ORDER
Bilal Nazki, J.
1. The respondent was convicted under Section 302 1PC and sentenced to life imprisonment by the Trial Court on 19-12-1995 in SC No.245 of 1991. This sentence was upheld by the High Court in Crl, Appeal No.41 of 1996 by judgment dated 3rd December, 1996 and the respondent is in custody undergoing the sentence. He filed a writ petition being WP No.3148 of 1997 before this Court seeking a direction from this Court that he should be sent to Borstal School in terms of the provisions of A.P. Borstal Schools Act, 1925 (hereinafter referred as ‘the Act’) as he was above 16 years and less than 21 years in age at the time of his conviction. This writ petition was decided by this Court on 10-2-1997. It appears that the Court ordered the respondents/appellants herein to consider the representation of the petitioner/respondent herein with regard to his claim that he was
entitled to benefit under the Act. The representation was decided by the Government by an order dated 19th November, 1997. (0y this order the request of the respondent was rejected and he challenged the order by way of Writ Petition No.35131 of 1997. The learned single Judge has allowed the writ petition and directed the Superintendent, Central Prison, Chcnclialguda, Hyderabad to transfer the writ petitioner to Borstal School at Nizamabad. The judgment of the learned single Judge allowing the writ petition has been challenged by way of this writ appeal.
2. We have heard the learned Counsel for the parties at length and also gone through the record.
3. Before coming to the controversy in issue it will be profitable to note down certain provisions of the Act. Under Section 2(1) of the Act, ‘Adolescent Offender’ has been defined as under;
“2. (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 Section 106 or Section 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 and not more than 21 years of age;”
Section 8 lays down the power of the Court to pass sentence of detention in Borstal School.
“8. Power of Court to pass sentence of detention in Borstal School :–Where it appears to a Court having jurisdiction under mis 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 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 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.”
Section 10 gives powers to the Inspector-General to transfer prisoners to Borstal School.
“10. Power of Inspector-General to transfer prisoners to Borstal School :–The Inspector-General may, subject to rules made by the State Government, if satisfied that any adolescent offender undergoing imprisonment in consequence of a sentence passed either before or after the passing of this Act might with advantage be detained in a Borstal school, direct that such person shall be transferred from prison to Borstal school, there to serve the whole or any part of the unexpired residue of his sentence. The provisions of this Act shall thereupon apply to such person as if he had been originally sentenced to detention in a Borstal school.”
Section 10A gives power to State Government to transfer offenders sentenced to transportation to Borstal schools.
“10A. Power of State Government to transfer offenders sentenced to transportation to Borstal Schools :–The State Government may, if 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 and not more than 21 years of age, might wilh 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.”
Section 11 lays down that before passing sentence under Section 8 the Court shall enquire into the age of the offender and shall record a finding thereon stating his age as nearly as may be.
“11. Preliminary inquiry and finding as to age ofadolescent offender:–(1) Before passing a sentence under Section 8, the Court shall inquire in the age of the offender and, after taking such evidence (if any) as may be deemed necessary, shall record a finding thereon stating his age as nearly as maybe.”
On perusal of provisions of taw referred to above it becomes clear that the scheme of the Act is that, once it appears to a Court which is about to sentence a person that the accused before it is of age between 16 to 21 years, the Court is duty bound to conduct an enquiry in terms of Section 11 and if the Court finds that the person accused before it is between the age of 16 and 21 years, the Court has no option but to send him to Borstal School. However, if it is not done and the person being within the age group of 16 and 21 years is sentenced to imprisonment, the Inspector-General has got power to transfer him to Borstal school. In case of sentence of transportation, the power is with the State Government to make an enquiry and send the concerned person to Borstal school. This Court has already held in a judgment of Division Bench in State of A.P. v. Kommalla Krishnaiah, 1992 Cr.LJ 2446, that transportation for life be construed as sentence of imprisonment for life as transportation is no longer a punishment recognised by the penal laws. Therefore, in case of a convict who has been sentenced to life imprisonment and whose case has not been considered by the Court in terms of Section 8, he deserves a consideration in terms of Section 10A by the State Government.
Keeping in view the mandate of Section 10A this Court earlier in Writ Petition No.3148 of 1997 directed the State Government to consider flic representation of the writ petitioner/ respondent herein. The representation was considered and the Government passed an order in a mechanical way which was impugned in Writ Petition No.35131 of 1997. The Government did not conduct any enquiry with regard to the age of the Writ Petitioner on the date of his conviction, it merely referred to a letter of the Inspector-General of Police which stated that the age of the writ petitioner on the date of conviction was 22 years and 6 months. This is perhaps based only on the records of the Police and the charge-sheet filed against the petitioner. A copy of the learned Sessions Judge’s letter dated 25-10-1997 has also been annexed with the documents. This letter of the learned Sessions Judge only shows that in the remand papers of the writ petitioner the age mentioned by the Police of the petitioner was 20 years on 8-6-1993, this was noted down by the Police itself in the remand case diary. The learned Sessions Judge has nowhere said that he conducted an enquiry and reached to the conclusion that the writ petitioner was of 22 years and 6 months on the date of conviction. The Government order was passed on 19-11-1997 and the letter was written by the learned Sessions Judge to the Inspector General of Prisons on 25-10-1997 in response to his letter dated 13-10-1997. So, it can safely be said that the only enquiry conducted by the State Government was that they obtained information from the learned Sessions Judge and in turn the learned Sessions Judge gave information on the basis of the Police records which had been filed before him when the case against the writ petitioner was filed. This makes it amply clear that at no stage any enquiry has been conducted to come to a conclusion with regard to the correct age of the writ petitioner on the date of his conviction. On the other hand, the writ petitioner supplied a copy of the certificate from the school in which he had studied. According to this certificate the petitioner’s date of birth was 10-5-1978. If this is taken to be correct date
of birth of the writ petitioner, then, on the date of conviction he was plus 17 years. This certificate has not at all been considered and there is no evidence to show that there were any impediments in accepting the entries in the certificate. Since the writ petitioner has shown on the basis of his school certificate that he was within the age of 16 and 21 years therefore he was entitled to relief under the Act.
4. We are fortified in our view by a judgment of Supreme Court reported in Pradeep Kumar v. State of UP., , In the case before the Supreme Court certain persons were convicted whose case was that they were entitled to relief under U.P. Children Act and at the time of conviction their age was below 16 years. The Supreme Court allowed the plea on the ground that one accused before the Court produced a school leaving certificate, other accused produced a horoscope and with regard to the third accused a medical report was called for and all this evidence showed that they were below 16 years. Paras 2 and 3 of the judgment are quoted below:
“2. At the time of granting Special Leave, Jagdish appellant produced High School Certificate, according to which he was about 15 years of age at the time of occurrence. Appellant Krishan Kant produced horoscope which showed that he was 13 years of age at the time of occurrence. So far as appellant Pradeep is concerned a medical report was called for by this Court which disclosed that his date of birth as January 7, 1959 was acceptable on the basis of various tests conducted by the medical authorities.
(3) It is thus proved to the satisfaction of this Court that on the date of occurrence, the appellants had not completed 16 years of age and as such they should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment on conviction under Section 302/34 of the Act.”
So, the Supreme Court drew its satisfaction with regard to the age of the appellants on the basis of the school leaving certificate as well. It is generally assumed that the date of birth as given in the school leaving certificate is genuine however it may not be genuine and that will have to be proved by other side. The writ petitioner/respondent in the present case had submitted his certificate along with the representation, but there is no mention of it. The authorities concerned have not come up to the case that the school leaving certificate was not genuine. Since they failed to consider the importance of this certificate arid even decided not to make a mention of it in the impugned order, therefore this Court has no option but to believe that the writ petitioner’s date of birth was 10-5-1978.
5. The second contention which needs to be considered by this Court is the plea taken by the learned Government Pleader that the Courts have no jurisdiction to direct the transfer of a prisoner to Borstal school. It was suggested that the Courts can only give directions to consider the plea of an offender in terms of Section IDA of the Act. This Court has held in number of judgments including the judgment in Government of A.P. v. Khajabanu, , that the Courts have such jurisdiction, therefore this pica is no longer available to the appellants. However, it may also be pointed out that this Court had taken the same view in the initial stages when the writ petitioner filed his first writ petition but when the Government exercised its power in casual manner, what is the option with the Courts and what is the remedy left to die accused person.
6. For these reasons, we do not find any merit in the appeal and no exception can be taken to the judgment passed by the learned single Judge which is accordingly upheld. However, the appellant is given a further time of two weeks to implement the judgment of the learned single Judge.
The writ appeal is accordingly dismissed.