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
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).
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
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
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
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