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PETITIONER: HAVA SINGH

       Vs.

RESPONDENT: STATE OF HARYANA & ANR

DATE OF JUDGMENT21/08/1987

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1987 AIR 2001            1987 SCR  (3)1061  1987 SCC  (4) 207        JT 1987 (3)   375  1987 SCALE  (2)345  CITATOR INFO :  *          1986 SC 584  (*)  O          1988 SC 584  (1,2,3,5)  *          1988 SC2235  (5)

ACT:     Punjab Borstal Act, 1926---pre-mature release of convict after seven years’ detention under provisions of--Section 5.

HEADNOTE:     The  petitioner, aged about 18 years, was convicted  for an offence u/s 302/34 I.P.C. and sentenced to life imprison- ment  by judgment and order dated 22nd May, 1980, and  being admittedly  below 21 years of age at the time of  commission of  the offence, was sent to Borstal Institution in  accord- ance with the provisions of the Punjab Borstal Act, 1926.     The  Petitioner filed this writ petition in this  Court, stating  that  the total period of detention  under-gone  by him,  together  with the remissions earned by him,  came  to over  ten  years, and he was entitled to  be  released  both under  the  Punjab Borstal Act as well  as  under  paragraph 516-B of the Punjab Jail Manual. The petitioner,  therefore, prayed  for  his  premature release as  provided  under  the Punjab  Borstal  Act and the paragraph 516-B of  the  Punjab Jail Manual.     On  behalf of the respondents, a  counter-affidavit  was filed by the Superintendent, Rohtak District Jail, where the petitioner was first sent after his conviction and  sentence u/s  302/34 I.P.C., and where he was brought again from  the Borstal  Institute in connection with another case  and  was now being kept, as he had attained the age of 21 years. Allowing the writ petition, the Court,     HELD:  The petitioner was sent to Borstal  Institute  at Hissar  as he was admittedly adolescent at the time  of  his conviction, and was subsequently transferred to the District Jail  at Rohtak to undergo the sentence of imprisonment  for life. [1064C]     It  appears from the objects and reasons of  the  Punjab Borstal Act, 1926, that the object of the Act is to  provide for  the segregation of the adolescent prisoners from  those of  more mature age, and their subsequent training in  sepa- rate Borstal Institutions meant for detaining the adolescent

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offenders and for imparting to them industrial training and 1062 subjecting them to such disciplinary and moral influence  as will conduce to their reformation. [1064C-E]     Under section 5 of the Act above-said, either a Sessions Judge  or a Magistrate of first class or a  Magistrate  spe- cially  empowered under section 30 of the Code  of  Criminal Procedure,  after  convicting  any male  person,  less  than twenty-one  years  of  age, of an  offence  punishable  with imprisonment  for life or transportation or  other  rigorous imprisonment, or in the case of a convict who is ordered  to give  security for good behaviour and he fails to give  such security,  may in lieu of passing a sentence of  transporta- tion  or  rigorous imprisonment pass an order  of  detention which  shall not be less than two years and more than  seven years  when an order is passed by a Court of Sessions  or  a Magistrate. The petitioner, when he was convicted u/s 302/34 I.P.C.  and sentenced to imprisonment for life, was  adoles- cent being less than twenty-one years of age and was sent to the  Borstal Institute in accordance with the provisions  of the  Punjab Borstal Act, 1926. On his attaining the  age  of about twenty-one years, he was transferred back to the jail. There is no provision except section 20 in the said Act  for transferring back an adolescent convict on his attaining the age  of twenty-one years from the Borstal Institute to  jail for  undergoing the unexpired term of imprisonment.  On  the other hand, under section 5 of the Act an adolescent convict under  twenty-one  years  of age, after the  expiry  of  his period  of detention, has to be released from detention  and he  is  not  to be transferred to jail  for  undergoing  the unexpired period of his sentence of imprisonment. Section 20 empowers the State Government’ to commute the residue of the term of detention of an inmate of the Borstal Institute, and also  order his transfer to any jail in Punjab  to  complete the said term of imprisonment when such an inmate is report- ed to be incorrigible or is exercising bad influence on  the other  inmates of the Institution or has committed  a  major Borstal Institution offence as provided in the rules.  There was nothing to show that the petitioner had been even  found to  be incorrigible or to be exercising a bad  influence  on the other inmates of the Institution, etc., as stated above, and  the State Government had not passed any order  for  his transfer  to the jail as mentioned above.  [1065E-H;  1066A, D-F]     On  a  conspectus of the decision of this Court  in  the State  of  Andhra Pradesh v. Vallabhapuram  Rani,  [1984]  4 S.C.C. 410, and on a consideration of the facts and  circum- stances  of the case, the only conclusion that followed  was that  the petitioner, who had already undergone  actual  im- prisonment for seven years, was entitled to be released from detention  and imprisonment. Paragraph 516-B of  the  Punjab Jail     1063 Manual  was not applicable in this case. The Court  directed the respondents to release the petitioner from  imprisonment forthwith. [1067C-D; G]     State   of   Andhra  Pradesh  v.   Vallabhapuram   Rani, [1984]4S.C.C. 410, referred to.

JUDGMENT:     ORIGINAL  JURISDICTION: Writ Petition (Criminal)  No.668 of 1986. (Under Article 32 of the Constitution of India).

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R.K. Jain and R.P. Singh for the Petitioner. C.V.S. Rao for the Respondents. The Judgment of the Court was delivered by     B.C. RAY, J. The petitioner who was aged about 18  years along with one Subeh Singh was involved in a case of  murder of one Ranbir Singh and he was convicted for an offence U  s 302 34 I.P.C. and sentenced to life imprisonment by judgment and order dated 22nd May, 1980. The petitioner being  admit- tedly  below 21 years of age at the time of alleged  commis- sion  offence was sent to Borstal Institution in  accordance with the provisions of Punjab Borstal Act, 1926. It has been stated that the petitioner has already undergone a period of about  6 years, 10 months and 11 days detention in jail  and together  with remissions earned by him it comes to over  10 years. It has been further stated that he is entitled to  be released both under the Punjab Borstal Act as well as  under paragraph 5 16-B of the Punjab Jail Manual and has therefore prayed  for  his pre-mature release as  provided  under  the Punjab  Borstal Act and also under paragraph 5 16-B  of  the Punjab Jail Manual. In the counter-affidavit filed on behalf of  the  respondent sworn by one Shri  Ram  Chander  Sarwan, Superintendent of District Jail at Rohtak it has been stated that  the  petitioner was convicted and  sentenced  to  life imprisonment U,S 30234 I.P.C. on 22.5. 1980 by the  Sessions Judge,  Rohtak and he was sent to District Jail,  Rohtak  to undergo  the sentence passed upon him. It has  been  further stated that at the time of conviction he was 19 years of age and  as such he was sent to B.I. & J. Jail, Hissar.  He  was transferred  back  to this Jail (Rohtak  District  Jail)  on 16.12.  1981  for  trial in IInd  case  (FIR  No.III,78  U/s 452/325/34  I.P.C.). He was acquitted in this IInd case  and as  he was about 21 years of age so he was kept in the  Jail to  undergo the life imprisonment imposed upon him on  22.5. 1980. It has 1064 been further averred that after the amendment of the  Crimi- nal  Procedure Code the petitioner being sentenced  to  life imprisonment has to undergo 14 years of substantive sentence U/s 433-A of the Code before his case can be considered  for pre-mature release. The detail of sentence undergone by  the petitioner  as  on 22.12. 1986 was also given  in  the  said affidavit wherefrom it appears that he has already undergone 7  years,  3 months and 3 days actual sentence  upto  22.12. 1986.  It  has  therefore been stated  that  the  petitioner having not undergone 14 years of actual sentence, he can not be released pre-maturely.     It is evident from the averments made in the writ  peti- tion  as  well  as in the said  counter-affidavit  that  the petitioner who was admittedly adolescent at the time of  his conviction  was sent to Borstal Institute at Hissar.  Subse- quently,  he  has been transferred to the District  Jail  at Rohtak  and is undergoing the sentence of  imprisonment  for life.  It  appears from the objects and  reasons  of  Punjab Borstal  Act, 1926 that the object of the Act is to  provide for  segregation of adolescent prisoners from those of  more mature age, and their subsequent training in separate insti- tutions. These Borstal Institutions are meant for  detaining adolescent  offenders and to impart to them such  industrial training  and  other instructions and subject them  to  such disciplinary  and moral influence as will conduce  to  their reformation. This is evident from the provisions of  section 2(1) of Punjab Borstal Act, 1926. Sub-section (2) of section 2  defines  ’detained’  as detained in  and  ’detention’  as detention  in a Borstal Institution. Section 5 of  the  said Act which is very vital for the purpose of decision of  this

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case is quoted hereinbelow:-               "5.  Powers  of courts to pass a  sentence  of               detention in a Borstal Institution in the case               of a convict under twenty-one years of age  in               lieu  of transportation or rigorous  imprison-               ment--(1)  When  any  male  person  less  than               twenty-one  years  of age is convicted  of  an               offence  by a court of sessions, a  Magistrate               specially  empowered under section 30  of  the               Code  of Criminal Procedure, 1898, or a  Judi-               cial  Magistrate  of the first  class,  or  is               ordered  to give security for  good  behaviour               and  fails to give such security, and when  by               reason of his criminal habits or tendencies or               associations with persons of bad character  it               is  expedient in the opinion of the  Judge  or               Magistrate,  that he should be detained,  such               Judge or Magistrate may, in lieu of passing  a               sentence of transportation or rigorous impris-               onment, pass an order of detention for a  term               which  shall  not be less than two  years  and               shall not exceed seven years when the order                   1065               is  passed by a court of sessions or a  Magis-               trate specially empowered under Section 30  of               the  Code  of Criminal  Procedure,  1898,  and               shall  not be less than two years  nor  exceed               three  years,  when the order is passed  by  a               Judicial’ Magistrate of the first class not so               empowered.                        (2) When any Judicial Magistrate  not               empowered  to pass such order, is  of  opinion               that an offender convicted by him is a  person               in respect of whom such order should be passed               in  accordance  with the  provisions  of  sub-               section  (1),  he  may,  without  passing  any               sentence,  record such opinion and submit  his               proceedings  and  forward the accused  to  the               Chief Judicial Magistrate to whom he is subor-               dinate.                        (3) The Chief Judicial Magistrate  to               whom the proceedings are so submitted may make               such  further enquiry (if any) as he may  deem               fit  and pass such order for the detention  of               the offender or such other sentence or  order,               as he might have passed if the trial had  been               held by him from its commencement."     Thus it is manifest from Section 5 of the said Act  that either a Sessions Judge or a Magistrate of first class or  a Magistrate specially empowered under Section 30 of the  Code of  Criminal Procedure after convicting any male person  who is less than twenty-one years of age, of an offence punisha- ble  with imprisonment for life or transportation  or  other rigorous imprisonment or a convict is ordered to give  secu- rity for good behaviour and fails to give such security, may in lieu of passing a sentence of transportation or  rigorous imprisonment  pass an order of detention which shall not  be less than two years and shall not exceed seven years when an order  is  passed  by a court of sessions  or  a  Magistrate specially  empowered under the Code of  Criminal  Procedure. The petitioner who was adolescent admittedly being less than twenty-one years of age at the time of his conviction though convicted  U/s 302/34 I.P.C. and sentenced  to  imprisonment for  life, was sent to the Borstal Institute  in  accordance with  the  provisions of Punjab Borstal Act,  1926.  On  his

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attaining  the age of about twenty-one years he  was  trans- ferred  back to the Jail. There is no provision except  sec- tion 20 under the said Act for transferring back an  adoles- cent  convict on his attaining the age of  twenty-one  years from the Borstal Institute to Jail for undergoing the  unex- pired  term  of imprisonment. On the other hand on  a  plain reading of section 5 it is clear that the adolescent convict under twenty-one years of age after expiry of his period  of detention 1066 has to be released from detention and he is not to be trans- ferred  to Jail for undergoing the unexpired period  of  his sentence  of imprisonment. Section 20 of the said Act is  in the following terms:-               "20. Incorrigibles--Where an inmate is report-               ed  to  the State Government by  the  visiting               committee to be incorrigible or to be exercis-               ing  a bad influence on the other  inmates  of               the institution or is convicted under  section               19 of this Act or is reported by the  Superin-               tendent to have committed an offence which has               been declared to be major Borstal  Institution               offence by rules made by the State  Government               in pursuance of the provisions of  sub-section               (14)  of  section 34 of this  Act,  the  State               Government  may  commute the  residue  of  the               terms  of detention to such term of  imprison-               ment of either description not exceeding  such               residue  as the State Government  may  direct,               and  may order the transfer of the  inmate  to               any  jail in Punjab in order to  complete  the               said term of imprisonment."     This  section empowers the State Government  to  commute the residue of the term of detention of an inmate in Borstal Institute to such term of imprisonment of either description not exceeding the residue as the State Government may direct and  also  to order transfer of the inmate to  any  jail  in Punjab  in order to complete the said term  of  imprisonment when  such an inmate is reported to be incorrigible  or  his exercising bad influence on the other inmates of the  Insti- tution  or  such  an inmate has committed  a  major  Borstal Institution  offence  as  provided in the  rules.  There  is nothing  to  show that the petitioner was ever found  to  be incorrigible  or  to be exercising a bad  influence  on  the other inmates of the Institution or is found to have commit- ted  any  major Borstal Institution offence  and  the  State Government  has not passed any order for his  transfer  from the  Borstal Institution to Jail for undergoing the  residue of his term of imprisonment.     This  Court while considering an identical case  in  the State  of  Andhra  Pradesh v. Vallabhapuram  Ravi  [1984]  4 S.C.C. 410 has observed that "a person detained in a Borstal School  under section 10-A has to be released after  he  has served  the  full  term of 5 years of detention  or  on  his completing  23  years  of age. He  cannot  be  retransferred thereafter  to  prison. Such a retransfer would  defeat  the very  object and purpose of the Act of providing for  deten- tion of young offenders in Borstal School for the purpose of reformation and rehabilitation of such offenders." It is  to be noted in this connection that     1067 sentence  of  detention  is passed in lieu  of  sentence  of imprisonment which may have been passed. Hence the detention order U/s 5 of the said Act is not imprisonment and  Borstal School  where the adolescent offender is detained is  not  a

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prison.  It  has also been observed  further  that  "Section 433-A,  Cr. PC would not operate where a person is  detained by an order under Section 10-A of the Act. Section 433-A  of the Code was introduced not to set at naught provisions like 10-A of the Act which dealt with a special class of  offend- ers  like adolescent offenders but only to  regulate  capri- cious and arbitrary decisions under Section 432 of the  Code and  the remission rules sometimes reducing the sentence  of imprisonment  for life imposed on persons who had been  con- victed of capital offences but had been sentenced to impris- onment for life to short periods like five to six years."     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 5  16-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 convict- ed 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  con- victed of major Borstal Institution offence. The  petitioner who  was’ detained in a Borstal Institute is entitled to  be released  and  to be set free as he  has  already  undergone detention for a period of seven years. The Writ Petition  is therefore  allowed. The respondents are directed to  release the petitioner from imprisonment forthwith. There will be no order as to costs. S.L.                                                Petition allowed. 1068