N 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 106575
section 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 article 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 s376 IPC 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 s360 Cr
PC 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 153 and 39e 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 vs New York1 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 Child1 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 fulfil 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 section 60 Reformation Officers section 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 section 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 UP 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 section 30 of the Act which reads 773 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 section 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 USA 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 depressingly1 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 UP 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 s360 to deal with persons under 21 years of age convicted of offences punishable with imprisonment for a term of seven years or less and section 376 IPC cannot come within its purview
But the UP 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 section 213 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 section 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 delinquents1 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 section 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 UP 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 section 29 or section 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 section 29 or section 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 UP Children Act deals with children and a child is defined by s24 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 section 29 and section 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 section 301 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
NKA Appeal allowed


Summary:
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 JPC 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 UP 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
24 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 rehabilita 769 tion 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 301 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 vs New York   249 Sentencing and probation National Collage of the State Judiciary Reno Nevada page 258 relied upon