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REPORTABLE

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.

1. 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.

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2. 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 seisin 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  

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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.

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(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.”

3. 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.

4. 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  

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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.   

5. 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.  

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6. 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 16th 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,  

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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  on  

14.8.2013 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.

7. 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  

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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  Others1  and  the  following  

observations amply sum up the position:

“18. 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,  

1  (2000) 8 SCC 323  

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should be nipped in the bud itself.  No such  precedent can secure judicial imprimatur.”

8. 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 Bihar2,  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.”  

9. In  Panchhi and Others v. State of U.P.3  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  

2  AIR 1966 SC 911 3 (1998) 7 SCC 177

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Women  or  for  that  matter  any  other  organization  cannot  

have locus standi  in a criminal case.   

10. 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  

Others4 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.5 this Court had declined leave to  

the President of a recognized political party, namely, Akali  

Dal (M) to challenge, under Article 32 of the Constitution, 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  

4 (1992) 4 SCC 305 5 (1992) 4 SCC 653

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(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)]

11. 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?   

12. 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  

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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  

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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 from 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.

13. We, therefore, issue notice in this special leave petition  

and  permit  the  respondents  to  bring  their  respective  

additional pleadings on record, if any.

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14. 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]

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New Delhi, August 22, 2013.

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