# SAITO & OTHERS v. STATE OF U.P

- **Citation:** [1979] 3 S.C.R. 768
- **Court:** Supreme Court of India
- **Decided:** 1979-04-26
- **Case number:** Criminal Appeal No. 239 c of 1979
- **Bench:** V. R. Krishna Iyer, R. S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/saito-others-v-state-of-u-p-7670
- **Pages:** 13

## Headnote

Utiur Prade.sh Children Act 1952 and approved School!. under it, Sectio11s
2(4), 29, 30, 34, 60, 68, 70, 79 and 79, Scope ofThree Petitioners between the ages of 10 & 14 .::ame by an eleven year
eld girl, tending cattle in a village, near a neglected btick kiln which temptingly
offered protective privacy for committing rape.
T!iey ndvanced towards the:
victim 11nd tied her up.
They forcibly went through the exercise of rape.
The courls beJO\V have held the three petitioners guilty of an offence under
section 376 J.P.C. and sentenced each to two y~ars' rigo1ous 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 3ocio~leg<.Jl speciality which
i5 still in its infant status in India and many other countries. The children
Act is a preliminary exercise, the BO!!tal 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 oo.fecedents, parental influence, educational
status and other material factorn bearing on the three petitioners, the Court
while accepting the appeal,
1-IELD : The appellant! should be released on probation of good conduct
and com1nitted to the care of their respective pare.nts and if no surviving parents,
then their guardian, .executing a bond each without sureties to be responsible
for the good behaviour of the youthful oJfender for n. period of two years from
the date of release and for the observance of a condition namely that the
child shall he put to school or continue its studies if it is already at school
and attend any recrea.tional or meditational centre, if any, of the parents' choice
regulnrly. The Reformation Officer enjoying jurisdiction in the locality wilf
have supervision over each Of the appellants and shall make a report once
every three month! 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 \vhether the youthful offender
should be proceeded 3gainst under section 29 or Section JO of tbe U.P. Children·
Act 1951, the court must apply its mind to certain con~iJerations like the
age of the child, his family background, his general past conduct and antecedents, the circumstances in which he committed the ~!fence ar.d which of the
measures provided by section 29 or section 30 would more effectively and
yet not hatshly enable the child to develop into a responsible· men1ber of society.
The statute is concerned with a person whose personality, judg1nent and discretion
ha;.! 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.
T1tcrefore the primary
obj'ect must be to place the 'Child in an environment conducive to his reha.bilita-
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SATTO & ORS v. u.P. STATE (Krishna Iyer, I.)
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tion ai1d providing scope for corrective actiolt which fa the basic c.riteria for
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detern1ining the choice between section 29 and section JO o( the Act.
\Vhere
a child has acted on an impulse in committing an off~nc~ and there is nothing
to show the 1fresencc of any vicious streak of chara-cler, it would be more
approp1 iate to leave him to the care and attention of parental authority under
section 30( I) (b) of the Act rather than send him to an approved echool.
On the iarts of the present case, such an order would n1eet the ends of justice
and serve the object of the statute.
[779E-H, 780A-BJ
B
Willia111 v. /Vcw York, 337 US 241, 249, Sentencing and probationNationt.I College of the State Judiciary Reno, Nevada, page 258 relied upon .
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## Text

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768
SAITO & OTHERS
v.
STATE OF U.P.
April 26, 1979
[V. R. KRISHNA IYER AND R. S. PATHAK, JJ.J
Utiur Prade.sh Children Act 1952 and approved School!. under it, Sectio11s
2(4), 29, 30, 34, 60, 68, 70, 79 and 79, Scope ofThree Petitioners between the ages of 10 & 14 .::ame by an eleven year
eld girl, tending cattle in a village, near a neglected btick kiln which temptingly
offered protective privacy for committing rape.
T!iey ndvanced towards the:
victim 11nd tied her up.
They forcibly went through the exercise of rape.
The courls beJO\V have held the three petitioners guilty of an offence under
section 376 J.P.C. and sentenced each to two y~ars' rigo1ous 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 3ocio~leg<.Jl speciality which
i5 still in its infant status in India and many other countries. The children
Act is a preliminary exercise, the BO!!tal 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 oo.fecedents, parental influence, educational
status and other material factorn bearing on the three petitioners, the Court
while accepting the appeal,
1-IELD : The appellant! should be released on probation of good conduct
and com1nitted to the care of their respective pare.nts and if no surviving parents,
then their guardian, .executing a bond each without sureties to be responsible
for the good behaviour of the youthful oJfender for n. period of two years from
the date of release and for the observance of a condition namely that the
child shall he put to school or continue its studies if it is already at school
and attend any recrea.tional or meditational centre, if any, of the parents' choice
regulnrly. The Reformation Officer enjoying jurisdiction in the locality wilf
have supervision over each Of the appellants and shall make a report once
every three month! 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 \vhether the youthful offender
should be proceeded 3gainst under section 29 or Section JO of tbe U.P. Children·
Act 1951, the court must apply its mind to certain con~iJerations like the
age of the child, his family background, his general past conduct and antecedents, the circumstances in which he committed the ~!fence ar.d which of the
measures provided by section 29 or section 30 would more effectively and
yet not hatshly enable the child to develop into a responsible· men1ber of society.
The statute is concerned with a person whose personality, judg1nent and discretion
ha;.! 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.
T1tcrefore the primary
obj'ect must be to place the 'Child in an environment conducive to his reha.bilita-
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SATTO & ORS v. u.P. STATE (Krishna Iyer, I.)
7 6 9
tion ai1d providing scope for corrective actiolt which fa the basic c.riteria for
A
detern1ining the choice between section 29 and section JO o( the Act.
\Vhere
a child has acted on an impulse in committing an off~nc~ and there is nothing
to show the 1fresencc of any vicious streak of chara-cler, it would be more
approp1 iate to leave him to the care and attention of parental authority under
section 30( I) (b) of the Act rather than send him to an approved echool.
On the iarts of the present case, such an order would n1eet the ends of justice
and serve the object of the statute.
[779E-H, 780A-BJ
B
Willia111 v. /Vcw York, 337 US 241, 249, Sentencing and probationNationt.I College of the State Judiciary Reno, Nevada, page 258 relied upon .
.,,
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 239 c
of 1979.
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Appeal by Special Leave from the Judgment and Order dated
3· 11-78 of the Allahabad High Court in Criminal Revision Nos. l 064
and 1065/75.
S. K. SabharwaJ for the Appellants.
0. P. Rana for the Respondent.
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The following Judgments were delivered :
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KRISHNA IYER, J. Concurrent convictions by both the courts below
have, by a rule of restriction and circumspection which tlu1 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 ju•ticingespecia!ly disastrous is sensitiv·~ areas like juvenile sente'ncing when
unlettered punishment becomes unwitting crime.
The present case is an illustration of judicial habituation to presF
cribing sentences conditioned by the offence and its milieu, forgetting
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the fundamental fact that the human delinquent, not the criminal
deviance, is
the cynosure of punitive processing.
The further
Gandhia\l 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 instan1 case. The court has rightly been
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horrified by the crime of rape here but wrongly bid farewell to the
reform of the vernal criminals.
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7 70
SUPREME COURT REPORTS
[1979] 3 S.C.R.
Thre~ 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 opportullity 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 hibble 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
experimeht in reformation and even s.360 Cr. P.C. ~~nds in the same
direction.
Correction informed by compassion,
not incarceration
leading to degeneration, is the primary ~im of this field of criminal
justice. Juvenile justice has constitutional roots in Articles 15(3) and
39 ( e) :na the pervasive humanism which bespeaks the superparental
cohcern of the .State for its child-citizens including juvenile delinquents.
The penal pharmacopoea 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 whe'n
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,(') presente'nce 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 sehtencing 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."
tl) .m u. s. 241, 249.
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SATTO & ORS v. U.P. STATE (Krishna Tyer, J.)
771
Judge F. Rayan Duffy has written :
"If the judgg 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 offenoe
whicb 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
bu.ff 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
1or the Child".(').
"Juvenile detention needs a new focus and a new rationale.
The detention period ought to be used to begin to draw togeiher 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
cari be released in their parents' custody or to a third party
and, ii so, what conditions should apply to the release. In
making such a decision the judge should follow dUe proces£
l!earing 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 a'
precise as they are for adults. We should abandon the
gotio11 that secure detention is good for the child.
(J) pp.135-136.
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
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 ehlightened
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 almoot indisputable necessity, there may be no need for the rest of the
progress at all."
These general observations of futuristic import apart, we have toconcretise the measures to be taken i'n the present case under thfl
available law and the available facilities.
The mainstream of criminat
justice has not been refined by restorative legislations.
We have the Uttar Pradesh Children Act,
1952 and 'approved
schools' of sorts under it.
We l,!ave 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
pa!!i!ing
orders when a tender-aged delinquent is to be taken into custodial care
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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.
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Section 70 of the U.P. Childr•m 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 beG
fore it, either as needing care or as an offender or otherwis<' shall have regard to the welfare of the child and shall
in a proper case take steps for removing him from undesirable surronndings and for securing that proper provision is
mad" for his education and training.
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Functionally, a judicial order on a child must be guided by this
legislative value judgment.
Non-custodial disposition of the y-0ung
offender is permissible under s. 30 of the Act which reads :
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SATTO & ORS v. U.P. STATE (Krishna Tyer, J.)
77 3
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
offeader 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 parerrt 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 suc!J:- 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
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the Reformation Officer or otherwise that the offender has
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'.llot 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 be·
lieve 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
ltandpoint of protection to society alone, is the most efficient
method that we have. And yet it is the least understood, the
least deveioped, the least appreciated of all our efforts to rid
eociety of the criminal."
"The basic idea underlying a sentence to probation is
very simple.
Sentencing is in large part concerned with
1lVoiding future crimes by helping the defendant learn to live
pmductively in the community 1 bich he has offended against.
Pm bation proceeds on the theory that the best way to pursue
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SUPREME COURT REPORTS
[ 1979 j 3 S.C.ll.
this goal is to orient the criminal sanction toward the community setting in those cases where it is compatible with the
other obj•ectives of sentencing. Other ·things being equal, the
odds are that a give'n 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 resulls.
There are many goals of sentencing, some of which in a
give'n case may require the imposition of a s•.entence to imprisonment even in the face of a conciusion 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 co'ntributed to their offence may be the be11t
beginning to a constructive and useful life."(')
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
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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, ~pent
one sentence on sentence.
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"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 relucG
tant 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
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deserves to be deprecated. The sentence awarded by the
(1) Sentencing and Probation-National Co1lege of the State Judiciary Reno,
Nevada, p, 258.
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SATTO & ORS v. U.P. STATE (Krishna Iyer, !.)
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learned lower courts does not at all err on the side of severity.
Moreover, the learned lower courts have
already shown
sym1pathy 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
prov1S1ons
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 avail~ble. No consideration of the social milieu, personal antecedents, p.arental influences, educational status and other material factors is apparent i'n the judgments.
Nor, indeed, ii; there any serious
advertance 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 i'n 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 houNl.
Many have not been charged with a
crime at all. From New York to California, the field reports
repeat themselves depressingly.(')
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 correc-.
tional repertory, augmented by meditational, recreational and oriented
Gandhian tools, may inexpensively expand and deepen the rehabi-
(1) Patricia M. Wald, Pretrial Detention for Juveniles-Pursuing, Justice for the
Child ed. by Margaret K. Rosenheim, p. 119.
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SUPREME COURT REPORTS
[1979] 3 S.C.R.
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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
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to have committed an offence punishable with transportation or im- ~
prisonment".
Thus, life imprisonment for the offence does not take
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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 earliec
indicated. We think that
the present case deserves
action undec
s. 30.
Rape is horrific True. The victim is a pathetic child and deserve£
not merely commisseration 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 nlsB
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
3C 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 Childrea
Act will be remembered by the Bench and the Bar and its rehabilitative engineerillg set in motion.
In the present case, we direct the appellants to be released on proH
bation 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
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SATTO & ORS V. U.P. STATE (Pathak, J,)
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 therapentic value of transcendental
Meditation viz-a-viz juvenile delinquents.(')
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
1 on human consciousness whose mutilation leads to sickness, crime
and sorrow and whose restoration, collective and
individual, is 1he
insurance against psychic stress and its off-shoots-crime and related
maladies.
The technology of setencing 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
(l) a. fn the Superior court of the State of Arizona dt. March 5, 1976 in Stateo
Arizona V. Jean Coston Preslay-Case 6878.
b. Criminal action 4-81750 in the U. S. Direct court for Eastern District
of Michigan-United States of America V. Robert Charles Rusch, Jr.
c. Kentucky U Vol. 60, 1971 72 No. 2 and University of Mary Land Law
Forum Vol. VIII No. 2 Winter 1973-article by David E. Sykes.
d. Hiralal Mallick v. State of Bihar [1978] l"SCR 301.
e. ~pter 9, Juvenile Delinquency and the T. M. programme, Freedom from
Crime by Roger Glenn Lanphear p-159 (Nellon Publishing Co Ny)
1!-330SCI/79
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SUPREME COURT REPORTS
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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 dechned 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 ot 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
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SATTO & ORS v. U.P. STATE (Pathak, J,)
7 79
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,
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it may after making such inquiry as it thinks fit order the
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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 wheth~r parental attention
is possible and forthcoming and whether it does not suffer from want
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tances of the present case the order contemplated bys. 30(1) (b) of
the Act would more appropriately meet the ends of justice and serve
the objcet 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,
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is set aside.
The appellants are ordered to be released on probation of
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good conduct and to be committed to the care of their respective """"'"'
parents, and if there are no surviving parents then their guardian, on
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such parents or guardian executing a bond each without sureties, to
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be responsible for the good behaviour of the youthful offender for a
period of two years from the elate 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 wmmwfication to, and compliance by, the appellants.
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N.K.A.
Appeal allowed.
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