http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16  

PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: VALLABHAPURAM RAVI

DATE OF JUDGMENT14/09/1984

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1985 AIR  870            1985 SCR  (1) 729  1984 SCC  (4) 410        1984 SCALE  (2)386  CITATOR INFO :  F          1987 SC2001  (5)             1988 SC 584  (*)  D          1988 SC 584  (2)             1988 SC2235  (4)

ACT:      Code of  Criminal Procedure,  1973-S.433A-Whether  bars release of  an adolescent  offender transferred  to  Borstal School under s.10-A of the Andhra Borstal Schools Act, 1925, as amended, after he has attained age of 23 years.      Andhra Borstal  Schools Act,  1925-S 10-A introduced by the Madras Borstal Schools (Amendment) Act, 1939 (Madras Act XIII of  1939)-S.10-A not affected by S. 433A of the Code of Criminal Procedure, 1973 and must be given full affect to.

HEADNOTE:      The respondent,  an adolescent,  was convicted  for  an offence punishable  under section  302 of  the Indian  Penal Code and  sentenced to  imprisonment  for  life.  After  the respondent had  undergone the sentence for a few months in a prison, he  was ordered  to be  detained in a Borstal School under an  order made by the appellant State Government under section  10-A  of  the  Andhra  Borstal  Schools  Act,  1925 (hereinafter referred  to as  ’the Act’)  to serve unexpired portion of  the sentence  till he  attained the  age  of  23 years.  Since   the  respondent  was  not  released  on  his attaining the age of 23 years, the respondent filed a habeas corpus petition  in the  High Court.  The High Court allowed the petition  and directed  the  appellant  to  release  the respondent. Hence  this appeal  by the  State Government  by special leave.  The appellant  contended that in view of the mandate of  section 433A  of the Code of Criminal Procedure, 1973 any  person who  was sentenced to imprisonment for life for an  offence for  which death  was one of the punishments provided by  law could not be released from prison unless he had served  at least 14 years of imprisonment even though by an order  made under  section 10-A  of the  Act he  had been detained in a Borstal school.      Dismissing the appeal, ^      HELD: The  appellant’s contention  overlooks the  words ’prison’ and  ’imprisonment’ in section 433A of the Code and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16  

the effect  of an  order made  by the State Government under section 10-A of the Act read with section 8 thereof. Entry 4 of List II of the Seventh Schedule to the Constitution which reads as  "4. Prisons,  reformatories, Borstal  institutions and  other  institutions  of  a  like  nature,  and  persons detained therein.  . .  " also makes a distinction between a prison and  a Borstal  institution. Section 433A of the Code refers to  a person who is actually undergoing imprisonment. As soon as order is made under s. 10-A of the Act 730 in respect  of a person who is sentenced to imprisonment for life, and  he is  sent to a Borstal school pursuant thereto, he ceases to be a prisoner undergoing imprisonment. He would be a  detenu in  a Borstal  school  and  the  provisions  of section 8 of the Act will have to be given their full effect in his  case also.  It is  true that  there is some apparent contradiction between the two sentences of section 10-A. But having regard  to the  object of  the  legislation  and  the meaning of  the words  ’as if’  in the  second sentence,  we should extend  all the  privileges available  to an offender detained under  section 8  of the  Act to  a prisoner who is directed to be transferred to a Borstal school under section 10 A.  Under section  8 of  the Act the person detained in a Borstal school  can be  kept there  for a  maximum period of five years  and in no case after he has attained 23 years of age. There  is no  provision for  sending him back to prison except section 14 of the Act which will not be applicable to a  person   against  whom   no  report   is  made   by   the Superintendent of  a Borstal  school as  stated therein.  If section 14  of the Act is inapplicable there is no legal way in which  he can  be sent  back to  prison  to  satisfy  the requirements of  section 433A  of  the  Code,  Moreover,  an anomalous situation  which arises  in the  case of  a person sent to  a Borstal  school under  section 10-A of the Act is that if  the period  of detention in a Borstal school is not to  be   counted  as  the  period  of  imprisonment  because detention is  ordered in  lieu of  imprisonment and  because Borstal school is not a prison then such person cannot claim by way of credit the period of detention in a Borstal school while computing the fourteen years of imprisonment mentioned in section  433A of  the Code.  If that  is  so,  should  he undergo an  extra period  of imprisonment  equivalent to the period of  his detention  to make  good  the  deficiency  to satisfy the requirements of that section ? That would hardly be a proper thing to be demanded of him.                     [743F-H; 744A-E]      Emperor v.  Lakshman Shivram,  A.I.R.  1933  Bom.  461. (FB), referred to.      In re  T. Muniratnam  Reddi &  Anr., A.I.R  1955 Andhra 118. In re. Krishnaswami alias Kittan, A.I.R. 1949 Mad. 109. In re.  Periyaswami Asari,  A.I.R. 1949 Mad. 223 and Kesavan v. State of Kerala, 1957 K.L.G. 1049, overruled.      If every  person who  is transferred under section 10-A of the  Act to  a Borstal school is to remain there until he serves out  the entire  period of imprisonment for life, the Borstal school  would soon  become a  prison  consisting  of ’lifers’ and  its  other  inmates  who  are  detained  under section 8  of the  Act would  be keeping  company with adult offenders, thus  defeating the very object of establishing a Borstal school.  The Court should as far as possible avoid a construction which  will make  the legislation  futile.  The second reason  is that  the words  ’as if’  appearing in the second sentence  in section 10-A make it a deeming provision and such  deeming provision  should in law be carried to its logical end. [740E-G]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16  

    East  End   Dwellings  Co.  Ltd.  v.  Finsbury  Borough Council, [1952] A.C. 109 at p. 132. referred to. 731      If a  person detained in a Borstal school under section 10-A of  the Act is to be re-transferred to the prison after he serves  out the  full term  of detention in the school it will defeat  the very  object and  purpose  of  the  Act  of providing for  detention of  young offenders  in  a  Borstal school for  the purpose of reformation and rehabilitation of such offenders  and that person who is detained in a Borstal school has  to be  released if  he has completed 23 years of age.                                                [741G-H]      Bondili Jagannath  Singh v.  The Government  of  Andhra Pradesh. 1983 (2) Andhra Pradesh Law Journal 262, upheld.      In the  instant case,  the Andhra  Borstal Schools Act, 1925, which  specifically deals  with the  case of  a  small section of  persons namely adolescent offenders traceable to the legislative power derived from the expressions ’Prisons’ and ’Borstal  institutions’ in Entry 4 of the State List and which is  a local law, prevails on all the provisions of the Code including  section 433A  of the  Code as  there  is  no provision which  excludes the  operation of  the  Act  which deals with  Borstal institutions.  Section 433A  of the Code was introduced  not to set at naught provisions like section 10-A of  the  Act  which  dealt  with  a  special  class  of offenders like  adolescent offenders  but only  to  regulate capricious 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 convicted for  capital offences  but had  been sentenced  to imprisonment for  life to  short periods  like five  to  six years.  [747E-H]      Maru Ram  etc. etc.  v. Union of India & Anr., [1981] 1 S.C.R. 1196, explained and distinguished.      Section 433A  of the  Code would not operate in respect of persons dealt with under section 10-A of the Act and that Parliament never  intended while  enacting section  433A  to deny the  benefit available  to adolescent  offenders  under section 10-A  of the Act. Therefore, section 10-A of the Act remains unimpaired  and it  has to be given full effect even after the enactment of section 433A of the Code. [749C-D]      In  re   Ganapati,  1983   Criminal  Law  Journal  509; overruled.      Kunwar Bahadur  & Ors  v. State  of Uttar  Pradesh, AIR 1979 S.C. 1509, referred to. (Per Sabyasachi Mukharji, J.)      There is  some anomaly  in section  10-A of  the Andhra Pradesh Borstal  Schools Act,  1925. It  empowers the  State Government to  ’transfer adolescent  offenders sentenced  to transportation to  Borstal School’. It further provides that if the  State Government  is satisfied  that any  adolescent offender might with advantage be detained in Borstal School, direct that  such offender shall be transferred to a Borstal School, ’there  to serve  the  whole  or  any  part  of  the unexpired residue of the sentence’. (emphasis supplied). The section further  stipulates that  the provisions of the said Act should apply to such offender ’as if 732 he had  been originally  sentenced to detention in a Borstal School’. My  learned  brother  has,  with  the  aid  of  the principle enunciated  by Lord  Asquith in East End Dwellings Court. Ltd.  v Finsbury  Borough Council,  deemed  that  the original  sentence  of  transferring  the  petitioner  to  a Borstal School  has been  passed by the Court at the time of imposing sentence  originally. But  in fact  in passing  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16  

order under  section  10-A  expression  used  by  the  State Government is  that the  person concerned should be detained in ’Borstal  School’ to  serve the  unexpired portion of the sentence till  he attains  the  age  of  23  years.  So  the sentence actually  passed by  the enabling  section  by  the State Government  directs the detenu ’to serve the unexpired portion of  the sentence’.  Therefore we  have to deem as if the sentence  was passed  by the  court at  the time  of the passing of  the original  sentence by the court. In a matter of this  nature, the  statute should be more specific and in that view  of the matter, the Government should consider the question of  either altering the language of section 10-A of the Act  or be  more specific while passing any orders under section 10.A of the. [750E-H]      East End  Dwellings Co.  v. Ltd.  v.  Finsbury  Borough Council, [1952] Appeal Cases 109 at p. 132, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 254 of 1984.      Appeal by  Special leave  from the  Judgment and  order dated the  29th November,  1983 of  the Andhra  Pradesh High Court in W.P. No. 6601 of 1983      P. Ram Reddy, G. Narasimhlu for the Appellant.      A. Subba Rao for the Respondent.      The following Judgments were delivered      VENKATARAMIAH, J.  The main  question involved  in this appeal by  Special Leave is whether on the coming into force of section  433A of  the Code  of Criminal  Procedure,  1973 (hereinafter  referred  to  as  ’the  Code’)  an  adolescent offender who  is sentenced to imprisonment for life on being convicted of  an offence  for which death is also one of the punishments prescribed  by law  and who  later on  is by  an order made  by the State Government directed to be sent to a Borstal School  under section  10-A of  the  Andhra  Borstal Schools Act,  1925 (hereinafter referred to as ’the Act’) is liable to  be kept  in a  Borstal School  or in  a prison at least for a period of fourteen years. 733      The respondent Vallabhapuram Ravi was born or April 28, 1960. Unfortunately  owing to  an incident  which took place when he  was still  in his  teens, he  was convicted  of  an offence punishable  under section  302 of  the Indian  Penal Code and  sentenced to  imprisonment for  life on  April 29, 1980 in  the Sessions Case No. 51 of 1980 on the file of the Sessions Judge,  Guntur in  the State  of Andhra Pradesh. On September 12, 1980 the State Government of Andhra Pradesh on being satisfied  that it  would be  to the  advantage of the respondent if he was transferred to a Borstal School made an order under  section 10-A  of the  Act in  G.O. Rt. No. 2394 Home  (Prisons-B)   Department  dated   September  12,  1980 directing that  he should be detained in a Borstal School to serve the unexpired portion of the sentence till he attained the age  of 23  years. Accordingly he was transferred to the Borstal School  at Visakhapatnam  on October  14, 1980.  The respondent was  classified as  a Special  Star Grade  Inmate which  was  the  highest  classification  on  the  basis  of industrious and  good conduct under section 19-C of the Act. Since he  was not  released on his attaining 23 years of age on April  28, 1983  in accordance  with the  decision of the High Court  of Andhra  Pradesh in Bondili Jagannath Singh v. The Government  of Andhra  Pradesh he  sent a  letter to the High Court  of Andhra  Pradesh requesting it to issue a writ

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16  

of habeas corpus to the State Government to release him. The High Court  treated the  letter as a writ petition and after hearing the  State Government  passed an  order on  November 29,1983 in  Writ Petition  No. 6601  of 1983  directing  the States Government  to release  the respondent.  Aggrieved by the decision  of the  High Court,  the State  Government has filed this appeal under Article 136 of the Constitution.      Owing to  the persistent  efforts  of  public  spirited persons like  Sir Evelyn  Ruggles-Brise (1857-1937)  and the agitation which  was carried  on by  leading members  of the community two public enquiries were instituted in England in the year  1894  into  the  administration  of  prisons.  The enquiries revealed  that in  England annually  about  20,000 young criminals  belonging to the age group of 16 to 21 were being admitted  into prison  by the  end of the last century and that  it was  necessary to  find a remedy to prevent the inflow of  such large  number of  youngmen into  the prisons lest they  should turn  out to  be professional criminals in later years on account of the pernicious 734 influence the  prison life  and the  close association  with other adult  prisoners would  have on  them. This led to the passing of  two laws  by the British Parliament, namely, the Prevention of  Crime (Borstal)  Act, 1908  and the  Children Act, 1908.  These laws were followed by the Criminal Justice Acts of  1948,1961 and  1972  and  the  Children  and  Young Persons Act,  1969 and each of them made detailed provisions for  dealing   with  young   or  adolescent  offenders.  The principle underlying  these laws  was that  if  children  or adolescents found  to be  guilty  of  offences  by  criminal courts were  in lieu  of ordinary  sentence of  imprisonment kept in  a special form of detention in a place other than a prison, of  which  the  purpose  was  to  develop  mentally, physically and  morally all inmates by giving them necessary training, there  was every  likelihood of such persons being reformed and  accepted by  society as  persons  who  had  no inclination to commit crimes in the future. It was generally felt that every offender upto a certain age "May be regarded as a potentially good citizen; that his lapse into crime may be  due   either  to   physical  degeneracy  or  had  social environment; that  it is  the duty  of the State at least to try to  effect a cure, and not to class the offender offhand and without experiment with the adult professional criminal" (See Encyclopaedia  Britannica, 1962  Edn., Vol. III at page 923). This  system of  treatment of  juvenile or  adolescent offenders came  to be  called the ’Borstal System’ after the village  of  Borstal  in  Kent  (England)  where  the  early experiments on  boys between  the ages  of 16  and  21  were carried out  in an  old convict prison before the passing of the  above  mentioned  Acts  of  1908.  The  Borstal  System subsequently  became   popular  in   all  the   Commonwealth countries and  was introduced  through laws  passed for  the purpose of  achieving its  object. One  such law  is the Act which was  enacted in  the year 1925. Its object was to make provision for  the establishment  and regulation  of Borstal Schools for  detention and training of adolescent offenders. The relevant  provisions of  the Act i.e. sections 2 (1) and (2), 8 and 10-A are extracted below for ready reference:      "2. In  this Act, unless there is anything repugnant in      the subject or context:-           1.   "Adolescent offender"  means any  person  who      has been  convicted  of  any  offence  punishable  with      imprisonment  or   who  having  been  ordered  to  give      security under 735

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16  

    section 106  or 118  of the  Code of Criminal Procedure      has failed  to do  so and  who  at  the  time  of  such      conviction or failure to give security is not less than      16 nor more than 21 years of age;      2.   "Borstal  School"   is  a  corrective  institution      wherein  adolescent   offenders,  whilst   detained  in      pursuance  of  this  Act,  are  given  such  industrial      training and  other instruction and are subject to such      disciplinary and  moral influences  as will  conduce to      their    reformation     and    the    prevention    of      crime:............ "           "8. Power  of Court to pass sentences of detention      in Borstal  School.-Where it  appears to a Court having      jurisdiction under this Act that an adolescent offender      should, by reason of his criminal habits or tendencies,      or association with persons of bad character be subject      to detention  for such  term and under such instruction      and  discipline   as  appears  most  conducive  to  his      reformation and  the repression  of crime,  it shall be      lawful for  the Court, in lieu of passing a sentence of      imprisonment,  to  pass  sentence  of  detention  in  a      Borstal School  for a term which shall not be less than      two years  and shall  not exceed  five years  but in no      case extending  beyond the date on which the adolescent      offender will,  in the  opinion of the Court attain the      age of twenty three years;           Provided that,  before passing  such sentence, the      Court shall consider any report of representation which      may  be   made  to   it   including   any   report   or      representation made  by the  probation officer  of  the      area in  which the  offender permanently resided at the      time  when   he  committed   the  offence   as  to  the      suitability of  the case  for treatment  in  a  Borstal      School and shall be satisfied that the character, state      of health  and mental  condition of  the  offender  and      other circumstances  of the  case  are  such  that  the      offender is  likely to  profit by  such instruction and      discipline as aforesaid."           "10-A.  Power  of  State  Government  to  transfer      offenders  sentenced   to  transportation   to  Borstal      Schools. The  State Government  may, if  satisfied that      any offender who has 736      been sentenced to transportation either before or after      the passing  of madras Borstal Schools (Amendment) Act,      1939, and  who at  the time  of conviction was not less      than 16  nor more  than 21  years of  age,  might  with      advantage be  detained in a Borstal School, direct that      such offender  shall be transferred to a Borstal School      there to  serve the  whole or any part of the unexpired      residue of  his sentence.  The provisions  of this  Act      shall  apply  to  such  offender  as  if  he  had  been      originally sentenced to detention in a Borstal School.           An  order   may  be   made  under   this   section      notwithstanding that the sentence of transportation has      been  subsequently   commuted  into   a   sentence   of      imprisonment."      Any person  who is not less than 16 years nor more than 21 years  of age on the date of his conviction of an offence punishable with  imprisonment or  who having been ordered to give security  under section  106 or section 117 of the Code fails to  furnish such  security is considered an adolescent offender under  the Act.  When such an offender is convicted of an offence punishable with imprisonment it is the duty of the court  convicting him  to consider whether having regard

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16  

to his  criminal habits  or tendencies  or association  with persons of  bad character  he should  be detained  for  such period and  under such instruction and discipline as appears most conducive  to his  reformation and repression of crime. If the  Court considers that it is desirable to do so it may in substitution  of the  sentence  of  imprisonment  pass  a sentence of  detention in  a Borstal School for a term which shall not  be less  than two years and shall not exceed five years. In  no case  he can  be detained  in a Borstal School beyond the age of twenty three years. This outer limit of 23 years of  age was  introduced by  an amendment  made by  the Madras Borstal Schools (Amendment) Act, 1936 (Madras Act XIX of 1936).  Before passing  such order of detention the court should satisfy  itself about  matters set out in the proviso to section  8 of  the Act  including any  report made by the Probation officer of the area concerned. It is seen that the sentence of  detention is  passed in lieu of the sentence of imprisonment which may have been passed. Hence the detention ordered under  the above  provision is  not imprisonment and the Borstal School where the adolescent offender is detained is not a prison. 737 This is  also the view taken by Beaumont, C.J. in Emperor v. Lakshman Shivram  which was  a case arising under the Bombay Borstal Schools  Act, 1929.  Merely because section 5 of the Act has  made the  Prisons Act, 1894 and Prisoners Act, 1900 applicable  to   a  Borstal  School  regarding  matters  not otherwise provided  for does  not make  it a  prison or  its inmates  prisoners..   The  period   of  detention   has  no relationship to the sentence of imprisonment that could have been imposed  under law.  It is  based on the opinion of the court as  to what  is conducive  to the  reformation of  the person detained  and the  repression of  the crime and in no case it  can exceed  five years or can be beyond the date on which the  person attains  23 years  of age. Section 10-A of the Act  which was  introduced by the Madras Borstal Schools (Amendment) Act,  1939 (Madras  Act XIII  of 1939)  provides that the  State Government,  if satisfied  that any offender who has  been sentenced  to imprisonment for life and who at the time of conviction was not less then 16 years of age nor more than  21 years of age might, with advantage be detained in a  Borstal Schools,  direct that  such offender  shall be transferred to a Borstal School, there to serve the whole or any part  of the  unexpired period  of sentence.  The second sentence in  section 10-A of the Act is a deeming provision. It provides  that the  provisions of  the Act shall apply to such offender  as if  he had  been originally  sentenced  to detention in  a Borstal School. In view of this clause it is contended and  we feel  rightly that it would not be open to detain a person in a Borstal School beyond the age of twenty three years,  nor can  he be  sent back to the prison except under section  14 of  the Act.  Section 14  of the Act reads thus:           "14. Transfer  of incorrigibles  etc. to  prisons.      Where a person detained in a Borstal School is reported      to the  State Government  by the Superintendent of such      School to  be incorrigible  or to  be exercising  a bad      influence on  the other inmates of the school or in the      case of  person directed  to sent  to a  Borstal School      before the  commencement of  the Madras  Borstal School      (Amendment) Act, 1966, to be over twenty three years of      age, the  State Government  may commute  the  unexpired      residue of  the term  of  detention  to  such  term  of      imprisonment  of   either  description   as  the  State      Government may determine, but in no case exceeding:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16  

738      (a)  such unexpired residue, or      (b)  the maximum  period of  imprisonment fixed for the      offence or the failure to give security as the case may      be, or      (c)  the maximum period of imprisonment which the Court      that tried him had authority to award under the Code of      Criminal Procedure, 1898, whichever is shortest."      While construing  section 14 of the Act we may omit the unnecessary words  ’or in  the case of person directed to be sent to  a Borstal  School before  the commencement  of  the Madras Borstal  Schools (Amendment) Act, 1936, to be over 23 years of  age’ as  they do not apply to a person who is sent to a  Borstal School  after the  commencement of  the Madras Borstal Schools (Amendment) Act, 1936. These words had to be introduced to  remove the  anomaly that would have arisen by the amendment  made to  section 8  by the  same Amending Act providing that  no person  could be kept in a Borstal School after he had attained 23 years of age and to deal with cases of persons who had already been detained in a Borstal School and who  had crossed  23 years  of age.  Hence omitting  the above words what section 14 of the Act means is that where a person detained in a Borstal School is reported to the State Government by  the  Superintendent  of  such  School  to  be incorrigible or  to be  exercising a  bad influence  on  the other inmates of the School the State Government may commute the unexpired residue of the period of detention which in no case can  be for  more than  five  years  to  such  term  of imprisonment of  either description  as the State Government may determine,  but in  no case exceeding (a) such unexpired residue, or (b) the maximum period of imprisonment fixed for such offence  or the  failure to  give security, as the case may be,  or (c) the maximum period of imprisonment which the Court that  tried him had authority to award under the Code, Whichever is shortest. It is obvious from the foregoing that even in  the case of a person who is convicted of an offence punishable for imprisonment for life, but who is detained in a Borstal  School by  virtue of  an order  made by the State Government under  section 10-A  of the  Act, the  period  of imprisonment that can be substituted by the State Government in the  place of  the period of detention cannot exceed five years in  any event. This this the only provision in the Act which authorises  the State Government to shift a person who is in a Borstal School to a 739 prison and  even here  it is possible only where there is an adverse report  against him  by the  Superintendent  of  the Borstal Schools a stated therein.      I may  here refer  to some  of the  decisions having  a hearing on the effect of an order made under section 10-A of the Act,      In in  re T.  Munirathnam Reddi  & Anr. Subba Rao, C.J. dealing with  the case  of an  adolescent offender  who  was convicted under  section 302  of the  Indian Penal  Code and sentenced to transportation for life observed thus:           "In this  case, we  are  satisfied  that  the  1st      accused is not a hardened criminal. He was a student of      Sri Venkateswara  College and was below 21 years at the      time he  was convicted  of the  offence. We  have  also      found that  he shot the deceased when he abused him and      his father  presumably when  they questioned  him about      his conduct  in insulting  his mother. The act was done      by an  young man  of good  antecedents in  an emotional      state. In  our view.  s. 10-A,  Borstal Schools  Act is      really intended to govern the case of such accused. We,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16  

    therefore,  while   sentencing  the   Ist  accused   to      transportation for  life, recommend  his  case  to  the      Government to  take action  under S. 10-A and to commit      him to the Borstal School for such period as they think      fit."      The above  decision shows that the High Court of Andhra Pradesh was  of the  view that  on  making  an  order  under section 10 A of the Act, the State Government could commit a person sentenced  to transportation  for life  to a  Borstal School for  such period as it thought fit. The High Court of Madras has  also passed similar orders in In re. Krishnawami alias Kittan  and in  In the.  Periyaswami Asari. It is true that the  Kerala High  Court has held in Kesavan v. State of Kerala that  a person  above 16 and below 21 years of age at the time  he committed  murder and sentenced to imprisonment for life could be detained in a Borstal School under section 10-A of the Act but he has to serve the whole or any part of the unexpired  residue of  his sentence in that institution. The High 740 Court of  Kerala holds  that the  second sentence in section 10-A has  not the effect of attracting the limitation that a person cannot  be kept  in a Borstal School after he attains 23 years  of age found in section 8 of the Act for according to that  High Court  that  sentence  merely  says  that  the provision of  the Act  shall  apply  to  an  offender  whose detention in  a Borsal School is directed under section 10-A as if  he had  been originally  sentenced to  detention in a Borstal School,  not that the provisions of the Act shall be applied in  making the  direction. The  High Court of Kerala appears to  be unwilling to give full effect to the words as if’ in  the second  sentence of  section 10-A in view of the presence of  the  words  ’the  whole  or  any  part  of  the unexpired residue  of his  sentence’ at the end of the first sentence in  section 10-A  of the Act. It is true that there is some  apparent contradiction  between the  two sentences. But having  regard to  the object of the legislation and the meaning of  the words  ’as if’  in the  second sentence,  we should extend  all the  privileges available  to an offender detained under  section 8  of the  act to  prisoner  who  is directed to be transferred to a Borstal School under section 10-A. The  object of the legislation is to reform of fenders who have  committed acts  visiting them  with the penalty of undergoing prison  life when  they were  between 16  and  21 years of  age and  that is  sought to  be achieved by taking them  away   from  the  company  of  adult  prisoners  whose continued association in a prison would have serious adverse influence  on  their  character.  If  every  person  who  is transferred under  section 10-A  to a  Borstal School  is to remain there  until he  serves  out  the  entire  period  of imprisonment for life the Borstal School would soon become a prison consisting  of ’lifers’ and its other inmates who are detained under section 8 would be keeping company with adult offenders, thus  defeating the very object of establishing a Borstal School.  The Court should as far as possible avoid a construction which  will make  the legislation  futile.  The second reason  is that  the words  ’as if’  appearing in the second sentence  in section 10-A make it a deeming provision and such  deeming provision  should in law be carried to its logical  end.  This  Court  while  construing  such  deeming provision has  adopted and  applied in a number of cases the rule of  construction expounded  by Lord Asquith in East End Dwellings Co.  Ltd.  v.  Finsbury  Borough  Council  in  the following words: 741

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16  

         "If you  are bidden to treat an imaginary state of      affairs as  real, you  must surely,  unless  prohibited      from doing  so, also  imagine as  real the consequences      and incidents  which if  the putative  state of affairs      had in fact existed must inevitably have flowed from or      accompanied  it.   One  of   these  in   this  case  is      emancipation from  the 1939 level of rents. The statute      says that  you must imagine a certain state of affairs;      it does  not say that having done so, you must cause or      permit your  imagination to boggle when it comes to the      inevitable corollaries of that state of affairs."      It may  also be  noted that  apart from  the clause  in section 8  which prescribes that no person detained under it can be kept in a Borstal School after he attains 23 years of age, there  are  other  provisions  in  the  Act  which  are specially applicable  to the  inmates of  a Borstal  School. Section 21-A  of the  Act empowers  the State  Government to order at  any time the discharge of an inmate of any Borstal School either  absolutely or  subject to such conditions, as it may  think fit.  The expression  ’inmate’ in section 21-A should in  the ordinary  course  include  a  person  who  is directed to be transferred to a Borstal School under section 10-A of  the Act.  Section 19-C  of  the  Act  provides  for classification of  such  inmates  into  various  grades  for purposes of  discipline and control in a Borstal School. The provisions in Part III of the Act lay down the procedure for releasing the  inmates  of  a  Borstal  School  on  licence. Section 13-A of the Act authorises the transfer of an inmate of a  Borstal School  in the  State of Andhra Pradesh to any Borstal School or other School of a like nature in any other part of  India, with  the consent  of the  Government of the other State  concerned. Every  one of  these  provisions  is applicable to a person transferred under section 10-A.      I agree  with the  decision of the High Court of Andhra Pradesh in  Bondili Jagannath  Singh v.  The  Government  of Andhra Pradesh  case (supra)  that if a person detained in a Borstal School  under section  10-A of  the Act is to be re- transferred to  the prison after he serves out the full term of detention  in the  School it  will defeat the very object and purpose  of the  Act of providing for detention of young offenders in a Borstal School for the purpose of reformation and rehabilitation of such offenders and that person 742 who is detained in a Borstal School has to be released if he has completed  23 years  of age.  But Shri  P.  Rama  Reddi, learned counsel  for the State of Andhra Pradesh very fairly submitted while  a person detained in a Borstal School under section 10-A  of the  Act was entitled to be released on his attaining 23 years of age before the commencement of section 433 A  of the  Code, he  cannot be now released until he has undergone fourteen  years of  imprisonment as  prescribed by section 433  A if  he is  a  person  who  is  sentenced  for imprisonment for life for an offence for which death is also one of the punishments prescribed by law.      Now arises  the crucial  question whether on the coming into force  of section  433 A  of the Code, a person who had been sentenced  to imprisonment  for life on being convicted of an  offence for  which death  is  also  prescribed  as  a punishment and  who being a person not below 16 nor above 21 years of  age had  later  on  been  directed  by  the  State Government under section 10-A of the Act to be detained in a Borstal School  is entitled to be released on his completing 23 years  of age  without any  regard to  the  provision  in section 433 A of the Code which insists that a person who is sentenced to  imprisonment for  life on  being convicted  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16  

such an  offence should  actually undergo imprisonment for a minimum period  of fourteen years. Section 433 A of the Code which came into force on December 18, 1978 reads thus:           "433 A.  Restriction on  powers  of  remission  or      commutation in  certain cases-Notwithstanding  anything      contained  in   Section  432,   where  a   sentence  of      imprisonment for  life is  imposed on  conviction of  a      person for  an offence  for which  death is  one of the      punishments provided  by law,  or where  a sentence  of      death imposed  on a  person  has  been  commuted  under      section 433  into one  of imprisonment  for life,  such      person shall  not be released from prison unless he had      served at least fourteen years of imprisonment".      Section 10-A  of the  Act empowers the State Government to  transfer   any  offender   who  has  been  sentenced  to imprisonment for  life and who at the time of conviction was not less than 16 nor more than 21 years of age from a prison to a  Borstal School, if it is satisfied that it would be to his advantage as provided therein. 743 It is  well known  that persons  who commit  acts which  are forbidden by  law are  ordinarily classified  into groups on the basis of their age for determining their liability under criminal law.  Section 82  of the Indian Penal Code declares that nothing  is an  offence which  is done by a child under seven years  of age.  Section 83  of the  Indian Penal  Code provides that nothing is an offence which is done by a child above seven  years of  age and  under twelve,  who  has  not attained sufficient  maturity of  understanding to  judge of the nature and consequences of his conduct on that occasion. Children who are below 15 or 16 years of age are entitled to the protection  of  certain  beneficent  provisions  in  the various Children’s  Acts in  force in different parts of the country.  Section   360  of  the  Code  again  provides  for releasing on probation of good conduct or after admonition a person under  twenty one years of age who is convicted of an offence not  punishable with death or imprisonment for life, and no  previous conviction  is proved  against him. The Act with which  we are  concerned in this case is again one such law which  attempts to  treat an  adolescent offender  in  a humane way.  The classification of offenders on the basis of age for  purposes of  criminal  law  is,  therefore,  beyond reproach.      The only  argument  pressed  before  us  by  the  State Government is  that in  view of the mandate of section 433 A of the  Code, and  person who is sentenced for imprisonments for life  for an  offence for  which death  is  one  of  the punishments provided  by law  cannot be released from prison unless he had served at least fourteen years of imprisonment even though  by an  order made under section 10-A of the Act he has  been detained  in a  Borstal School. This contention obviously overlooks the words ’prison’ and ’imprisonment’ in section 433 A of the Code and the effect of an order made by the State Government under section 10-A of the Act read with section 8  thereof. Entry  4  of  List  II  of  the  Seventh Schedule to  the Constitution  which reads  as "4.  Prisons, reformatories, Borstal  institutions and  other institutions of a  like nature,  and persons  detained  therein..."  also makes  a   distinction  between   a  person  and  a  Borstal institution. Section  433 A  of the  Code refers to a person who is actually undergoing imprisonment. As soon as an order is made under section 10-A of the Act in respect of a person who is  sentenced to imprisonment for life and he is sent to a Borstal  School  pursuant  thereto,  he  ceases  to  be  a prisoner undergoing  imprisonment. As  observed  earlier  he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16  

would be a 744 detenu in  a Borstal  School and the provisions of section 8 of the  Act will  have to  be given their full effect in his case also. Under section 8 of the Act the person detained in a Borstal  School can  be kept there for a maximum period of five years  and in no case after he has attained 23 years of age. I  have already  noticed that there is no provision for sending him  back to  prison except  section 14  of the  Act which will  not be  applicable to  a person  against whom no report is  made by the Superintendent of a Borstal School as stated therein.  If section  14 of  the Act  is inapplicable there is no legal way in which he can be sent back to prison to satisfy  the requirements  of section  433 A of the Code. Moreover, an anomalous situation which arises in the case of a person  sent to a Borstal School under section 10-A of the Act is  that if  the period of detention in a Borstal School is not  to be  counted as the period of imprisonment because detention is  ordered in  lieu of  imprisonment and  because Borstal School is not a prison then such person cannot claim by way of credit the period of detention in a Borstal School while computing the fourteen years of imprisonment mentioned in section  433 A  of the  Code. If  that is  so, should  he undergo an  extra period  of imprisonment  equivalent to the period of  his detention  to make  good  the  deficiency  to satisfy the requirements of that section ? That would hardly be a proper thing to be demanded of him.      Our attention  is drawn  to a decision of this Court in Maru Ram  etc. etc.  v. Union  of India  & Anr  I have  gone through that  decision carefully.  There the  question which arose for  consideration was  whether after  the coming into force of section 433 A of the Code, it was open to the State Governments to  reduce the sentence of imprisonment for life imposed on  a person  convicted of  a capital offence to any period they liked on the basis of the remission rules framed by the State Governments which were traceable to section 432 or section  433 of  the Code  or Acts  which authorised  the State Governments to modify the sentence of imprisonment for life imposed  by courts.  Krishna Iyer, J. who delivered the judgment on  behalf  of  himself  and  Chandrachud,  CJ  and Bhagwati, J. observed at pages 1217 and 1218 thus:           "Sentencing  is   a  judicial   function  but  the      execution  of   the   sentence’   after   the   court’s      pronouncement, is ordinarily 745      a matter  for the  Executive under  the Procedure Code,      going by  Entry 2  in List III of the Seventh Schedule.      Keeping aside  the constitutional powers under Arts. 72      and 161  which are  ’untouchable’ and  ’unapproachable’      for  any   legislature,  let  us  examine  the  law  of      sentencing, remission  and release. Once a sentence has      been imposed,  the only  way to terminate it before the      stipulated term is by action under ss. 432/433 or Arts.      72/161. And  if the latter power under the Constitution      is not invoked the only source of salvation is the play      of power under ss. 432 and 433 (a) so far as a lifer is      concerned. No  release by  reduction  or  remission  of      sentence is  possible under  the  corpus  juris  as  it      stands, in  any other way. The legislative power of the      State under Entry 4 of List II, even if it be stretched      to snapping  point, can  deal  only  with  Prisons  and      Prisoners, never with truncation of judicial sentences.      Remission by way of reward or otherwise cannot out down      the sentence as such and cannot, let it be unmistakably      understood, grant  final exit passport for the prisoner

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16  

    except by Government action under s. 432 (1). The topic      of Prisons  and Prisoners does not cover release by way      of reduction  of the  sentence itself.  That belongs to      Criminal Procedure in Entry 2 of List III although when      the sentence is for a fixed term and remission plus the      period undergone  equal that  term the prisoner may win      his freedom.  Any amount  of  remission  to  result  in      manumission requires action under s. 432 (1), read with      the Remission Rules. That is why Parliament tracing the      single source  of remission  of  sentence  to  s.  432.      blocked it  by the  non-obstante clause.  No remission,      however,  long,  can  set  the  prisoner  free  at  the      instance of the State, before the judicial sentence has      run out,  save by action under the constitutional power      or under  s. 432. So read, the inference is inevitable,      even if the contrary be argument ingenious, that s. 433      A achieves  what it wants-arrest the release of certain      classes  of   ’lifers’  before  a  certain  period,  by      blocking s.  432. Arts.  72 and  161  are,  of  course,      excluded from  this  discussion  as  being  beyond  any      legislative power  to curb or confine". (Underlining by      us.)      Then the learned Judge considered the effect of section 5 of  the Code  on the remission laws or rules. Section 5 of the Code reads thus: 746           "5. Saving-Nothing  contained in  this Code shall,      in the absence of a specific provision to the contrary,      affect any  special or  local law for the time being in      force, or  any special jurisdiction or power conferred,      or any  special form  of procedure  prescribed, by  any      other law for the time being in force".      It was  contended by  the petitioners in that case that section 5 of the Code saved all remissions, short sentencing schemes as  special and local laws and therefore, they would prevail over the Code including section 433A. Repelling that contention, Justice Krishna Iyer proceeded to observe thus:           "The anatomy  of this  savings sections is simple,      yet  subtle.   Broadly  speaking,   there   are   three      components to be separated. Firstly, the Procedure Code      generally governs matters covered by it. Secondly, if a      special or  local law  exists covering  the same  area,      this latter  law will  be saved  and will  prevail. The      short-sentencing   measures   and   remission   schemes      promulgated by the various States are special and local      laws and  must over-ride. Now comes the third component      which  may   be  clinching.  If  there  is  a  specific      provision to the contrary, then that will over-ride the      special or  local law. Is s. 433A a specific law contra      ? If  so, that will be the last word and will hold even      against the  special or  local  law........A  thing  is      specific if it is explicit. It need not be express. The      anti-thesis is  between ’specific’  and ’indefinite’ or      ’omnibus’ and  between ’implied’ and ’express’. What is      precise, exact,  definite and  explicit,  is  specific.      Sometimes, what is specific may also be special but yet      they are  distinct in  semantics. From  this angle, the      Criminal  Procedure   Code  is   a  general  Code.  The      remission rules  are special  laws but  s.  433A  is  a      specific, explicit,  definite provision  dealing with a      particular situation  or  narrow  class  of  cases,  as      distinguished from  the general run of cases covered by      s. 432  Cr. P.C.  Section 433A  picks out  of a mass of      imprisonment   cases   a   specific   class   of   life      imprisonment cases  and subjects  it  explicitly  to  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16  

    particularised  treatment.  It  follows  that  s.  433A      applies in  preference to  any  special  or  local  law      because   s.5    expressly   declares   that   specific      provisions, if  any, to  the contrary will prevail over      any special or local law. We have said enough 747      to make  the point  that ’specific’  is specific enough      and even though ’special’ to ’specific’ is near allied,      and thin  partition do their bounds divide’ the two are      different. Section 433A escapes the exclusion of s. 5."      A reading of the above passage shows that the Court was of the  view that in view of the non-obstante clause used in section 433A  of the  Code which  excluded the  operation of section 432,  the remission  rules which  were traceable  to section 432  could not prevail over section 433A and section 5 of  the Code  could not,  therefore, be  relied on  by the petitioners.      In the instant case reliance is not being placed on any rules traceable  to section  432 of the Code or on a statute which empowered the State Government to reduce the period of imprisonment  imposed   by  the   Court  passed   under  the legislative power  derived from  Entry 2  of List III of the Seventh Schedule  to the  Constitution but on an independent statute which  specifically deals  with the  case of a small section of  persons namely adolescent offenders traceable to the legislative power derived from the expressions ’prisons’ and ’Borstal  institutions’ in Entry 4 of the State List. If in the case of such offenders, the State Government makes an order  under   section  10-A  of  the  Act  directing  their detention in a Borstal School, then they cease to be persons undergoing imprisonment  for life  on being  convicted of an offence for  which death  is also  prescribed as  one of the punishments but  they  will  become  detenus  in  a  Borstal School. The Act which is a local law, therefore, prevails on all the provisions of the Code including section 433A of the Code as  there is  no provision which excludes the operation of the  Act which  deals with  Borstal institutions. Section 433A of  the Code  was  introduced  not  to  set  at  naught provisions like  section 10-A  of the Act which dealt with a special class  of offenders  like adolescent  offenders  but only to  regulate capricious  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  convicted of capital offences but had been sentenced  to imprisonment  for life  to short  periods like five  to six  years. That is apparent from the notes in clauses found  in the  Bill under  which section 433A of the Code was introduced. The relevant clause is given below:           "Clause  33:   Section  432   contains   provision      relating to  powers of  the appropriate  Government  to      suspend or 748      remit sentences.  The Joint  Committee  on  the  Indian      Penal Code  (Amendment) Bill,  1972 had  suggested  the      insertion of  a proviso  to section  57 of  the  Indian      Penal Code  to the  effect that  a person  who has been      sentenced to  death and  whose death  sentence has been      commuted into that of life imprisonment and persons who      have been  sentenced to life imprisonment for a capital      offence should  undergo actual imprisonment of 14 years      in Jail.  Since this  particular  matter  relates  more      appropriately to  the Criminal  Procedure Code,  a  new      section is being inserted to cover the proviso inserted      by the Joint Committee".      The Joint  Committee’s recommendation  on section 57 of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16  

the Indian  Penal Code  which is  referred to  in the  above clause was as follows:           "Section 57  of the Code as proposed to be amended      had provided  that in calculating fractions of terms of      punishment imprisonment  for life should be reckoned as      equivalent to  rigorous imprisonment  for twenty years.      In this  connection  attention  of  the  Committee  was      brought to  the aspect  that sometimes  due to grant of      remission even  murderers sentenced or commuted to life      imprisonment were  released at the end of 5 to 6 years.      The Committee  feels that  such a convict should not be      released unless  he has  served at least fourteen years      of imprisonment."      It is  obvious that  Parliament which was aware of laws like the  Act which  were in  force in  the States  did  not choose to  interfere with  them by  enacting section 433A of the Code.  If it intended to nullify or modify such laws the non-obstante clause  in section  433A would  have been  more comprehensive including  all local  statutes enacted for the benefit of  children and  juvenile or  adolescent offenders. Considering the  case in  the light of the observations made in Maru  Ram’s case  (supra) I feel that section 10-A of the Act remains  unimpaired and  it has  to be given full effect even after  the enactment  of section  433A of the Code. The contrary view  expressed by  the Madras High Court in In re. Ganapatt cannot be accepted as correct.      I am,  therefore, of  the view that section 433A of the Code 749 would not  operate in  respect of  persons dealt  with under section 10-A  of the  Act and that Parliament never intended while enacting section 433A to deny the benefit available to adolescent offenders  under section  10-A of  the Act.  When once this conclusion is reached, the argument that by reason of Article  254 of the Constitution, the Act should yield in favour of  a later Central legislation which is repugnant to the Act  would not  arise because  there would  be  no  such repugnancy at  all. If  section 433A of the Code is kept out of the way, section 10-A of the Act should be interpreted in the same  way in  which it  was  understood  all  along.  So construed a person who is detained under section 10-A of the Act in  a Borstal  School would  have to  be released on his attaining 23 years of age. My view receives support from the decision of  this Court in Kunwar Bahadur & Ors. v. State of Uttar Pradesh  which was  a case under the U.P. Borstal Act, 1938, the relevant part of which reads thus:           "It was  then argued that so far as appellant Nand      Kishore is concerned, he appears to be only 15 years at      the time  when the occurrence took place and it appears      that when he was sent to prison the Jailor referred him      to the  Sewa Sadan  under S.  7 of the United Provinces      Borstal Act,  1938. 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  contemplates that  for      such an  offender the  sentence of  five years  will be      equivalent  even   to  a   higher  sentence   of   life      imprisonment. It  is not  disputed before  us that  the      appellant Nand  Kishore had  already served  5 years in      that institution  and has  been released therefrom. The      question, therefore,  of his  surrendering to serve the      remaining  sentence   does   not   arise.   With   this      modification the appeal is dismissed."      In view  of  the  foregoing,  there  is  no  ground  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16  

interfere with  the decision  of the  High Court. The appeal is, therefore, dismissed.      SABYASACHI MUKHARJI, J. With great respect I agree with the order proposed and also with the reasoning of my learned brother,  Justice   Venkataramiah.  There  is  however  some anomaly in Section 10A of the Andhra Pradesh Borstal Schools Act, 1925.  The  said  section  has  been  set  out  in  the judgment. It  empowers the  State  Government  to  ’transfer offenders sentenced to transportation to Borstal 750 School’. It further provides that if the State Government is satisfied that  any  offender  who  has  been  sentenced  to transportation either  before or  after the  passing of  the Madras Borstal Schools (Amendment) Act, 1939, and who at the time of conviction was not less than 16 years, nor more than 21 years,  might  with  advantage  be  detained  in  Borstal School, direct  that such offender shall be transferred to a Borstal School,  there to serve the whole or any part of the unexpired residue  of the sentence. (emphasis supplied). The section further  stipulates that  the provisions of the said Act should  apply to  such  offender  ’as  if  he  had  been originally sentenced  to detention  in a Borstal School’. In the instant  case, by  the order dated 12th September, 1980, the State Government had directed that the petitioner should be detained  in a  Borstal School  ’to serve  the  unexpired portion of  the sentence  till he attains the age of 23;. My learned  brother   has,  with   the  aid  of  the  principle enunciated by  Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough  Council deemed  that the original sentence of transferring  the petitioner to a Borstal School has been passed by  the  Court  at  the  time  of  imposing  sentence originally. But  in fact  in passing the order under Section 10A expression  used by  the State  Government is  that  the person concerned  should be  detained in ’Borstal School’ to serve the  unexpired portion of the sentence till he attains the age  of 23 years. So the sentence actually passed by the enabling section  by the State Government directs the detenu ’to serve  the unexpired portion of the sentence’. Therefore we have  to deem  as if the sentence was passed by the court at the  time of  the passing of the original sentence by the court. In  a matter  of this  nature, the  statute should be more specific and in that view of the matter, the Government should consider the question of either altering the language of Section  10A of the Act or be more specific while passing any orders under Section 10A of the Act.      With these  observations I  respectfully agree with the decision of my learned brother. H.S.K.                                     Appeal dismissed. 751