Dr.Subramanian Swamy and Ors-Impleadment petition in Delhi Nirbhay Rape Case
Key Points :Third party/stranger does not
have any right to participate in a criminal prosecution, which is primarily the
function of the State
The
petitioners in the Special Leave Petition approached the Board seeking
impleadment in the proceedings before
the Board and an interpretation of the provisions
of the Juvenile Justice (Care and Protection of Children) Act, 2000
(hereinafter for short ‘the JJ Act’) so as to enable the prosecution of the
first respondent in a regular criminal court.
The administration of criminal justice in India
does not envisage any role for a third party/stranger and it is the State which
represents the victim of a crime to vindicate the rights that may have been violated
and the larger social interest in enforcing and maintaining the criminal law
system.
The
Court in India has also been slow in approving third party intervention in
criminal proceedings on grounds of larger public interest.
Full Text of judgement :
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO. 1953 OF 2013
Dr.
Subramanian Swamy and Ors
………..Petitioner (s)
Versus
Raju,
Through Member, Juvenile
Justice
Board And Anr …..Respondent(s)
J U D G
M E N T
RANJAN
GOGOI, J.
Should the adjudication sought for by the
petitioner be refused at the threshold on the basis of the fairly well
established legal proposition that a third party/stranger does not have any
right to participate in a criminal prosecution which is primarily the function
of the State. The aforesaid
question arises in the following facts and
circumstances.
On 16.12.2012, a ghastly incident of gang
rape took place in a moving bus in the streets of Delhi. In connection with the
said incident six accused were arrested on 22.12.2012, one of whom, namely, the
first respondent in the present special leave petition was a juvenile on the
date of the occurrence of the crime. The
victim of the offence died on 29.1.2013. While the Juvenile Justice Board
(hereinafter for short “the Board”) was in seizing of the matter against the
first respondent, the petitioners in the special leave petition approached the
Board seeking impleadment in the
proceedings before the Board and an interpretation of the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000 (hereinafter for short ‘the JJ Act’) so as to
enable the prosecution of the first respondent in a regular criminal court.
According to the petitioners while the Board did not pass any written orders in
the matter it had expressed its inability to decide the question of law brought
before it and directed the petitioners to approach a higher Court. Accordingly,
on 18.1.2013 the petitioners filed a
public interest litigation in the High Court
of Delhi with the following prayers.
(i) Laying
down an authoritative interpretation of Sections 2(l) and 2(k) of the Act that
the criterion of 18 years set out
therein does not comprehend cases grave offences in general and of heinous crimes
against women in particular that shakes the roots of humanity in general.
(ii) That
the definition of offences under Section 2(p) of the Act be categorized as per
the grievousness of the crime committed and the threat to public safety and
order.
(iii) That
Section 28 of the Act be interpreted in terms of its definition, i.e.,
Alternative Punishment and serious offences having minimum punishment of 7
years imprisonment and above be brought outside its purview and the same should
be tried by an Ordinary Criminal Court.
(iv) Incorporating
in the Act, the international concept of age of Criminal Responsibility and
diluting the blanket immunity provided to the juvenile offender on the basis of
age.
(v) That the instant Act be read down in consonance
with the rights of victim as protected by various Fundamental Rights including
Article 14 and 21 of the Constitution of India.
(vi) Pass such other and further order or orders as
this Hon’ble Court may deem fit and proper in the facts and circumstances of
the case.”
By order dated 23.1.2013 the High Court
declined to answer the questions raised on the ground that the petitioners had
an alternative remedy under the JJ Act against the order as may have been
passed by the Board.On the very next day, i.e., on 24.1.2013 the Board
dismissed the application filed by the petitioners seeking impleadment and the
other reliefs. On 19.2.2013 the petitioners had approached this Court seeking
special leave to appeal against the order dated 23.1.2013 passed by the High
Court of Delhi dismissing the public interest litigation.
The prayers made by the petitioners in the
public interest litigation before the High Court not having been touched upon
in any manner whatsoever, on the ground already noticed,
naturally the scope of the present special leave petition, if it is to be
entertained, must be understood to be co-extensive with the questions arising
before the High Court.
At the very outset, Mr. Sidharth Luthra,
learned Additional Solicitor General appearing for the Union as well as Mr.
A.J. Bhambhani, learned counsel for the first respondent has raised a vehement
plea that this special leave petition should not be entertained as the same ex
facie disclose serious doubts with regard to its maintainability. The gravamen
of the contentions raised by the learned counsels for the respondents is that
the administration of criminal justice
in India does not envisage any role for a third party/stranger and it is the
State which represents the victim of a crime to vindicate the rights that may
have been violated and the larger social interest in enforcing and maintaining
the criminal law system. In this regard learned counsels have placed reliance
on several decisions of this Court, which will be noticed hereinafter, wherein
the aforesaid legal principle has been stated and reiterated.
To counter the arguments advanced on the plea
of maintainability raised by the
respondents, the first petitioner – Dr. Subramanian Swamy, who had appeared- in -person and were authorized to do
so on their behalf by the other petitioners, has submitted that the prayers
made before the High Court which would now require consideration of this Court
make it clear that the petitioners neither seek impleadment in the proceeding
pending before the Board against the first respondent nor the payers made have
any specific bearing to the criminal acts committed by the first respondent.
According to the first petitioner, reference to the 16 th December, 2012
incident and to the role of the first respondent in the said incident is merely
incidental and illustrative.
The approach to the High Court and to this
Court has been made in view of the larger public interest inherent in the
question raised by the petitioners. All that the petitioners seek is an
authoritative pronouncement on the provisions
of the JJ Act and its applicability to juveniles
within the meaning of the said Act who commit certain categories of extremely
heinous and depraved criminal acts. On merits,the first
petitioner has contended that the provisions of the JJ Act ought to be read
down by this Court to provide for categorization of the offences committed by a
juvenile depending on depravity thereof and for the trial of a juvenile for the
most serious and heinous of such offences by treating such acts as offences
under Indian Penal Code. We have noticed, in brief, the contentions of the
petitioners on merits though we had confined the hearing that took place
on14.8.2013 to the question of maintainability of the special leave petition
leaving the merits of the questions and issues raised open for consideration in
the event it becomes so necessary.
The administration of criminal justice in
India can be divided into two broad stages at which the machinery operates. The
first is the investigation of an alleged offence leading to prosecution and the
second is the actual prosecution of the offender in a Court of Law. The jurisprudence
that has evolved over the decades has assigned the primary role and
responsibility at both stages to the State though we must hasten to add that in
certain exceptional situations there is a recognition
of a limited right in a victim or his family members to take part in the process,
particularly, at the stage of the trial. The law, however, frowns upon and
prohibits any abdication by the State of its role in the matter at each of the
stages and, in fact, does not recognize the right of a third party/stranger
to participate or even to come to the aid of the State at any of the stages. Private
funding of the investigative process has been disapproved by this Court in Navinchanda N. Majithia v. State of Meghalaya and Others and the
following observations amply sum up the position:“Financial crunch of any State
treasury is no justification for allowing a private party to supply funds to
the police for conducting such investigation. Augmentation of the fiscal resources
of the State for meeting the expenses needed for such investigations is the
lookout of the executive. Failure to do it is no premise for directing a
complainant to supply funds to the investigating
officer. Such funding by interested private parties would vitiate the
investigation contemplated in the Code. A vitiated investigation is the
precursor for miscarriage of criminal justice. Hence any attempt, to create a precedent permitting private parties
to supply financial assistance to the police for conducting investigation,should be nipped in the bud itself. No such precedent can secure
judicial imprimatur.” Coming to the second stage of the system of administration
of criminal justice in India, this Court in Thakur Ram and Others v. The State
of Bihar (2000) 8 SCC 323 ,While
examining the right of a third party to invoke the revisional jurisdiction
under the Code of 1898, had observed as under : “ The criminal law is not to be
used as an instrument of wrecking private vengeance by an aggrieved party against the person who,
according to that party, had caused injury to it. Barring a few exceptions, in
criminal matters the party who is treated as the aggrieved party is the State
which is the custodian of the social interests
of the community at large and so it is for the State to take all the steps
necessary for bringing the person who has acted against the social interests of
the community to book.”
In Panchhi
and Others v. State of U.P. this Court have refused leave to the National
Commission for Women to intervene in an appeal before this Court wherein a young mother was facing
execution of the capital sentence imposed on her on the ground that the
National Commission for AIR 1966 SC
911(1998) 7 SCC 177 Women or for that matter any other organization cannot have
locus standi in a criminal case.
This Court has also been slow in approving
third party intervention in criminal proceedings on grounds of larger public
interest. In Janta Dal v. H.S. Chowdhary
and Others the public interest litigation petitioner was held to have no locus
to bring a public interest litigation seeking certain directions in a matter of
issuance of a letter of rogatory/request to the Swiss Government in an
investigation that was then pending in what came to be popularly known as the
Bofors case. Similarly, in Simranjit Singh Mann v. Union of India and Anr.this
Court had declined leave to the President of a recognized political party,
namely, Akali Dal (M) to challenge, under Article 32 of the onstitution, the conviction and sentence of
the accused found guilty of the offence under Section 302 IPC. The view taken
by this Court in Simranjit Singh Mann (supra)
seems to be based on the fact that petitioner before this Court was a total
stranger to the offence committed by the accused whereas in Janta Dal (1992) 4
SCC 305 (1992) 4 SCC 653(supra) the public interest litigation
petitioner was found to have a personal and private interest in the matter.
[para 119 of the Report in Janta Dal(supra)] Adverting to the facts of the
present case, undoubtedly, in the pleadings of the petitioners there is a
reference to the first respondent, i.e., the juvenile who is alleged to have committed
the offence. There can also be no manner of doubt that if the provisions of the
JJ Act are to be construed in the manner that the petitioners seek the first
respondent will be affected. The petitioners are in no way connected with the incident
in question. But would the above, by itself, render the action initiated by the
petitioners non-maintainable on the ground that they have no locus to raise the
questions that have arisen being total strangers to the alleged crime, as
contended by the Respondents on the strength of the principles noticed above?
The petitioners do not seek impleadment in
the inquiry against the first respondent presently pending before the Board or
in the trial to which he may be relegated in the event the questions of law are
answered in favour of the petitioners and that too within the requisite time
span. Such a prayer, i.e., for impleadment was raised and decided against the
petitioners by the Board. The said prayer had not been pursued before the High
Court. Neither the same has been raised before us. All that the petitioners
seek is an authoritative pronouncement of the true purport and effect of the
different provisions of the JJ Act so as to take a juvenile out of the purview
of the said Act in case he had committed an offence, which, according to the
petitioners, on a true interpretation of Section 2(p) of the Act, is required
to be identified and distinguished to justify a separate course of action,
namely, trial in a regular Court of Law as a specific offence under the Penal
Code and in accordance with the provisions of the Code of Criminal
Procedure.The adjudication that the petitioners seek clearly has implications beyond
the case of the first respondent and the proceedings
in which he is or may be involved. In fact,
interpretation of the relevant provisions of the JJ Act in any manner by this Court,
if made, will not be confined to the first respondent alone but will have an
effect on all juveniles who may come into conflict with law both
in the immediate and distant future.If we are to view the issue of
maintainability of the present proceeding from the aforesaid perspective
reference to the case of the first respondent in the pleadings must be understood
to be illustrative. If this Court is to interpret the provisions of the Act in
the manner sought by the petitioners, the
possible effect thereof in so far as the first Respondent is
concerned will pale into insignificance in
the backdrop of the far reaching consequences that such an interpretation may have
on an indeterminate number of persons not presently before the Court. We are,
therefore, of the view that it would be appropriate for us hold that the
special leave petition
does not suffer fro the vice of absence of
locus on the part of the petitioners so as to render the same not maintainable in
law. We, therefore, will proceed to hear
the special leave petition on merits and
attempt to provide an answer to the several questions raised by the petitioners
before us.
We, therefore, issue notice in this special
leave petition and permit the
respondents to bring their respective additional pleadings on record, if any.
By our order dated 31.7.2013 we had permitted
the first petitioner to bring to the notice of the Board that the present special
leave petition was to be heard by us on 14.8.2013. We are told at the Bar that
in anticipation of our orders in the matter, the Board has deferred further
consideration of the proceedings against the first respondent. In
the light of the view taken by us that the questions raised by the petitioners require
an answer which need not be specific qua the first respondent we make it clear
that it is now open for the Board to proceed further in the matter and render
such orders, in accordance with law, as may be considered
just, adequate and proper.
CJI [P. SATHASIVAM]
J .[RANJANA PRAKASH DESAI]
J. [RANJAN GOGOI]
New Delhi,August 22, 2013.
