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PETITIONER: C. ELUMALAI

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT26/10/1984

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MISRA, R.B. (J)

CITATION:  1985 AIR  118            1985 SCR  (1)1057  1984 SCC  (4) 539        1984 SCALE  (2)645

ACT:      The Tamil  Nadu Borstal  Schools Act 1925 Section 10-A- Adolescent offender-Convicted  of capital  offence Sentenced to  life  imprisonment-Detention  in  Borstal  School  after attaining 23 years of age-Whether valid.

HEADNOTE:      The State  Government of  Tamil Nadu  cannot  keep  any adolescent offender  who is  convicted of  a capital offence but sentenced  to imprisonment of life in respect of whom an order is  made under  section 10-A of the Tamil Nadu Borstal Schools Act  in a  Borstal School  or in  any other  kind of detention after  he has  attained 23  years of age The State Government is  therefore directed  to release  forthwith all such inmates  of the  Borstal Schools in Tamil Nadu who have attained 23 years of age. [1058E-F]      State of  Andhra Pradesh v. Vallabhapuram Ravi [1984] 2 SCALE 386, followed.      In re.  Ganapati, 1983  Criminal Law Journal 509, over- ruled. ^

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 981 of 1984.      (Under article 32 of the Constitution)      Navin Malhotra and Harjinder Singh for the Petitioners.      K. Parasaram, Attorney General and A. V. Rangam for the Respondent.      The Judgment of the Court was delivered by G      VENKATARAMIAH, J.  We have  heard Shri  Navin Malhotra, amicus curiae and the learned Attorney-General for the State of Tamil  Nadu. In  State of Andhra Pradesh v. Vallabhapuram Ravi 1058 (Criminal Appeal  No. 254  of 1984)  in which  judgment  was delivered on  September 14,  1984 this  Court has  held that adolescent offenders  kept in  a Borstal School by virtue of orders made  by the  State Government  under section 10-A of the Andhra  Borstal Schools  Act, 1925 cannot be detained in

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the Borstal  School or  in any  other place  after they have attained 23  years of  age and that they should be released. The provisions  of the  Tamil Nadu Borstal Schools Act, 1925 are identical  with the  provisions of  the  Andhra  Borstal Schools Act,  1925. In  the judgment  referred to  above the decision of  the Madras  High Court in In re. Ganapati which had taken  the view  that after  section 433A of the Code of Criminal Procedure,  1973 came  into force  a person who was convicted of  an offence  punish able  under section  302 of Indian Penal Code but sentenced to imprisonment for life and who was  by virtue  of an order passed under section 10-A of the Tamil  Nadu Borstal  Schools Act,  1925  detained  in  a Borstal School  could not be released before he completed 14 years  of   detention  has   also  been  overruled.  In  the circumstances it has to be held that the State Government of Tamil Nadu  cannot  keep  any  adolescent  offender  who  is convicted of a capital offence but sentenced to imprisonment of life  in respect  of whom  an order is made under section 10-A of  the Tamil  Nadu Borstal  Schools Act  in a  Borstal School or  in any  other kind  of  detention  after  he  has attained  23   years  of  age.  We,  therefore,  direct  the Government of  the State  of Tamil  Nadu to release all such inmates of  the Borstal  Schools  in  Tamil  Nadu  who  have attained 23 years of age forthwith.      If the  petitioner  C.  Elumalai  satisfies  the  above condition he  is also  entitled to  be released and if he is not in  detention he  shall not  be taken back into custody. The writ petition is accordingly allowed. N.V.K.                                     Petition allowed. 1059