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PETITIONER: SUBE SINGH & ORS. ETC. ETC.

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT21/09/1988

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH VENKATACHALLIAH, M.N. (J)

CITATION:  1988 AIR 2235            1988 SCR  Supl. (3) 141  1989 SCC  (1) 235        JT 1988 (3)   729  1988 SCALE  (2)797

ACT:     Punjab  Borstal Act, 1926: Ss. 5  and  2(4)--Adolescents convicted   for   offence  of  murder   and   sentenced   to imprisonment for life under s. 302 IPC--Whether entitled  to benefit of s. 5 of the Act. %     Section  S  of  the Punjab Borstal  Act,  1926  empowers courts  to  pass  a  sentence  of  detention  in  a  Borstal institution In the case of male persons less than twenty one years  of age convicted of an offence punishable  under  the Indian  Penal  Code,  In  lieu  of  passing  a  sentence  of transportation or rigorous imprisonment. Section 2(4) of the Act which defines ’offence’ takes in offences other than  an offence punishable wlth death.

HEADNOTE:     The petitioners who have been convicted for the  offence punishable  under s. 302 of the Indian Penal Code  and  have been  sentenced to life imprisonment, claim  entitlement  to the benefit of s. 5 of the Act.     Dismissing the writ petitions,     HELD:  The  Punjab  Borstal  Act,  1926  does  not  have application  to  an offence punishable under s. 302  of  the Indian Penal Code. [143G]     The  offence  of murder is punishable  with  death  even though the punishment awarded is not death but  imprisonment for life. [144H]     ’Punishable’  in  s. 2(4) of the Act carries  a  meaning ’liable  to be punished’. Since the offence under s. 302  is punishable with death, the provisions of the Punjab  Borstal Act  would not cover an offence under s. 302 of  I.P.C.  and the benefit would not, therefore, be available to an accused convicted for the offence under s. 302 I.P.C. [145E]     Subhash Chand v. State of Haryana & Ors., [1988I SCC 717 applied; Hava Singh v. State of Haryana & Anr., [1987] 4 SCC 207; State of Andhra Pradesh v. Vallabhapuram Ravi, [1984] 4 SCC 410 and Kunwar Bahadur & Ors. v. State of Uttar Pradesh, [1980] (Supp.) SCC 339, distinguished.                                                    PG NO 141                                                    PG NO 142

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JUDGMENT:     ORIGINAL  JURISDICTION: Writ Petition (Crl.) No. 648  of 1987 etc. etc.     (Under Article 32 of the Constitution of India)     D.S.  Tewatia, Mukul Mudgal, Rakesh Khanna,  P.K.  Jain, R.P.  Singh,  C.V.S.  Rao, Prem  Malhotra,  S.K.  Sabharwal, Mahabir Singh, Mrs. Urmila Kapoor and N. Sudhakaran for  the appearing parties.     The Judgment of the Court was delivered by     RANGANATH MISRA, J. These are a batch of writ petitions under  Article  32 of the Constitution  raising  the  common claim  of  entitlement to the benefit of Section  5  of  the Punjab Borstal Act, 1926.     In each of these writ petitions, the petitioner has been convicted       for the offence punishable under Section 302 of  the Indian Penal Code and   has been sentenced  to  life imprisonment.  The State of Haryana     has challenged  the claim of the petitioner in each of these writ petitions.     Learned counsel for the petitioners has relied upon  the decision  of this Court in Hava Singh v. State of Haryana  & Anr.,  [1987] 4 SCC 207 in support of the claim advanced  in the writ petitions. A two Judge Bench of this Court in  that case referred to Section 5 of the Act and E held:     "On a conspectus of the aforesaid decision as well as on a  consideration  of the facts and  circumstances  the  only conclusion  follows  that  the petitioner  who  has  already undergone actual imprisonment for seven years is entitled to be released from detention and from imprisonment.  Paragraph 516-B  of the Punjab Jail Manual is not applicable  in  this case  as the petitioner who was an adolescent convict  below twenty-one years of age was sent to the Borstal Institute at Hissar  for detention in accordance with the  provisions  of Section  5  of  the  Punjab  Borstal  Act,  1926.  He  being convicted  by  the  Sessions Judge  the  maximum  period  of detention  as prescribed by the Act is seven years. We  have already said hereinbefore that such an inmate of the Borstal Institute  cannot be transferred to jail on the ground  that he has attained the age of twenty-one years as the said  Act does  not  provide  for the same.  The  only  provision  for transfer  to jail is in the case of incorrigible  inmate  or inmates convicted of major Borstal Institution offence."                                                    PG NO 143     Reliance  was  also placed by learned  counsel  for  the petitioners  on  another two-Judge Bench  decision  of  this Court   in   the  case  of  State  of  Andhra   Pradesh   v. Vallabhapuram Ravi, [1984] 4 SCC 410. That was a case  under the Andhra Pradesh Borstal Schools Act, 1925 (5 of 1926) and the  question  for consideration was the same as  here  with reference  to  the provision of Section 8 of that  Act.  The two-Judge  Bench  held that the provisions  of  the  Borstal Schools Act applied to the offence punishable under  Section 302 of the Indian Penal Code.     Both  these cases were referred to in Subhash  Chand  v. State  of Haryana & Ors., [1988] 1 SCC 717 by a  three-Judge Bench.  It referred to Hava Singh’s case (supra) at  length. The  three-Judge  Bench  in its  judgment  referred  to  the definition  of  ’offence’ under Section 2(4) of  the  Punjab Borstal Act which defined ’offence’ to mean--     "an  offence punishable with transportation or  rigorous imprisonment under the Indian Penal Code other than     (a) an offence punishable with death;"     The  Court  found that Section 302 of the  Indian  Penal Code provides:

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   "whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine" and proceeded  to  say  again "one of the  punishments  for  the offence  of murder to death and, therefore, the  offence  of murder  would  be covered within Section 2(4)(i)(a)  of  the Punjab  Act and to such a conviction the Punjab Borstal  Act would  have  no  application. Support for  such  a  view  is available from several decisions of different High Courts".     The Court ultimately held:     "In Hava Singh’s case the definition was not placed  for consideration   before   the  Court  and,   therefore,   the conclusion which has been reached is not correct. The Punjab Borstal  Act  does  not  have  application  to  an   offence punishable under Section 302 of IPC".     This being a decision of a larger Bench we are bound  by it.                                                    PG NO 144     In the Webster’6 Third New International Dictionary  the follow-ing meaning has been given to the word ’punishable’--     "Deserving  of,  or liable to,  punishment:  capable  of being  punished by law or right".    Aiyar’s the Law Lexicon (Reprint Edition 1987) gives  the meaning of ’punishable’ thus:     "The word ’punishable’ as used in statutes which declare that certain offences are punishable in a certain way, means liable to be punished in the way designated."     In  Bouvier’s  Law Dictionary, the meaning of  the  word ’punishable’  has been given as ’liable to  punishment’.  In ’Words   and  Phrases--Permanent  Edition’,  the   following meaning has been given:     "The word ’punishable’ in a statute stating that a crime is  punishable by a designated penalty or term of  years  in the state prison limits the penalty or term of years to  the amount or term of years stated in the statute."     The word ’punishable’ is ordinarily defined as deserving of  or  capable or liable to Punishment, punishable  within statute   providing     that  defendant  may   have   ten peremptory  challenges  if offence charged  is  ’punishable’ with death or by life imprisonment; means       deserving of or liable to punishment; capable of being punished by law or right,  may be punished, or liable to be punished,  and  not must be punished.     ’Corpus Juris Secundum gives the meaning as:     ’Deserving  of,  or liable to,  punishment;  capable  of being punished by law or right; said of persons of offences. The meaning of the term is not ’must be punished’, but  ’may be punished’, or ’liable to be punished’.     In  the absence of a definition of ’punishable’ we  have referred  to  these for gathering the exact meaning  of  the word. In the sense given to the word, as above, there can be no doubt that the offence of murder is punishable with death even  though  the  punishment  awarded  is  not  death   but imprisonment for life.                                                    PG NO 145     An  earlier decision of this Court in Kunwar  Bahadur  & Ors. v. State of Uttar Pradesh, [1980] Supp. SCC 339,  where a  two-Judge Bench dealt with the provisions of  the  United Provinces  Borstal Act 7 of 1938 was also relied  upon.  The judgment   is  a  short  one.  Detailed  reference  to   the provisions of the United Provinces Act has not been made but Section 7 of the Act was referred to and it was observed:     "Under  this Section where a prisoner is  sentenced  for transportation  i.e. life imprisonment and is below the  age of  21  years he should be sent to Borstal School  where  he cannot  be detained for more than five years, The  law  thus

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contemplates that for such an offender the sentence of  five years  will be equivalent even to a higher sentence of  life prisonment".     Obviously  in  the  United Provinces Act,  there  is  no definition  of  ’offence’ as available in  the  Punjab  Act. Therefore, the decision in Kunwar Bahadur’s case (supra)  is not really material for our purpose.     ’Punishable’  carries a meaning ’liable to be  punished’ as  indicated  by the three-Judge Bench. Since  the  offence under  Section 302 is punishable with death, the  provisions of  the Punjab Borstal Act would not cover an offence  under Section  302 of IPC and the benefit would not therefore,  be available  to  an accused convicted for  the  offence  under Section 302 IPC.     During  the hearing of the matters learned  counsel  for the  petitioners had maintained that the provisions  of  the Punjab  Act  should  be  suitably  amended  to  bring  about uniformity  in the law on the subject. This is a matter  for the State and the Legislature and it is for them to consider whether the provision should be suitably amended keeping the modern concept of punishment and treatment of adolescents in view.     Each of the writ petitions is dismissed. There would  be no order for costs P.S.S.                                 Petitions dismissed .