Satto & Ors Vs. State of U.P
[1979] INSC 90 (26 April 1979)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION: 1979 AIR 1519 1979 SCR (3) 768 1979
SCC (2) 628
CITATOR INFO:
RF 1987 SC1501 (9)
ACT:
Uttar Pradesh Children Act 1952 and approved
Schools under it, Sections 2(4), 29, 30, 34, 60, 68, 70, 79 and 79, Scope of-
HEADNOTE:
Three Petitioners between the ages of 10
& 14 came by an eleven year old girl, tending cattle in a village, near a
neglected brick kiln which temptingly offered protective privacy for committing
rape. They advanced towards the victim and tied her up. They forcibly went
through the exercise of rape. The courts below have held the three petitioners
guilty of an offence under section 376 J.P.C.
and sentenced each to two years' rigorous
imprisonment.
The offenders being children the dilemmatic
issue is to fix the sentencing guide-lines for juvenile delinquents. It was
argued that "Justice and the Child" is a distinct jurisprudential
criminological branch of socio-legal speciality which is still in its infant
status in India and many other countries. The children Act is a preliminary
exercise, the Borstal School is an experiment in reformation and even Section
360 Criminal Procedure Code tends in the same direction. In the absence of any
report from the Reformation Officer nor any consideration of the social milieu,
personal antecedents, parental influence, educational status and other material
factors bearing on the three petitioners, the Court while accepting the appeal,
HELD: The appellants should be released on
probation of good conduct and committed to the care of their respective parents
and if no surviving parents, then their guardian, executing a bond each without
sureties to be responsible for the good behaviour of the youthful offender for
a period of two years from the date of release and for the observance of a
condition namely that the child shall be put to school or continue its studies
if it is already at school and attend any recreational or meditational centre,
if any, of the parents' choice regularly. The Reformation Officer enjoying
jurisdiction in the locality will have supervision over each of the appellants
and shall make a report once every three months to the Trial Court. The
Reformation Officer will explain to the appellants and their parents the import
of this order. [776H, 777A-C] Pathak, J. (concurring)-On the question whether
the youthful offender should be proceeded against under section 29 or Section
30 of the U.P. Children Act 1951, the court must apply its mind to certain
considerations like the age of the child, his family background, his general
past conduct and antecedents, the circumstances in which he committed the
offence and which of the measures provided by section 29 or section 30 would
more effectively and yet not harshly enable the child to develop into a
responsible member of society. The statute is concerned with a person whose
personality, judgment and discretion had not yet attained maturity. A
"child" has been defined under Sec. 2(4) of the Act as a person under
the age of sixteen years.
Therefore the primary object must be to place
the child in an environment conducive to his rehabilitation and providing scope
for corrective action which is the basic criteria for determining the choice
between section 29 and section 30 of the Act. Where a child has acted on an
impulse in committing an offence and there is nothing to show the presence of
any vicious streak of character, it would be more appropriate to leave him to
the care and attention of parental authority under section 30(1) (b) of the Act
rather than send him to an approved school. On the facts of the present case,
such an order would meet the ends of justice and serve the object of the
statute. [779E-H, 780A-B] William v. New York, 337 US 241, 249, Sentencing and
probation-National Collage of the State Judiciary Reno, Nevada, page 258 relied
upon.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 239 of 1979.
Appeal by Special Leave from the Judgment and
Order dated 3-11-78 of the Allahabad High Court in Criminal Revision Nos. 1064
and 1065/75.
S. K. Sabharwal for the Appellants.
O. P. Rana for the Respondent.
The following Judgments were delivered:
KRISHNA IYER, J. Concurrent convictions by
both the courts below have, by a rule of restriction and circumspection which
this Court often adopts under Art. 136, persuaded me to circumscribe the leave
to appeal to the critical question of punishment, usually answered by courts
untouched by current humane criteria and drowned in the superstition that the
gravity of the crime and the tariff prescribed in the Penal Code have a
monopolistic hold on the sentencing court. Quackery in criminology is a
deficiency in forensic justicing-especially disastrous is sensitive areas like
juvenile sentencing when unlettered punishment becomes unwitting crime.
The present case is an illustration of
judicial habituation to prescribing sentences conditioned by the offence and
its milieu, forgetting the fundamental fact that the human delinquent, not the
criminal deviance, is the cynosure of punitive processing. The further Gandhian
axiom follows that crime is like disease, and correction, not cruelty, has
dominance in the sentencing calculus. The sadistic appeal to severity of
infliction takes on a sublimated form in the judicial process, as has happened
in the instant case. The court has rightly been horrified by the crime of rape
here but wrongly bid farewell to the reform of the vernal criminals.
770 Three boys. between the ages of ten and
fourteen with simmering sex urges amidst societal inhibitions, and infatuating
stimulations, came by an eleven year old girl tending cattle in a village, and
this, by happen-stance, was near a neglected brick kiln which temptingly
offered protective privacy for carnal assault. This lascivious opportunity
excited the three juveniles, otherwise engaged in cutting grass, into erotic
experimentalism. They advanced aggressively towards the artless victim, tied up
by way of preventive detention a young cowherd who chanced to be near the scene
and forcibly went through the adolescent exercise of rape. The courts below
have held the three petitioners guilty of an offence under s.376 I.P.C. and we
do not feel it right to nibble at probabilities and disturb that conclusion.
Current Indian ethos and standards of
punitive deterrence make rape a heinous offence. The offenders, however, are
children and the dilemmatic issue is to fix the sentencing guidelines when
juvenile delinquents come before the court. 'Justice and the Child' is a
distinct jurisprudential-criminological branch of socio-legal speciality which
is still in its infant status in India and many other countries. the Children
Act is a preliminary exercise, the Borstal School is an experiment in reformation
and even s.360 Cr. P.C. tends in the same direction.
Correction informed by compassion, not
incarceration leading to degeneration, is the primary aim of this field of
criminal justice. Juvenile justice has constitutional roots in Articles 15(3)
and 39(e) and the pervasive humanism which bespeaks the superparental concern
of the State for its child-citizens including juvenile delinquents. The penal
pharmacopeia of India, in tune with the reformatory strategy currently
prevalent in civilised criminology, has to approach the child offender not as a
target of harsh punishment but of humane nourishment. This is the central
problem of sentencing policy when juveniles are found guilty of delinquency. A
scientific approach may insist on a search for fuller material sufficient to
individuate the therapy to suit the criminal malady. As the United States
Supreme Court stated in Williams v. New York,(1) present the reports:
"have been given a high value by
conscientious judges who want to sentence persons on the best available
information rather than on guess-work and inadequate information. To deprive
sentencing judges of this kind of information would undermine modern
penological procedural policies that have been cautiously adopted throughout
the nation after careful consideration and experimentation." 771 Judge F.
Rayan Duffy has written:
"If the judge has before him a complete
and accurate presentence investigation report which sets forth the conditions,
circumstances, background, and surroundings of the defendant, and the
circumstances underlying the offence which has been committed, the judge can
then impose sentence with greater assurance that he has adopted the proper
course. He can do so with much greater peace of mind." "Regrettably,
our juvenile justice system still thinks in terms of terror, not cure, of
wounding, not healing, and a sort of blind man's buff is the result. This
negative approach converts even the culture of juvenile homes into junior
jails. From the reformatory angle, the detainees are left to drift, there being
no constructive programmes for the detainees nor correctional orientation and
training for the institutional staff. I highlight these drawbacks largely
because the State's response to punitive issues relating to juveniles has been stricken
with 'illiteracy' and must awaken to a new 'enlightenment', at least prompted
by the international year of the Child. Patricia M. Wald has strengthened this
perspective in a recent book on "Pursuing Justice for the Child".(1).
"Juvenile detention needs a new focus
and a new rationale. The detention period ought to be used to begin to draw
together resources necessary for constructive change, whether or not the
juvenile is adjudicated. There is abundant evidence that detention has failed
as an isolated interlude between those more dramatic parts of the juvenile
justice system-arrest and trial or disposition.
The Juvenile judge still has a vital function
to fulfill in detention. The judge is charged with the solemn determination
whether to deprive juveniles of liberty or whether they can be released in
their parents' custody or to a third party and, if so, what conditions should
apply to the release. In making such a decision the judge should follow due
process hearing procedures and the legal presumption should favour release. If
the decision is to detain, the judge must make a record to support that
decision. The legality of preventive detention in the juvenile court needs to
be tested. If the power is upheld, the procedural safeguards should be as precise
as they are for adults.
We should abandon the notion that secure
detention is good for the child.
772 Some legal absolutes seem imperative;
jail for juveniles should be outlawed; status offenders should not be put into
secure detention; finite limits should be set on how long a child can be
detained before or after adjudication; minimum standards for physical
structure, staff, and program should be enforced by the courts. Even then, we
should not cease inquiring whether there are yet better and more enlightened
ways to use the interlude after arrest to help juveniles so that, unless they
are innocent, or so blighted that removal from the community before or after
trial is an almost indisputable necessity, there may be no need for the rest of
the progress at all." These general observations of futuristic import
apart, we have to concretise the measures to be taken in the present case under
the available law and the available facilities. The mainstream of criminal
justice has not been refined by restorative legislations.
We have the Uttar Pradesh Children Act, 1952
and 'approved schools' of sorts under it. We have provision for juvenile courts
(s. 60), Reformation Officers (s. 34), and a flexible cluster of factors,
social and personal, to be taken into consideration in passing orders when a
tender- aged delinquent is to be taken into custodial care by the court (s.
68). Reports by Reformation Officers have a helpful role in the sentencing
process. The finer focus of sentencing is not furious reaction to the offence
but habilitative rescue of the youthful offender from moral- material
abandonment and careful reformation by kindling his creative potential.
Judicial responsibility is not mechanistic but humanistic, and the ritualistic
magistrate is a misfit. Section 70 of the U.P. Children Act highlights it:
70. Principles to be observed by Courts in
dealing with children and young persons.- Every Court in dealing with a child
who is brought before it, either as needing care or as an offender or otherwise
shall have regard to the welfare of the child and shall in a proper case take
steps for removing him from undesirable surroundings and for securing that
proper provision is made for his education and training.
Functionally, a judicial order on a child
must be guided by this legislative value judgment. Non-custodial disposition of
the young offender is permissible under s. 30 of the Act which reads:
30. Power to discharge youthful offender or
to commit him to suitable custody.- (1) A court may, if it thinks fit, instead
of directing any youthful offender to be detained in an approved school, order
him to be- (a) discharged after due admonition; or (b) released on probation of
good conduct and committed to the care of his parent or guardian or other adult
relative or other fit person, on such parent, guardian, relative or person
executing a bond, with or without sureties, as the Court may require, to be
responsible for the good behaviour of the youthful offender for any period not
exceeding three years and for the observance of such other conditions as the
Court may impose for securing that the youthful offender may lead an honest and
industrious life.
The Court may order that the youthful
offender released under this clause may be placed under the supervision of a
Reformation Officer or of some other person appointed for the purpose by the
Court.
(2) If it appears to the Court on receiving a
report from the Reformation Officer or otherwise that the offender has not been
of good behaviour during the period of the probation, it may, after making such
inquiry as it thinks fit, order the offender to be detained in an approved
school.
Indeed, a conscientious judge may consider it
of better service to society :
"If the criminal's past history gives
good reason to believe that he is not of the naturally criminal type, that he
is capable of real reform and of becoming a useful citizen, there is no doubt
that probation, viewed from the selfish standpoint of protection to society
alone, is the most efficient method that we have. And yet it is the least
understood, the least developed, the least appreciated of all our efforts to
rid society of the criminal." "The basic idea underlying a sentence
to probation is very simple. Sentencing is in large part concerned with avoiding
future crimes by helping the defendant learn to live productively in the
community which he has offended against. Probation proceeds on the theory that
the best way to pursue 774 this goal is to orient the criminal sanction toward
the community setting in those cases where it is compatible with the other
objectives of sentencing. Other things being equal, the odds are that a given
defendant will learn how to live successfully in the general community if he is
dealt with in that community rather than shipped off to the artificial and a
typical environment of an institution of confinement. Banishment from society,
in a word, is not the way to integrate someone into society. Yet imprisonment
involves just such banishment-albeit for a temporary sojourn in most cases.
This is of course not to say that probation
should be used in all cases, or that it will always produce better results.
There are many goals of sentencing, some of which in a given case may require
the imposition of a sentence to imprisonment even in the face of a conclusion
that probation is more likely to assure the public that the particular
defendant will not offend again. And there are defendants as to whom forced
removal from the environment which may in some part have contributed to their
offence may be the best beginning to a constructive and useful life."(1)
Appeal and revision provided under s. 79 of the Act involve the higher courts
in the process. We are sad that this crucial judicial task has been discharged
with lesser awareness of its seriousness and complexity than necessary.
For instance the Sessions Court, oblivious of
the offender and obsessed with the offence, in brief confirmation, spent one
sentence on sentence.
"Due to seriousness of the crime there
is no justification to release the appellants on probation." The High
Court devoted a paragraph but was upset by the Criminal act and closed its mind
to salvaging the sentence :
"Lastly, it is urged that the sentence
awarded to the revisionists be reduced in view of their ages. I am reluctant to
do so because they committed a crime which repels against moral conscience.
They chose a girl of 11 years to satisfy their lust. They spoiled her life by
committing this offence as her father would experience considerable difficulty in
arranging her marriage. They were so cruel that all the three committed rape on
that minor child. Such an act deserves to be deprecated. The sentence awarded
by the 775 learned lower courts does not at all err on the side of severity.
Moreover, the learned lower courts have already shown sympathy by keeping them
in an approved school at Etawah." While the victim needs reparation,
failure to pay heed to, which is a blind spot in our criminal justice system,
the offender's circumstances are material in sentencing, omission to notice
which is a systemic, though traditional failing. We find no emphasis on the age
antecedents, parental and social circumstances and curative possibilities or
Reformation Officer's report bearing on the three children punished. The
Children Act makes meticulous provisions which slumber on the statute book and
seek no visa into the court room. We hope this elaborate discussion will
activate sentencing wisdom vested in the criminal courts.
At this late stage, without prolonging the process,
we can only direct some pragmatic steps. No report from a Reformation Officer
is available. No consideration of the social milieu, personal antecedents,
parental influences, educational status and other material factors is apparent
in the judgments. Nor, indeed, is there any serious advertence to the
advantages of community-oriented reformation or the disadvantages of
institutional inter-mix and quasi- incarceration. The juvenile detention
system, it must be noted, has not fulfilled itself even in countries where it
is heavily funded like in the U.S.A. where the young delinquents are
"penned like cattle, demoralized by lack of activities and trained staff,
often brutalized. Over half the facilities in which juveniles are held have no
psychiatric or social work staff. A fourth have no school program. The median
age of detainees is fourteen; the novice may be sodomized within a matter of
hours. Many have not been charged with a crime at all. From New York to
California, the field reports repeat themselves depressingly.(1) Our `approved
schools' like our adult prisons sometimes remind us of animal farms, if only
judges care to visit jails.
These blemishes, in far worse measure, have
blighted our Homes and Schools and approved custodial institutions, although
our correctional repertory, augmented by meditational, recreational and
oriented Gandhian tools, may inexpensively expand and deepen the rehabi- 776
litative potency of our sentencing strategies in this area.
Be that as it may, the U.P. Children Act
appears to have been virtually given a go-bye in the courts below, a phenomenon
which frequently happens because practising lawyers and judicial officers have
not yet given the deeper reflection that welfare-oriented rehabilitative
legislations of the mentally and morally retarded in the criminal justice field
deserve. The Criminal Procedure Code, 1973, has made provision in s.360 to deal
with persons under 21 years of age convicted of offences, punishable with
imprisonment for a term of seven years or less and s. 376 I.P.C., cannot come
within its purview. But the U.P. Children Act defines a `youthful offender' to
mean "any child who has been found a to have committed an offence
punishable with transportation or imprisonment". Thus, life imprisonment
for the offence does not take the delinquent out of the category of youthful
offender as defined in s. 2(13) of the said Act. Section 30 authorises the
Court, if it thinks fit, instead of directing any youthful offender to be
detained in an approved school, order him to be released conditionally, as
earlier indicated. We think that the present case deserves action under s. 30.
Rape is horrific True. The victim is a
pathetic child and deserves not merely commiseration but also compensation, an
aspect which the State will take note of when a proper application is made to
it. Our immediate problem is the disposition of the appellants who are also
very young. They have served out some term in an `approved school' which,
making a realistic appraisal, is a `junior jail'. It is not as if these little
lads are incorrigible rapists or violent toughs running amok. Parental neglect,
tempting opportunity, sex perversionslibadences (sic) libidinous environs and a
host of other factors where state in-action is contributory to exciting
adolescent erotica, count for vulgar, vicious or violent delinquency. These
boys can and should be rehabilitated, and that is done best by obligating the
parent to take care of the children concerned and not by institutionalised
custody. Section 30 of the Act is attracted by the facts of this case to the
extent we are able to glean from the meagre material on record. We hope that
when children are brought before court, the provisions of the Children Act will
be remembered by the Bench and the Bar and its rehabilitative engineering set
in motion.
In the present case, we direct the appellants
to be released on probation of good conduct and committed to the care of their
respective parents and if no surviving parent then their guardian executing a
bond each, without sureties, to be responsible for the good behaviour 777 of
the youthful offender for a period of two years from the date of release and
for the observance of a condition, namely, that the child shall be put to
school or continue its studies if it is already at school and attend any
recreational or meditational centre if any, of the parent's choice regularly.
Many systematic experiments, acknowledged in prison reports and judgments of
trial courts have proved the therapeutic value of transcendental Meditation
viz-a-viz juvenile delinquents.(1) The Reformation Officer having jurisdiction
over the locality shall have supervision over each of the appellants and shall
make a report once in three months to the trial court. If the report shows laps
into bad behaviour, the court may direct detention of the deviant appellant or
appellants in an approved school. The Reformation Officer will explain to the
parents of the delinquents and the appellants the import of this order so that
they may appreciate the necessity for compliance therewith and cooperate in the
rehabiliatory process.
I may venture a view in conclusion that the
revolutionary contribution Indian culture may make to criminology is apt to be
the focus on human consciousness whose mutilation leads to sickness, crime and
sorrow and whose restoration, collective and individual, is the insurance
against psychic stress and its off-shoots-crime and related maladies. The
technology of sentencing must release man from distortions and pressures on lines
ancient and modern. This parenthesis, in a sense, argues for the new
orientation in juvenile justice.
A copy of this order will be sent to the
approved school, Etawah, and to the trial Judge for immediate compliance. A
copy of the order will also be served on the Advocate for the appellants for
communication to and compliance by his clients and to the Home Department for
correctional actions.
PATHAK, J. The petitioners were convicted by
the learned Assistant Sessions Judge, Aligarh for the offence under s. 376 of
the Indian Penal Code and sentenced to two years rigorous imprisonment. He 778
directed their detention for the period of their sentence in an approved school
at Etawah. Their appeal was dismissed by the learned Additional Sessions Judge,
Aligarh. The High Court declined to interfere in revision, From the material on
the record it is not possible to say that the finding of the courts below that
the petitioners committed the offence is not substantiated by the evidence on
the record and, in my opinion, no case has been made out for interfering with
the conviction. But so far as the sentence is concerned, I think that the High
Court and the courts below have not sufficiently appreciated the need for a
proper order.
Special leave granted on the question of
sentence only.
Order on the appeal.
The appellants are children. At the time of
the offence the age of the three appellants ranged between 10 years and 14
years, the youngest, Satto, being 10 and the eldest, Bucha, being 14. They were
cutting Rizka in their village fields when Kumari Bismillah, who was then about
12 years old, passed by grazing her cattle. Apparently, the three youngsters
were seized with the temptation of having sex with her and borne on that
impulse they forced the girl inside a brick kiln and committed rape on her,
after securing a bystander, Baboo, who was also grazing his goats at the spot,
to a tree. There can be no doubt that the act cannot possibly be condoned. It
calls for severe condemnation by the plainest moral standards. But on the
question of sentence, the High Court and the courts below have, almost
mechanically, affirmed a sentence of two years imprisonment to be served out by
detention in an approved school. They have failed to apply their mind to
considerations which are relevant when a youthful offender is sentenced. The
U.P. Children Act, 1951 contains two provisions in that regard. Section 29
provides that where a child is found to have committed an offence punishable
with transportation or imprisonment, the court, if satisfied an inquiry that it
is expedient so to deal with the child, may order him to be sent to an approved
school for a stated period. Section 30 provides.- "30. Power to discharge
youthful offender or to Commit him to suitable custody.
(1) A court may, if it think fit, instead of
directing any youthful offender to be detained in an approved school, order him
to be - (a) discharged after due admonition; or (b) released on probation of
good conduct and committed to the 779 care of his parent, guardian or other
adult relative or other fit person on such parent, guardian, relative or person
executing a bond, with or without sureties, as the court may require, to be
responsible for the good behaviour of the youthful offender for any period not
exceeding three years and for the observance of such other conditions as the
court may impose for securing that the youthful offender may lead an honest and
industrious life.
The Court may order that the youthful
offender released under this clause may be placed under the supervision of a
Reformation Officer or of some other person appointed for the purpose by the
Court.
(2) If it appears to the Court on receiving a
report from the Reformation Officer or otherwise that the offender has not been
of good behavior during the period of the probation, it may after making such
inquiry as it thinks fit order the offender to be detained in an approved
school." Almost invariably the question will arise whether the youthful
offender should be proceeded against under s. 29 or s. 30 The answer to the
question lies in the judgment of the Court, which judgment must be made in the
sound exercise of its discretion. Among the considerations to which the court
must apply its mind are the age of the child his family background, his general
past conduct and antecedents, the circumstances in which he committed the
offence, and which of the measures provided by the statute, s. 29 or s. 30,
will more effectively and yet not harshly enable the child to develop into a
responsible member of society. It must be remembered that the U.P. Children Act
deals with children, and a "child" is defined by s.2(4) as a person
under the age of sixteen years. The Statute is concerned with a person whose
personality, judgment and discretion has not yet attained maturity. The primary
object then must be to place the child in an environment conducive to his
rehabilitation and providing scope for corrective action. That appears to be
the basic criterion for determining the choice between s.
29 and s. 30. In a case where the child has
acted on impulse in committing an offence, and there is nothing to show the
presence of any vicious streak of character, it would be more appropriate to
leave him to the care and attention of parental authority rather than to send him
to an approved school. That will depend, however on whether parental attention
is possible and forthcoming and whether it does not suffer from want 780 of
sufficient effectiveness in moulding the proper moral development of the child.
In my opinion, having regard to the facts and circumstances of the present case
the order contemplated by s. 30(1) (b) of the Act would more appropriately meet
the ends of justice and serve the object of the statute.
Accordingly, the appeal is allowed on the
question of sentence. The sentence imposed by the learned Assistant Sessions
Judge and affirmed by the learned Additional Sessions Judge and the High Court,
is set aside. The appellants are ordered to be released on probation of good
conduct and to be committed to the care of their respective parents, and if
there are no surviving parents then their guardian, on such parents or guardian
executing a bond each without sureties, to be responsible for the good
behaviour of the youthful offender for period of two years from the date of the
release and for the observance of a condition that the child should be put to
school or continue his studies if he is already in school, and regularly attend
any recreational centre or meditational centre (if any) of the parent's choice.
The Reformation Officer enjoying jurisdiction in the locality will have
supervision over each of the appellants and shall make a report once every
three months to the trial court. The Reformation Officer will explain to the
appellants and their parents the import of this order.
A copy of this order will be sent to the
approved school, Etawah, and to the trial court for immediate compliance. A
copy of the order will also be served on counsel for the appellants for
communication to, and compliance by, the appellants.
N.K.A. Appeal allowed.
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