable with a maximum
punishment of imprisonment for life or up to 10 years and fine in the first
part and imprisonment up to 10 years or fine, or both in the second part.
No minimum sentence is prescribed.
B
4. The deceased in the motor vehicle accident was the brother of
the appellant herein. The juvenile at the time of occurrence was above
16 years but below 18 years. The Juvenile Justice Board vide order
dated 04.06.2016 held that juvenile ‘X’ has committed a heinous offence,
and, therefore should be tried as an adult. The appeal filed to the Children’s
Court was also dismissed on 11.02.2019. Thereafter, the juvenile ‘X’, C
through his mother approached the High Court of Delhi, which vide
order 01.05.2019 held that since no minimum sentence is prescribed for
the offence in question, the said offence did not fall within the ambit of
Section 2(33) of the Juvenile Justice (Care and Protection of Children)
Act, 2015. This order is under challenge in this appeal. D
5. We have heard Mr. Siddharth Luthra, learned senior counsel
for the appellant and Mr. Mukul Rohatgi, learned senior counsel and
Mr. Hrishikesh Baruah, learned counsel appearing for juvenile ‘X’.
6. To appreciate the contentions of the parties, it would be relevant
to make a brief reference to the history and development of Juvenile E
Justice Act in India. In India there was no pan India Act to govern
children, and some states had their own enactments, like the Madras
Children Act, 1920. The Union had also enacted the Children Act of
1960 but this was only applicable to Union Territories and not the States.
Therefore, this Court in Sheela Barse(II) and others vs. Union of F
India and others1, observed as follows :-
“4. We have by our order dated August 5, 1986 called upon
the State Governments to bring into force and to implement
vigorously the provisions of the Childrens’ Acts enacted in the
various States. But we would suggest that instead of each State G
having its own Childrens’ Act different in procedure and content
from the Childrens’ Act in other States, it would be desirable if
the Central Government initiates Parliamentary Legislation on the
subject, so that there is complete uniformity in regard to the various
1
(1986) 3 SCC 632 H
486 SUPREME COURT REPORTS [2020] 2 S.C.R.

A provisions relating to children in the entire territory of the
country…”
It would be pertinent to mention that these observations were
made in the context of developments happening internationally in the
field of Child Rights. The United Nations General Assembly adopted
B the United Nations Standard Minimum Rules for the Administration of
Juvenile Justice on 29th November, 1985. These Rules are commonly
referred to as the Beijing Rules. Clause 4.1 of the Rules reads as
follows :-
“4.1 In those legal systems recognizing the concept of the age of
C 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.”
7. As is apparent, the Rules did not fix any specified age and left
it to each country to frame their domestic laws, keeping in view the
D various relevant doctrines.
8. After the adoption of the Beijing Rules, India enacted the Juvenile
Justice Act, 1986. In this Act, the juvenile was defined under Section
2(h) to mean a boy who has not attained the age of 16 years or a girl
who has not attained the age of 18 years. Such a juvenile was entitled to
E various protections and these protections were uniform irrespective of
the nature of the crime committed.
9. The United Nations Convention on the Rights of Child, (CRC
for short) was adopted by the United Nations General Assembly on 20 th
November, 1989, and this Convention came into force on 2nd September,
F 1990. Under Article 1 of the CRC a child was defined as every human
being below the age of 18 years. However, if the domestic law provided
that the child attained majority below the age of 18 years, then that
would be treated to be the age till which the child would remain a juvenile.
Discretion was left to the individual countries to fix the age of juvenility
under the domestic laws.
G
10. The next development was the enactment of The Juvenile
Justice (Care and Protection of Children) Act, 2000 (hereinafter referred
to as the Act of 2000) which repealed the Juvenile Justice Act, 1986.
Under the Act of 2000 a juvenile or child was defined to mean a person
who had not completed 18 years of age. Even a juvenile in conflict with
H
SHILPA MITTAL v. STATE OF NCT OF DELHI & ANR. 487
[DEEPAK GUPTA, J.]

law was defined to mean a juvenile who was alleged to have committed A
an offence. Since there was no clarity with regard to the date on which
the age was to be determined, the definition of juvenile in conflict with
law was amended and the juvenile in conflict with law has been defined
to mean a juvenile who is alleged to have committed an offence and has
not completed 18th year of age as on the day of commission of the
B
offence.
11. An unfortunate incident of rape and murder of a young girl
(given the identity ‘Nirbhaya’) took place in Delhi in December 2012.
One of the persons involved in the crime was a juvenile, aged 17½ years.
This led to a call from society to re-visit the law and some sections of
society felt that the word ‘juvenile’ had been given a very wide meaning C
and juveniles have been dealt with leniently. In one such matter Salil
Bali vs. Union of India and Another2, this Court rejected the writ
petition which prayed for reconsideration of Sections 2(k), 2(l), and 15
of the Act of 2000. Thereafter, a writ petition titled Subramanian Swamy
and others vs. Raju through Member, Juvenile Justice Board and D
Another3 was filed challenging the provisions of the Act of 2000,
especially with regard to classification of juveniles. This petition was
also dismissed. This Court held that the decision as to who should be
treated as a juvenile is a decision for the Legislature to take and the
courts cannot enter into this arena.
E
12. Thereafter, the Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter referred to the Act of 2015) was enacted.
For the first time, the Act of 2015 made a departure from the earlier
Acts. Since this Act is the subject matter of discussion in this case, we
may refer to the following relevant provisions of the Act.
F
“Section 2(12) “child” means a person who has not completed
eighteen years of age;
Section 2(13) “child in conflict with law” means a child who is
alleged or found to have committed an offence and who has not
completed eighteen years of age on the date of commission of G
such offence;
xxx xxx xxx

2
(2013) 7 SCC 705
3
(2014) 8 SCC 390 H
488 SUPREME COURT REPORTS [2020] 2 S.C.R.

A Section 2(33) “heinous offences” includes the offences for which
the minimum punishment under the Indian Penal Code (45 of 1860)
or any other law for the time being in force is imprisonment for
seven years or more;
xxx xxx xxx
B Section 2(35) “juvenile” means a child below the age of eighteen
years;
xxx xxx xxx
Section 2(45) “petty offences” includes the offences for which
C the maximum punishment under the Indian Penal Code (45 of
1860) or any other law for the time being in force is imprisonment
upto three years;
xxx xxx xxx
Section 2(54) “serious offences” includes the offences for which
D the punishment under the Indian Penal Code (45 of 1860) or any
other law for the time being in force, is imprisonment between
three to seven years;”
13. A bare reading of Section 2(12), 2(13) and 2(35) clearly shows
that a child or a juvenile is a person who has not completed 18 years of
E age, and a child in conflict with law is a child/juvenile who commits an
offence when that child/juvenile has not completed 18 years of age.
‘Petty offences’ have been defined under Section 2(45) to mean offences
for which the maximum punishment provided under any law including
the IPC, is imprisonment up to 3 years. ‘Serious offences’ means,
offences for which punishment under any law is imprisonment between
F
3-7 years. ‘Heinous offences’ have been defined to mean offences for
which the minimum punishment under any law is imprisonment for 7
years or more. This was a departure from the previous legislation on
the subject where the offences had not been categorised as heinous or
serious.
G 14. Section 14 of the Act of 2015 lays down the procedure to be
followed by the Juvenile Justice Board while conducting an enquiry
regarding a child in conflict with law under these different categories.
We are mainly concerned with sub-section (5) (d), (e) and (f), which
reads as follows :-
H
SHILPA MITTAL v. STATE OF NCT OF DELHI & ANR. 489
[DEEPAK GUPTA, J.]

“14. Inquiry by Board regarding child in conflict with law. A
xxx xxx xxx
(5) The Board shall take the following steps to ensure fair and
speedy inquiry, namely:—
(a) … … … B
(b) … … …
(c) … … …
(d) cases of petty offences, shall be disposed of by the Board
through summary proceedings, as per the procedure prescribed
C
under the Code of Criminal Procedure, 1973 (2 of 1974);
(e) inquiry of serious offences shall be disposed of by the Board,
by following the procedure, for trial in summons cases under the
Code of Criminal Procedure, 1973 (2 of 1974);
(f) inquiry of heinous offences,— D
(i) for child below the age of sixteen years as on the date of
commission of an offence shall be disposed of by the Board
under clause (e);
(ii) for child above the age of sixteen years as on the date of
commission of an offence shall be dealt with in the manner E
prescribed under section 15.”
15. The inquiry for serious offences has to be disposed of by
following the procedure for trial in summons cases under the Code of
Criminal Procedure, 1973 (Cr.PC for short). As far as heinous offences
are concerned if the child is below 16 years then the procedure prescribed F
for serious offences is to be followed; but if the child is above 16 years
then assessment in terms of Section 15 has to be made.
16. The above categorisation has been done with a purpose which
is reflected in Section 15 of the Act of 2015, which reads as follows :-
G
“15. Preliminary assessment into heinous offences by
Board. - (1) In case of a heinous offence alleged to have been
committed by a child, who has completed or is above the age of
sixteen years, the Board shall conduct a preliminary assessment
with regard to his mental and physical capacity to commit such
H
490 SUPREME COURT REPORTS [2020] 2 S.C.R.

A offence, ability to understand the consequences of the offence
and the circumstances in which he allegedly committed the offence,
and may pass an order in accordance with the provisions of sub-
section (3) of section 18:
Provided that for such an assessment, the Board may take the
B assistance of experienced psychologists or psycho-social workers
or other experts.
Explanation.—For the purposes of this section, it is clarified that
preliminary assessment is not a trial, but is to assess the capacity
of such child to commit and understand the consequences of the
C alleged offence.
(2) Where the Board is satisfied on preliminary assessment that
the matter should be disposed of by the Board, then the Board
shall follow the procedure, as far as may be, for trial in summons
case under the Code of Criminal Procedure, 1973 (2 of 1974):
D Provided that the order of the Board to dispose of the matter shall
be appealable under sub-section (2) of section 101.
Provided further that the assessment under this section shall be
completed within the period specified in section 14.
This Section provides that if the child offender has committed a
E
heinous offence, the Juvenile Justice Board shall 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. The Board is entitled to take the help
F of experienced psychologists, psychosocial workers or other experts in
the field. The explanation makes it clear that the preliminary assessment
is not to go into the merits of the trial or the allegations against the child.
The inquiry is conducted only to assess the capacity of the child to commit
and understand the consequence of the offence. If the Board is satisfied
that the matter can be disposed of by the Board, then the Board shall
G
follow the procedure prescribed in summons cases under the Cr.PC.
17. Section 19 of the Act of 2015 empowers the Children’s Court
to re-assess the preliminary assessment of the Board under Section 15.
It reads as follows :-
H
SHILPA MITTAL v. STATE OF NCT OF DELHI & ANR. 491
[DEEPAK GUPTA, J.]

“19. Powers of Children’s Court - (1) After the receipt of A
preliminary assessment from the Board under section 15, the
Children’s Court may decide that—
(i) there is a need for trial of the child as an adult as per the
provisions of the Code of Criminal Procedure, 1973 (2 of 1974)
and pass appropriate orders after trial subject to the provisions of B
this section and section 21, considering the special needs of the
child, the tenets of fair trial and maintaining a child friendly
atmosphere;
(ii) there is no need for trial of the child as an adult and may
conduct an inquiry as a Board and pass appropriate orders in C
accordance with the provisions of section 18.
(2) The Children’s Court shall ensure that the final order, with
regard to a child in conflict with law, shall include an individual
care plan for the rehabilitation of child, including follow up by the
probation officer or the District Child Protection Unit or a social D
worker.
(3) The Children’s Court shall ensure that the child who is found
to be in conflict with law is sent to a place of safety till he attains
the age of twenty-one years and thereafter, the person shall be
transferred to a jail: E
Provided that the reformative services including educational
services, skill development, alternative therapy such as counselling,
behaviour modification therapy, and psychiatric support shall be
provided to the child during the period of his stay in the place of
safety. F
(4) The Children’s Court shall ensure that there is a periodic follow
up report every year by the probation officer or the District Child
Protection Unit or a social worker, as required, to evaluate the
progress of the child in the place of safety and to ensure that
there is no ill-treatment to the child in any form.
G
(5) The reports under sub-section (4) shall be forwarded to the
Children’s Court for record and follow up, as may be required.”
18. The Children’s Court constituted under the Act of 2015 has to
determine whether there is actually any need for trial of the child as an
H
492 SUPREME COURT REPORTS [2020] 2 S.C.R.

A adult under the provisions of Cr.PC and pass appropriate orders in this
regard. The Children’s Court should also take into consideration the
special needs of the child, tenets of fair trial and maintaining child-friendly
atmosphere. The Court can also hold that there is no need to try the
child as an adult. Even if the Children’s Court holds that the child has to
be tried as an adult, it must ensure that the final order includes an individual
B
care plan for rehabilitation of the child as specified in Sub-section (2) of
Section 19. Furthermore, under Sub-section(3) such 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. It is also
provided that though the child may be tried as an adult, reformative
C services, educational services, skill development, alternative therapy,
counselling, behaviour modification, and psychiatric support is provided
to the child during the period the child is kept in the place of safety.
19. It would also be pertinent to refer to Section 21 of the Act of
2015 which clearly lays down that no child in conflict with law shall be
D sentenced to death or life imprisonment without the possibility of release
whether tried under the Act or under the IPC, or any other law.
20. It is contended by Mr. Siddharth Luthra, that if the definitions
of offences, i.e., petty, serious and heinous are read literally then there is
one category of offences which is not covered by the Act of 2015. He
E submits 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. He submits that this leaves out
a host of offences falling within the 4th category. The 4th category of
F 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. He has submitted a chart of such offences. It is not
necessary to set out the chart in-extenso but we may highlight a few of
these offences. Some of these offences relate to abetment but they
G also include offences such as those under Section 121A, 122 of IPC,
offences relating to counterfeiting of currency, homicide not amounting
to murder (as in the present case), abetment to suicide of child or innocent
person and many others. He submits that it could not have been the
intention of the Legislature to leave out these offences and they should
have been in some category at least. The submission of Mr. Luthra is
H
SHILPA MITTAL v. STATE OF NCT OF DELHI & ANR. 493
[DEEPAK GUPTA, J.]

that if from the definition of ‘heinous offences’, the word ‘minimum’ is A
removed then all offences other than petty and serious would fall under
the heading of ‘heinous offences’. He submits that if the 4th category of
offences is left out it would result in an absurdity which could not have
been the intention of the Legislature. He further submits that applying
the doctrine of surplusage, if the word ‘minimum’ is removed then
B
everything will fall into place.
21. On the other hand, Mr. Mukul Rohatgi, learned senior counsel
for the juvenile ‘X’ submitted that this Court cannot rewrite the law. He
further submits that the intention of the Legislature cannot be deciphered
by this Court only on the ground that a category of offences have been
left out. If there is a lacuna in the scheme of the Act it is for the C
Legislature to correct the lacuna and this Court cannot step in.
22. It is true that if we accept the submission of Mr. Luthra, then
things will fall into place. There would be only 3 categories of offences
and all offences punishable with imprisonment of 7 years and above
would be classified as ‘heinous offence’. However, we are not solving D
a jigsaw puzzle where we have to put all the pieces in place. We are
interpreting a statute which must be interpreted as per its language and
intent.
23. The Golden Rule of Interpretation was laid down by the House
of Lords in Grey vs. Pearson4, as follows :- E

“...I have been long and deeply impressed with the wisdom of the
rule, now, I believe, universally adopted, at least in the Courts of
Law in Westminster Hall, that in construing wills and indeed
statutes, and all written instruments, the grammatical and ordinary
sense of the words is to be adhered to, unless that would lead to F
some absurdity, or some repugnance or inconsistency with the
rest of the instrument, in which case the grammatical and ordinary
sense of the words may be modified, so as to avoid that absurdity
and inconsistency, but no farther. ...”
24. The Privy Council in Salmon vs. Duncombe and Others5 G
stated the principle in the following terms :-
“It is, however, a very serious matter to hold that when the main
object of a statute is clear, it shall be reduced to a nullity by the
4
(1857) 6 HLC 61
5
(1886) 11 AC 627 H
494 SUPREME COURT REPORTS [2020] 2 S.C.R.

A draftsman’s unskilfulness or ignorance of law. It may be necessary
for a Court of Justice to come to such a conclusion, but their
Lordships hold that nothing can justify it except necessity or the
absolute intractability of the language used. ...”
25. In Justice G.P. Singh’s treatise, “Principles of Statutory
B Interpretation’6 the doctrine of surplusage as a limit on the traditional
rule of strict construction has been referred to. The main judgment on
this point is the decision of the House of Lords in McMonagle vs.
Westminster City Council 7. In that case the defendant’s premises
contained a machine which on insertion of a coin revealed two naked
women in a manifestly immoral manner. The defendant was charged
C with using this premises as a sex establishment without any licence. His
contention was that the Act (Local Government (Miscellaneous
Provisions) Act, 1982) used the words ‘which is not unlawful’ and since
he was conducting an unlawful activity he did not require a licence. It
was in this context that the House of Lords held that the words ‘which
D are not unlawful’ should be treated as surplusage and as having been
introduced by incompetent draftsmanship. In that case the intention of
the Legislature was clear that no sex establishment could be set up
without a licence. The words ‘which is not unlawful’ would render the
entire provision nugatory. That does not happen in this case. What has
happened in this case is that there is a 4th category of offences which is
E not dealt with under the Act. It cannot be said with certainty that the
Legislature intended to include this 4th category of offences in the category
of ‘heinous offences’. Merely because removing the word ‘minimum’
would make the Act workable is not a sufficient ground to hold that the
word ‘minimum’ is surplusage.
F 26. This Court in Vasant Ganpat Padave vs. Anant Mahadev
Sawant8 was dealing with the provisions of Section 32-F(1)(a) of the
Maharashtra Tenancy and Agricultural Lands Act, 1948. It was an
admitted case of the parties that this was a law for agrarian reforms.
The provision in issue deals with the rights of the tenant to purchase the
G property where the landlord is a widow, minor or person with mental or
physical disability. This Section essentially gave a right to the tenant to
exercise his right of purchase within one year from the expiry of the
6
14 th Edn., Lexis Nexis, pp.89-90, 983 (2016)
7
[1990] 2 A.C. 716
8
2019 SCC Online SC 1226 (Judgment dated 18.09.2018 Civil Appeal No. 11774 of
H 2018)
SHILPA MITTAL v. STATE OF NCT OF DELHI & ANR. 495
[DEEPAK GUPTA, J.]

period during which such landlord is entitled to terminate the tenancy. A
The Section literally provided that the landlord shall send an intimation to
the tenant of the fact that he has attained majority before the expiry of
the period during which the landlord is entitled to terminate the tenancy
under Section 31. Though a widow or a disabled person were not required
to give notice for the tenant to exercise his right of purchase, in the case
B
of a minor unless the minor on attaining majority issued such a notice,
the tenant would not be able to exercise his right of purchase. Effectively
the minor on attaining majority cold defeat the right of the tenant by not
issuing the notice. It is in this context that this Court held that this would
create such an anomaly that it would turn the entire scheme of agrarian
reform on its head. Therefore, it held as follows :- C
“25. … This anomaly indeed turns the entire scheme of agrarian
reform on its head. We have thus to see whether the language of
Section 32-F can be added to or subtracted from, in order that the
absurdity aforementioned and the discrimination between persons
who are similarly situate be obviated.” D
After discussing various rules of interpretation the Court held that
instead of striking out the classification as a whole it would delete the
words ‘of the fact that he has attained majority’. We may refer to para
43 which is relevant :-
“43. Given the fact that the object of the 1956 Amendment, which E
is an agrarian reform legislation, and is to give the tiller of the soil
statutory title to land which such tiller cultivates; and, given the
fact that the literal interpretation of Section 32-F(1)(a) would be
contrary to justice and reason and would lead to great hardship
qua persons who are similarly circumstanced; as also to the F
absurdity of land going back to an absentee landlord when he has
lost the right of personal cultivation, in the teeth of the object of
the 1956 Amendment as mentioned hereinabove, we delete the
words “..of the fact that he has attained majority..”. Without
these words, therefore, the landlord belonging to all three categories
has to send an intimation to the tenant, before the expiry of the G
period during which such landlord is entitled to terminate the tenancy
under Section 31.”
27. Mr. Luthra, drew our attention to the speech of the Minister
while introducing the Bill in relation to the Act of 2015. We need not
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496 SUPREME COURT REPORTS [2020] 2 S.C.R.

A repeat the speech in detail but reading of the same clearly indicates that
the Minister while dealing with the issue of ‘heinous offences’ wherein
the children could be tried as adults mainly made reference to the offences
of murder, rape and terrorism. There are some other speeches that have
been referred to by Mr. Luthra, but we are not referring to the same
because the intention of the Legislature as a whole cannot be gauged
B
from the speeches of individual members, some of whom supported the
Bill and some of whom did not support the Bill. The main reliance could
only be made on the objects and reasons and introduction of the Bill by
the Minister which basically makes reference to offences like murder,
rape, terrorism, where the minimum punishment is more than 7 years.
C 28. There can be no quarrel with the submission made by Mr.
Siddharth Luthra that in a given circumstance, this Court can even add
or subtract words from a statute. However, this can be done only when
the intention of the Legislature is clear. We not only have to look at the
principles of statutory interpretation but in the present case, the conundrum
D 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. 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
E the statute to give it a meaning which the Court feels would fit into the
scheme of things.
29. There can be no manner of doubt that if the intention of the
Legislature is absolutely clear from the objects and reasons of the Act
then the Court can correct errors made by the person who drafted the
F legislation and may write down or omit/delete/add words to serve the
purpose of the legislation and ensure that the legislation is given a meaning
which was intended to by the Legislature. The issue is whether in the
present case we can clearly hold what was the intention of the
Legislature.
G 30. We must also while interpreting an Act see what is the purpose
of the Act. The purpose of the Act of 2015 is to ensure that children
who come in conflict with law are dealt with separately and not like
adults. After the unfortunate incident of rape on December 16, 2012 in
Delhi, where one juvenile was involved, there was a call from certain
H
SHILPA MITTAL v. STATE OF NCT OF DELHI & ANR. 497
[DEEPAK GUPTA, J.]

sections of the society that juveniles indulging in such heinous crimes A
should not be dealt with like children. This incident has also been referred
to by the Minister in her introduction. 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
B
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’ .
31. 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 C
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 D
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. We also have to
keep in mind the fact that the scheme of the Juvenile Justice (Care and
Protection of Children) Act, 2015 is that children should be protected. E
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.
32. We may add that the High Courts of Bombay9, Patna10, and
Punjab and Haryana11, have taken a view that the category of ‘heinous F
offences’ cannot include offences falling within the 4 th category. No
contrary view has been brought to our notice. We see no reason to take
a different view.

G
9
Saurabh Jalinder Nangre & Ors. vs. State of Maharashtra, 2019 (1) Crimes 253
(Bom).
10
Criminal (SJ)No.1716 of 2018 titled Rajiv Kumar vs. State of Bihar. Judgment dated
18.09.2018
11
CRR 1615 of 2018 titled Bijender vs. State of Haryana and another, judgment dated
21st May, 2018. H
498 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 33. It was urged by Mr. Luthra that while defining ‘heinous
offences’ the word ‘includes’ has been used which would mean that the
definition is an inclusive definition and includes things not mentioned in
the definition. We are not impressed with this argument since the
definitions of ‘petty offences’ and ‘serious offences’ also use the word
‘includes’. In fact the word ‘includes’ is a surplusage. The word
B
‘includes’ in the three definition clauses does not make any sense. There
is nothing else to be included. The definition is complete in itself.
34. From the scheme of Section 14, 15 and 19 referred to above
it is clear that the Legislature felt that before the juvenile is tried as an
adult a very detailed study must be done and the procedure laid down
C has to be followed. Even if a child commits a heinous crime, he is not
automatically to be tried as an adult. This also clearly indicates that the
meaning of the words ‘heinous offence’ cannot be expanded by removing
the word ‘minimum’ from the definition.
35. Though we are of the view that the word ‘minimum’ cannot
D 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
E deal with children who have committed such offences which definitely
are serious, or may be 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 Article142 of the Constitution, we direct that
F 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’.
36. In view of the above discussion we dispose of the appeal by
answering the question set out in the first part of the judgment in the
G negative and hold that an offence which does not provide a minimum
sentence of 7 years cannot be treated to be an heinous offence. However,
in view of what we have held above, the Act does not deal with the 4 th
category of offences viz., offence where the maximum sentence is more
than 7 years imprisonment, but no minimum sentence or minimum
H sentence of less than 7 years is provided, shall be treated as ‘serious
SHILPA MITTAL v. STATE OF NCT OF DELHI & ANR. 499
[DEEPAK GUPTA, J.]

offences’ within the meaning of the Act and dealt with accordingly till A
the Parliament takes the call on the matter.
37. In passing we may note that in the impugned judgment the
name of the Child in Conflict with Law, has been disclosed. This is not
in accordance with the provisions of Section 74 of the Act of 2015, and
various judgments of the courts. We direct the High Court to correct B
the judgment and remove the name of the Child in Conflict with Law.
38. We further direct that a copy of this judgment be sent to the
Secretary Law, Ministry of Law and Justice, Government of India,
Secretary, Ministry of Women and Child Development, Government of
India and the Secretary, Home, Ministry of Home Affairs, and Registrar C
General, Delhi High Court, who shall ensure that the issue raised in this
judgment is addressed by the Parliament as early as possible or by the
Executive by issuing an Ordinance. Our directions shall continue to
remain in force only till such action is taken.
39. Pending application(s), if any, stand(s) disposed of. D

Kalpana K. Tripathy Appeal disposed of.

E

F

G

H