Tag: #legalcase

Case Number

158 Ind Cas 554

Equivalent Citation

(1935) 37 BOMLR 461

Bench

The Bombay High Court

Decided On

12.03.1935

Relevant Act / Section

• The Indian Contract Act, 1872
• The Insurance Act, 1938

Brief Facts and Procedural History

Introduction

This legal case centres around a minor named Madanlal Sonulal, who initiated legal proceedings against The Great American Insurance Co. Ltd. for failing to fulfil a contractual promise. The agreement was made between the minor’s guardian and the insurance company and was deemed valid. Madanlal was the only surviving son of a joint Hindu family that operated a business in Devalgaum. The family had taken out a fire insurance policy with the defendant company to cover their cotton bales. However, when the cotton bales were destroyed in a fire, the plaintiff sued the defendant company for the recovery of their loss. The defendant company, which was incorporated in New York, USA, was conducting business in Bombay, India. To represent him in the case, Madanlal was aided by his next friend, Goverdhandas Mohanlal, who was the husband of the plaintiff’s sister and with whom the plaintiff was living.

The case raises several legal issues, including the enforceability of contracts entered into by minors, the obligations of an insurance company under a fire insurance policy, and the jurisdiction of foreign companies operating in India. The court had to determine whether the contract was binding on the minor, whether the insurance company had fulfilled its obligations, and whether the court had jurisdiction to hear the case. The case has significant implications for Indian contract law, particularly in relation to minors and the obligations of insurance companies. Ultimately, the court’s ruling would have a profound impact on the rights of Indian citizens in similar legal disputes.

Facts

This is an appeal case regarding a point of law arising from Mr Justice Kania’s decision. The plaintiff, Madanlal Sonulal, is represented by Goverdhandas Mohanlal, his next friend, and has filed a lawsuit against The Great American Insurance Co., Ltd. This company is based in New York, USA, but operates in Bombay at Apollo Street within the Fort of Bombay. According to the lawsuit, the plaintiff is the only surviving coparcener of a joint Hindu family that carries on a joint family business in Devalgaum under the name Surajmal Sonulal. The plaintiff lives with his sister’s husband, Goverdhandas Mohanlal, who oversees the firm’s operations. The plaintiff had effected an insurance policy against fire with the defendant company on certain cotton bales Nevertheless, at the precise moment when the ultimate insurance was granted to the plaintiff’s company, the bales were set on fire, prompting the plaintiff to file a lawsuit seeking compensation for the resulting loss through the insurance policy. The defence raised in the written statement is that there was collusion between the agent of the defendant company and the persons who affected the insurance and that the insurance was affected after the fire. The defendants did not plead that the plaintiff was a minor and that the insurance policy was void. However, during the proceedings, the defendant’s counsel drew the attention of the learned Judge to the fact that the plaintiff was a minor and invited the Court to raise an issue as to whether the contract was void on the ground of a minority of the plaintiff. The learned Judge raised such an issue, but at the trial, he came to the conclusion that it was not necessary to answer the issue since the minority had not been pleaded.

The defendants have appealed the judgment of the learned Judge. They have not challenged the findings of fact. However, they contend that the insurance policy is void because the plaintiff is a minor, relying on the well-known decision of the Privy Council in Mohori Bibee v. Dhurmodas Ghose^[1]. The Privy Council held that any contract by a minor is wholly void under the Indian Contract Act since the Act requires that parties to a contract should be persons competent to contract, and if one of the parties is a minor, he is not competent to contract, and therefore, no contract results.

The learned Judge had found that the contract was valid and negatived the case of fraud and collusion set up by the defendant company, and gave judgment for the plaintiff. The only answer raised by the defendants is that the insurance is void because the plaintiff is a minor. This contention is alarming since it means that the property of minors cannot be insured 

In numerous joint family enterprises, minors inherit ownership rights, and typically an adult member of the family manages the business under the minor’s name. However, if this family member is unable to secure insurance on behalf of the minor, it can create a highly precarious situation. Nonetheless, the evidence indicates that the agreement was actually established by Goverdhandas, who acted as a representative through his agent Trimbaksha. In other words, the minor who entered into the contract did so through the agent Trimbaksha, who was serving as the minor’s guardian. The Court need not delve into the principles of the previous cases since the answer to the defendants’ contention is a simple one. The contract was made by the guardian of the minor, and not by the minor himself. Thus, the insurance policy is not void.

Before this case, in Mohori Bibee and Ors. Vs. Dharmodas Gosh (1903), the Privy Council had held that a contract by a minor is void-ab-initio. Yet, the Privy Council ruled in Sri Kakulam Subrahmanyam Vs. Kurra Subba Rao (1948)^[2] that an agreement made by a guardian on behalf of a minor for their advantage is considered legally binding. In Suraj Narain Dube v. Sukhu Aheer and Anr (1928)^[3], the Allahabad High Court held that the old consideration by the minor is not valid consideration for a fresh contract. In the case of Kunwarlal Daryavsingh vs Surajmal Makhanlal And Ors. (1963)^[4], the Madhya Pradesh High Court held that a minor is liable to pay rent for the property given to him on rent due to necessities for living and continuing study.

The case of General American Insurance Co v/s Madanlal Sonulal^[5] thus stands in line with the legal precedents established by the above cases, where the validity of a contract made on behalf of a minor or involving a minor was challenged and resolved.

Issues Of The Case

• Validity of the insurance made by the minor: An important matter to be addressed in this case pertains to the validity of the insurance policy made by the minor. As the minor is not legally competent to enter into a contract, the enforceability of the policy is uncertain. Thus, the court must decide whether the policy is binding or whether it should be rendered void on account of the minor’s legal incapacity.
• Liability of the insurance company to pay losses under the policy: A second matter for the court to consider is whether the insurance company is responsible for covering the losses under the policy. In the event that the policy is deemed valid, the court must then decide whether the insurance company is legally required to fulfil the terms and conditions outlined in the contract. In making this determination, the court may need to evaluate various factors such as the nature of the loss, the degree of damage incurred, as well as any provisions or restrictions included in the policy.

The case of Madanlal Sonulal v. The Great American Insurance Co. Ltd. dealt with several legal issues, including:

1. Whether a policy of insurance is void if entered into on behalf of a minor by an adult member of their family.
2. Whether the defendant could raise the defence that the contract was void on the ground of the minority of the plaintiff, citing the well-known decision of the Privy Council in Mohori Bibee v. Dhurmodas Ghose.
3. Whether the contract was actually made by the minor’s guardian acting through an agent, or whether it was made directly by an adult member of the minor’s family.
4. Whether the defendant could use technical defences to policies, especially in cases involving minors and joint family businesses.
5. Whether the law strikes an appropriate balance between protecting the rights of minors and ensuring the smooth functioning of businesses and transactions involving minors.

Decision Of The Court

In the case at hand, Defendant had raised a claim in their written statement that there was collusion between Plaintiff and the agent of Defendant’s company. According to Defendant, the insurance came into effect after the occurrence of the fire, and therefore, they were not liable for the damages. The Plaintiff’s minority was not pleaded, and as a result, the learned judge concluded that since the issue of the minority was not raised, it was not necessary to address it. The judge further held that the insurance was valid and ruled in favour of the Plaintiff in the case of collusion and fraud.

However, Defendant appealed this decision on the grounds that Plaintiff was a minor at the time the insurance was taken out, and therefore, the insurance should be considered void ab initio. The court analyzed the circumstances surrounding the insurance policy and found that it had been entered into by Goverdhandas on behalf of the minor through the agent Trimbaksha with Puranmal on behalf of the Defendant’s company. The court further noted that Puranmal had knowledge of the Plaintiff’s minority, which made the Defendant’s company aware of the Plaintiff’s status as a minor.

The court then considered whether Goverdhandas could be considered a guardian within the meaning of the relevant Act. The Act defines a guardian as a person who has the care of the person of a minor or of their property, or both. In this case, the insurance was made for the benefit of the minor and their property, and Goverdhandas had acted on behalf of the minor in entering into the insurance agreement. Therefore, the court held that the insurance was valid and dismissed the Defendant’s appeal with costs.

In light of the court’s decision, the parties agreed that the insurance company would pay Rs. 7000 to the Plaintiff. This decision reflects the court’s careful consideration of the legal issues at play, including the definition of a guardian under the relevant Act and the circumstances surrounding the insurance policy in question.

Conclusion

The case of Madanlal Sonulal v. The Great American Insurance Co. Ltd. serves as a reminder of the importance of understanding the legal implications of contracts entered into on behalf of minors and the role of guardians in such transactions. In this case, the defendant raised the defence that the contract was void on the grounds of the plaintiff’s minority, citing the decision of the Privy Council in Mohori Bibee v. Dhurmodas Ghose (1903).

However, the court ultimately ruled that the contract was not made by the minor but by Goverdhandas, acting through his agent Trimbaksha. Thus, it was the person acting as the guardian for the minor who entered into the contract through the agent. This ruling underscores the importance of understanding who the contracting parties are and whether the person entering into the contract has the legal authority to do so on behalf of the minor.

Furthermore, this case highlights the need for insurance companies to carefully consider technical defences to policies, especially in cases involving minors and joint family businesses. Insurance companies must be diligent in their review of the policy and ensure that the person who enters into the contract on behalf of the minor has the legal authority to do so.

In conclusion, while the law seeks to protect minors from entering into contracts that may be detrimental to their interests, it is essential to balance the need to protect their rights with the smooth functioning of businesses and transactions involving minors. It is important to take into account the role of guardians in such transactions and to ensure that all parties understand the legal implications of the contract before entering into it. Overall, this case serves as a valuable reminder to all parties involved in contractual relationships to be aware of the legal implications of their actions and to seek legal advice where necessary.

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Endnotes:

1. Mohori Bibee v. Dhurmodas Ghose, (1903) 30 Cal. 539 (India).
2. Sri Kakulam Subrahmanyam v. Kurra Subba Rao, AIR 1948 Mad 207 (India).
3. Suraj Narain Dube v. Sukhu Aheer and Anr, AIR 1929 All 210 (India).
4. Kunwarlal Daryavsingh v. Surajmal Makhanlal and Ors., AIR 1964 SC 193 (India).
5. Madanlal Sonulal v. The Great American Insurance Co. Ltd., AIR 1962 SC 439 (India).

This case is analysed by Sohini Chakraborty, a first-year law student at RGNUL Patiala.

RELATED POST: When Age Matters: Examining the Implications of Minors Entering into Contracts

S.no	Contents
1.	Facts of the Case
2.	Issues of the case
3.	Rationale
4.	Judgment
5.	Generalis Specialibus Non-Derogant

Year

1958

Case No.

122 of 1958

Equivalent Citation

1959 AIR 396

Date of Judgment

12/12/1958

Court

The Supreme Court of India

Bench

Chief Justice Sudhi Ranjan Das, Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha, Justice K. Subbarao, Justice K.N. Wanchoo.

Introduction

Certain privileges are being provided to the parliament collectively as well as individually so that they can effectively discharge their functions without any kind of hesitation. Article 105[1] deals with the power and privileges of the house of parliament whereas Article 194[2] deals with the power and privileges of the house of Legislators. The case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others[3] not only deals with the conflict between the legislator and the court but also between the legislator and a citizen. In the Judgment part of this case, it was held by the court of law that the legislative assembly does have the power to regulate the publication of debate and other proceedings. However, this act might curtail an individual’s Fundamental Rights i.e. Right to Freedom of Speech[4], in this case, analysis, we will critically analyze why the court has given such implications and what is the validity of such implications.

Facts of the Case

In the case, the petitioner M.S.M. Sharma was a journalist at the “Searchlight” which was an English Newspaper operated in Patna, Bihar. On May 30, 1957, one of the members of the Bihar Legislative assembly whose name was, Maheshwar Prasad Narayan Sinha delivered a speech in Bihar Legislative Assembly in his speech he made some statements regarding Mahesh Prasad Singh that he was the one who guided the Chief Minister in the selection process of the other ministers and he also cited certain instances of favouritism. Further, it was alleged by Maheshwar Prasad Narayan Sinha in his speech that ministers were not given the proper ministries to which they were entitled and for which the conventional process should have been followed for the appointment. Many other instances regarding corruption were mentioned by him in the speech, he took the example of the District Judge who was only transferred from one place to another but was not discharged as per the advice of the Chief Justice of the High Court, Bihar. Further many other instances were discussed by him which were regarding the corruption and criticism of the prevailing government.

The Speaker of the assembly held that the part of the speech made by Maheshwar Prasad Narayan Sinha was objectional and directed it to be expunged. However, no specific directions were given to the Press, the speaker meant by saying this that the publication of the part of the speech which criticized the government must not be made.
On May 31, 1957, the part of the speech that was expunged by the speaker and was directed by him that publication of these parts must not be done, was published by the newspaper “Searchlight”. On 10th June 1957 Nawal Kishore Sinha, a member of the state legislative assembly questioned the same in the assembly. The matter was soon transferred to the Privilege Committee. After the evaluation of the entire facts for almost after more than a year on 18th August 1958 M.S.M. Sharma was summoned before the Privilege Committee and was asked to reply as to why an action against him must not be taken as he has done the breach of subsisting privileges. Further, the proceeding regarding the breach of privilege was initiated against the editor. M.S.M. Sharma moved to the court under Article 32 of the Indian Constitution for quashing the said proceeding and he raised the question was whether the said privilege under Article 194 was subject to the Fundamental Right under Article 19(1)(a)[5].

Issues of the case

1. Does the legislative assembly have a power under Article 194(3) of the Indian Constitution to prohibit the publication of the statement which is being done publicly in the house?
2. Do the legislative assembly privileges under Article 194 of the Indian Constitution prevail over the Fundamental Rights guaranteed by the Indian Constitution specifically Freedom of Speech and Expression?[6]

Rationale

Arguments from the Petitioner’s side:

• The notice issued by the committee and the proceeding initiated by them violates his fundamental right under Article 19(1)(a) of the Indian Constitution as well as it violates his personal life and liberty assured under Article 21 of the Indian Constitution.
• They further argued that as the petitioner of the newspaper petitioner is entitled to Freedom of the Press.
• The notice which was issued by the privilege committee was invalid as the Chief Minister of Bihar was the chairman of the Privilege Committee.

Arguments from the Respondent’s side:

• The respondent relied on the Article 194 of the Indian Constitution.
• They argued that the state legislative assembly can exercise similar powers, privileges, and immunities as the British House of Commons, where the proceedings of the assembly cannot be published.
• They further argued that the part of the speech which was directed to be expunged cannot be published by anyone under any circumstances as it was expressly prohibited.
• If a such publication is being made which was being prohibited then such publication is a breach of the privileges of the Assembly.

Judgment

The court of law held that in accordance with Article 194(3) of the Indian Constitution, the state legislative assembly of Bihar does have the same immunities, privileges and power as the British House of Commons. It was said that since Bihar legislative assembly did not have passed any law concerning the power, privileges, and immunities of the legislative assembly and hence legislative assembly of Bihar will enjoy similar power privileges, privileges, and immunities as that of the British House of Commons. In the British House of Commons, there is a framed order that no member shall give a copy or publish any kind of stuff that has happened during the preceding of the House i.e. no publication of the statement must be made that has taken place in the House. Therefore while dealing with the issue of publication regarding the proceeding of parliament or the legislative assembly the law and order of the British House of Commons should be taken into the consideration.

The petitioner said that Article 194(3) is curtailing his Fundamental Rights under Article 19(1) (a) the court has interpreted this question of has concluded that the legislative privilege under Article 194(3) does not abridge the Fundamental Rights guaranteed by the Indian Constitution under Article 19(1) (a) and explanation regarding the same was given. The court of law said that in (1) it is being mentioned that “subject to the provisions of the constitution” whereas in clauses (2) to (4) it has not been stated as subject to. Therefore it can be assumed that Constitutional makers did not intend that that clause should be subject to the provisions of the Indian constitution and hence Article 194(3) does not breach the Fundamental Rights which are guaranteed by the Indian Constitution. Further, the court of law stated that if any provision of the Indian Constitution takes away or abridges the Fundamental Right then in that case it is a violation of Article 13 and the provision that violates the Fundamental Right must be void. But, since Article 194(3) is perfectly valid it can be inferred that it does not violate Article 13 of the Indian Constitution.

However in this case the dissenting opinion was given by Justice Subbarao he quotes the case of Gunupati Keshavram Reddy v. Nafisul Hasan[7] and said that Article 194(3) is subjected to Part III i.e. Articles 12 to 35 which deals with Fundamental Rights.

Generalis Specialibus Non-Derogant

The meaning of above stated legal maxim is – where there is a special right, general rights will not be applicable. From the above discussion, we can infer that the Parliamentary Privileges or the State Legislative Privileges are special rights, and in case the Fundamental Rights are the General Rights. In the case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others[8], this was one of the key areas where consideration could have been taken and to a certain extent, it was taken. Therefore, the general principles or general rules won’t be applicable in cases where there is a special right. The same was with the condition of Article 194(3) these are the special rights that are being given to the parliament for their effective and efficient working so that they can effectively discharge their functions. And the Fundamental Rights given under 19(1) (a) is the general right that is not applicable in the circumstances in which there is a special privileges/rights and the fines example of the situation is the case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others[9].

In the case of Azad Transport Co. v. State of Bihar it was considered that the VAT is a special provision and rules in CrPC are considered to be general.

Conclusion

From the above discussion and the analysis of facts, issues, and the judgment of the case it can be said that the court in its majority decision tries to establish the harmonious construction between the prevailing Fundamental Rights and the privileges given to the parliament and the state legislature. The significance judgment of this case is of paramount importance as it serves as the judicial precedent after this particular case. After the decision was delivered by the court, the assembly was prorogued several times and the privilege committee was reconstructed which issued a fresh notice of petition in the court of law against M.S.M. Sharma. As a result, M.S.M. Sharma moved to the court seeking to reopen the same issue. The court held that the principle of res judicata is applicable in this particular case and held that the matter is already decided which is binding on the petitioner.

However, one question remained open in this case and that was whether Article 21 is being affected because of the privileges given to the parliament or state legislative. The question regarding the subjection of Article 19(1) (a) was solved by the court of law i.e. Article 19(1) (a) is not subject to the privileges. But the court of law failed in this case to answer the question relating to Article 21, whether it overrides the privileges or not.

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Endnotes

1. INDIA CONST, art. 105
2. INDIA CONST, art. 194
3. Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others, 1959 AIR 396
4. INDIA CONST, art. 19(1)(a)
5. Supra note iv
6. Ibid
7. Gunupati Keshavram Reddy v. Nafisul Hasan, AIR 1954 SC 636
8. Supra note iii
9. Ibid

This case analysis is authored by Prashant Prasad, a second-year law student from University Law College.

Bench

By Hon’ble Justice Mr. Deepak Gupta and By Hon’ble Justice Mr. Aniruddha Bose

Advocates

Pritha Srikumar, Arunima Kedia (Appellant Side) & B.V. Balaram Das, Hrishikesh Baruah (Respondent’s Side)

Cases Referred

Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice [, SC (2014) 8 SCC 390]

Factual Observations

• A juvenile ‘X’, aged 16 to 18, is accused of committing an offense punishable under section 304 of the Indian Penal Code, 1860 (IPC)¹, which carries a maximum penalty of life imprisonment or up to ten years in prison and a fine in the first part and up to ten years in prison and a fine in the second part.
• The deceased in the car accident was the appellant’s brother. The Juvenile was between the ages of 16 and 18 at the time of the incident. The appeal to the Children’s Court was similarly turned down. Following that, the juvenile ‘X’ sought the High Court of Delhi through his mother, who ruled that because no minimum term had been set for the offense in question, it did not fall under the purview of section 2 of the Juvenile Justice Act, 2015. The deceased’s sister has now filed an appeal before the Supreme Court.
• Heinous, petty, and serious transgressions are defined in sections 2(33), 2(45), and 2(54). In the IPC or any other legislation in force, heinous offenses are those for which the sentence imposed is a minimum of 7 years in prison or more.
• Siddharth Luthra, counsel for the appellant, pointed out to the Court that the Juvenile Justice Act has left out the fourth category of offenses for which the minimum sentence is less than 7 years, or for which no minimum sentence is prescribed but the maximum sentence can be more than 7 years, including homicide not amounting to murder (offense of present case). He persuaded the Court to remove the word “minimum” from the definition of heinous crimes, allowing all crimes to be categorized as “heinous crimes” with the exception of minor and serious offenses.
• Furthermore, he argued that leaving out the fourth category of charges would result in absurdity, which could not have been the legislature’s objective.
• Mukul Rohtagi, a skilled senior attorney for the Juvenile, contended that the Court could not amend the law. He stated that the Court could not interpret the legislature’s meaning since a category of offenses was left out and that the Court could not interfere to close the gap in the Act.

Issues Raised

1. What does Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015 mean and how is it interpreted?
2. What is the uncertainty created by the word “minimum” in the Statute, and how is it interpreted?
3. How can a juvenile be treated under a category of an offense that is not defined in the statute but that the appellant argues should be included as an offense?

Contentions

APPELLANT

• The appellant claimed that there was one type of crime that was not addressed in the Act of 2015, claiming that heinous crimes are those that carry a “minimum” sentence of seven years or more.
• The unincluded category, it was said, would introduce absurdity, which the Legislature did not intend. The argument was that the Act had a gap in it that generated ambiguity and, as a result, did not specify anything.
• It was also claimed that the word “includes” was used in the definition of “heinous offenses”² implying that the definition is inclusive and encompasses things not mentioned in the definition.

RESPONDENT

• The appearing counsel argued that the Court was not in a position to rewrite the legislation and that the Court could not deduce the Legislature’s intent only based on an unincluded category of offenses.
• Even if the court had to fill the gap in the Act, it was claimed that this was not practicable in this case.

Difference of Opinion B/W Lower Court and SC

The crucial question before the court was whether the youngster should be tried as an adult or not. In this case, the child was over the age of 16 but under the age of 18 when he committed the offense.

Juvenile Justice Board– Because the youngster committed an offense under the definition of a ‘serious’ offense, the Juvenile Justice Board ordered that he be punished as an adult. The mother of the kid then petitions the High Court because the sentence for the offense was not passed under Section 2 (33) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

High Court– High Court stated that if a kid has committed any heinous offense such as rape or murder, which is punished for more than 7 years, a punishment similar to that given to an adult can be imposed. The order was found to be inconsistent, prompting an appeal to the Supreme Court.

Supreme Court– It was determined that this Act does not apply to the fourth category of offenses, which are penalized for more than seven years but do not include a minimum sentence or a sentence of fewer than seven years. As a result, under the context of this Act, this is referred to as a “serious offense”. This type of issue is to be dealt with according to this procedure unless the Parliament itself deals with it.

Judgment of SC

Luthra’s submission reasoned that it was not the Court’s responsibility to fill in the gaps and fix them. The Court stated that if the legislature’s purpose was clear, it might add or remove terms from the Act. However, in cases where the legislature’s intent is uncertain, the Court cannot add or remove words to provide meaning that the Court deems fit into the scheme of things. The Court was interpreting a statute, which had to be construed following its wording and intent.

The Court dismissed the appeal by resolving the issue and ruling that an offense that does not carry a minimum penalty of seven years cannot be considered terrible. The Act, however, does not address the fourth category of offenses, namely, offenses where the maximum sentence is more than seven years in prison but no minimum sentence or a minimum sentence of fewer than seven years is provided, shall be treated as ‘serious offenses’³ within the meaning of the Act and dealt with accordingly until Parliament takes a call on the matter.

Unless the Parliament acts with it, this type of matter must be dealt with using this approach. It was decided that the Legislature’s objective does not have to be the same as the judge believes it should be. When the statute’s wording is obvious but the Legislature’s intent is ambiguous, the Court cannot add or remove terms from the statute to give it a meaning that the Court believes fits into the scheme of things. However, if the Legislature’s aim is obvious, the Court can see behind the statute’s inartistic or clunky wording and determine the problem that must be handled under the code’s objectives. The court also ordered the High Court to remove the child’s name from the Child in Conflict with the Law registry. As a result, the case was resolved in favor of the child.

Ratio Decidendi:

The rationale or the ratio decidendi is one of the crucial aspects in analyzing the mindset behind a judgment. According to Section 14 of The Children Act, 1960, If the child offender has committed a heinous crime, the Juvenile Justice Board must conduct a preliminary examination to determine the child’s mental and physical capacity to commit the crime, as well as the child’s ability to comprehend the consequences of the crime and the circumstances in which the crime was allegedly committed. The Board has the authority to enlist the assistance of experienced psychologists, psychosocial workers, or other field experts. The statement makes it clear that the preliminary assessment will not focus on the trial’s merits or the child’s allegations.

Further, under section 15 of The Children Act, 1960 –
(1) There is a need to try the child as an adult under the provisions of the Code of Criminal The procedure, 1973 (2 of 1974), and pass appropriate orders after trial, subject to the provisions of this section and section 21, taking into account the child’s special needs, the tenets of a fair trial, and maintaining a child-friendly environment;
(2) There is no requirement for the child to be tried as an adult, and the Board may conduct an inquiry and issue appropriate directions in accordance with section 18. (2) In the case of a child in conflict with the law, the Children’s Court shall ensure that the final order includes an individual care plan for the child’s rehabilitation, including follow-up by the probation officer, the District Child Protection Unit, or a social worker.

In Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice…, on 28 March 2014⁴, only one of the five people was not sentenced to death by the session court on March 28, 2014, according to the Member Juvenile Justice… In their appeal, the petitioners demanded that the juvenile be prosecuted and punished alongside the other four defendants. The first appeal, which was dismissed by the Delhi High Court, was filed. Another appeal was filed with the Supreme Court, but it was dismissed. As a result, Dr. Subhramanian Swamy’s application was denied by the Supreme Court. Furthermore, the court dismissed the victim’s parents’ writ suit.

Concluding Observations:

After analyzing the situation in the instant case, while acknowledging that the court cannot legislate, the reasoning of the bench that if it did not address the issue, the Boards would have no guidance on how to deal with children who have committed fourth-category offenses is concluded to be to the point. The court stated, “Since two viewpoints are feasible, we would prefer to choose the one that is in favor of children.” The bench, therefore, invoked its authority under Article 142 of the Constitution to order that, as of the date the 2015 Act took effect, all children who committed fourth-category offenses to be treated in the same way as children who committed serious offenses. Still, there is a need to make some serious amendments in the BOOKS OF JUSTICE.

We all know the maxim ‘Salum Populi Suprema Lex’ which means ‘the welfare of the society is the supreme law’, but unfortunately the court failed to apply the same in the recent case. I believe that sending the accused to a reform center will not affect him because his parents, who were aware of his repeated infractions, did nothing to stop him and may be able to “buy the system completely.” I personally feel that these verdicts by the Apex Court only encourage teenagers to become criminals and nothing else. A perfect example of the same is NIRBHAYA CASE.

References:

1. Section 304 of the Indian Penal Code, 1860: Punishment for culpable homicide not amounting to murder
2. Defined in Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015
3. Defined in Section 2(54) of the Juvenile Justice (Care and Protection of Children) Act, 2015
4. Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice, SC (2014) 8 SCC 390.

Analysis by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.