ORDER
1. The petitioner is the mother of one Komalla Krishnaiah who was accused No. 2 in Sessions Case No. 129 of 1988 which ended in conviction Krishnaiah was convicted under section 302, I.P.C. and sentenced to life imprisonment. He is now lodged in the Central Jail at Chenchalguda, Hyderabad. The other accused in the case happens to be the brother-in-law of Krishnaiah, Both the accused preferred Criminal Appeal No. 399 of 1989 to this Court. By the judgment dated 20-9-1989 a Division Bench of this Court while modifying the sentence of A-1, dismissed the appeal of A-2 Krishnaiah. The Division Bench recommended that the Government may pass appropriate orders under Section 10-A of A.P. Borstal Schools Act, 1926 in respect of A-2, Krishnaiah observing :
“The learned counsel for the appellants submits that A-2 is a young boy aged about 18 years and he studied III class and his date of birth is shown in the record sheet as 2-6-1969 and therefore it is fit case to send him to Borstal School. We can only recommend, and having regard to the circumstance it is for the Government to take action under Section 10-A of the Borstal Schools Act. If they are satisfied that he is eligible to be sent to Borstal School after verification of his age and antecedents. We accordingly recommend the case of A-2 to the Government for consideration under section 10-A of the Borstal Schools Act.”
2. In compliance with the observations made by the Division Bench the matter was taken up by the Government. It appears that the Government asked for a report from the Inspector General of Prisons and Director of Correctional Services. The concerned District Probation Officer was also asked to submit his report about the character and antecedents of A-2 Krishnaiah. After receiving the report of the District Probation Officer and the Inspector General of Prisons and Director of Correctional Services, the Government passed an order dated 8-2-1990 in Memo No. 155/Prisons/B/90-1 which is as follows :
“Sub : A.P. Borstal Schools Act, 1926 – Central Prison, Hyderabad – Convict No. 3136 K. Krishnaiah – Transfer to Borstal School under Section 10-A of the Act – Regarding.
Ref : From the I.G. prisons & DCSLr. No. 827/SB2/89 dated 15-1-1990.
With reference to his letter cited the I.G. of Prisons and Director of Correctional Services is informed that his proposal for not transferring convict No. 3136 K. Krishnaiah of the Central Prison Hyderabad to Borstal School under S. 10-A of A.P. Borstal Schools Act, 1926 is accepted. The convict may therefore be retained in the Central Prison, Hyderabad.”
3. Seeking Judicial review of the said orders the present Writ Petition was filed by the mother of K. Krishnaiah.
4. Sri. K. Ramakrishna Reddi, learned counsel for the petitioner argues that power under section 10-A of the Act has to be exercised by the Government but unfortunately in the case on hand the Government merely accepted the report of the Inspector General of Prisons although according to the report submitted by the District Probation Officer, Krishnaiah was a fit person to be detailed in Borstal School. In opposition to these arguments the learned Government Pleader maintains that the Govt. have the absolute discretion under section 10-A of the Act; the crime committed by Krishnaiah was grave in nature and therefore he is not a fit person to be sent to Borstal School.
5. The District Probation Officer, Nalgonda was asked by the Superintendent of Central Jail Hyderabad to submit a report in respect of the said Krishnaiah after making necessary enquiries. In his report dated 11-10-1989 submitted to the Superintendent Central Prison, Hyderabad the District Probation Officer stated as follows :
“With reference to the above I have made enquiries about the said Convict.
His mother along with her daughter is staying in Naglonda in a rented house. His mother is a daily wage earner and earns Rs. 10/- per day. The neighbours spoke well about the family. I have made enquiries about him in his own village. I have contacted Sri Ramareddy and Sri Naraaiah, Sri Ramachandra Reddy and Sri Ramulu who spoke well about him. No one of the village people could speak bad about him.
He is not a nexalite, decoit nor an habitual offender. He did not have any bad past record in the village. The Socio-economical condition of the family is poor.
I have verified the school records and found that his date of birth is 2-6-1969. The date of birth certificate is sent with attestation.
In view of the above facts I am recommending for his committal to Borstal School and for his early release.”
6. The Inspector General of Prisons and Director of Correctional Services, Andhra Pradesh, Hyderabad in his letter dated 15-1-1990 addressed to the Principal Secretary to Government, Home (Prl. B) Department does not advert to the recommendations made by the District Probation Officer. He had only mentioned about the date of birth of Krishnaiah. The relevant portion of the letter reads :
“As per the report of the D.P.O. Nalgonda the date of birth of convict is 2-6-69 hence he was aged 19 years 8 months and 26 days on the date of conviction i.e. 8-2-1989. He is therefore adolescent within the meaning of Section 2(1) of A.P. Borstal Schools Act.”
As per the judgment of Sessions Judge, Nalgonda in S.C. No. 129 of 1988 dated 8-2-1989 the deceased and accused i.e. N. Eshwaraiah are own brothers, who had some disputes in regard to the partition of landed property by their father. The convict in question is the brother-in-law of accused No. 1. At the time of incident the deceased and A-1 were having some altercation with regard to diverting water for irrigation, when the convict in question has suddenly dealt a blow on the deceased with axe in his hand. Later A-1 and A-2 (the convict in question) has continued their beating which had resulted in the death of the deceased on the way to the hospital. Thus it is evident that there was no provocation for the convict in question to involve in the case while two brothers are quarrelling in spite of which he had dealt the first blow which is clear indication of the bed temper of the convict.
In view of the above, I do not feel the convict to be a fit subject for being dealt with under section 10-A of A.P. Borstal Schools Act.”
7. Section 2(1) of A.P. Borstal Schools Act 1926 (for short the Act’) defines ‘Adolescent Offender’ as one who has been convicted of any offence punishable with imprisonment or who has been to give security under Section 106 or 118 of the Code of Criminal Procedure but failed to do so and who at the time of such conviction or failure to give security is not less than 16 years nor more than 21 years of age. Section 6 specifies the hierarchy of the Courts which can exercise the powers under the Act. Magistrates, Sessions Judges and the Judges of the High Court are covered by Section 6 of the Act. Section 8 lays down that if it appears to the Court having jurisdiction under the Act that the detention of the adolescent offender in Borstal School would be conducive to his reformation. It may, in lieu of passing a sentence of imprisonment pass a sentence of detention in Borstal School for a term which shall not be less than two years and shall not exceed five years, but in no case the detention shall be beyond the date on which the adolescent offender attains the age of twenty-three years. The proviso to Section 8 obligates that before passing such sentence, the Courts shall consider any report or representation 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 the 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.”
8. The Government are also empowered under section 10-A to order detention of an adolescent offender in a Borstal School if they are satisfied that such detention might be to the advantage of the offender.
9. Although no guidelines are mentioned under section 10-A for the exercise of discretion by the Government for transfer of adolescent offenders from regular prisons to the Borstal Schools, the legislative intendment is fairly discernible whatever guidelines are set out in Section 8 for the exercise of power by the Courts apply to the Govt. also under section 10-A. If there are any other relevant circumstances it is always open to the Government to take then into account while passing the orders under section 10-A of the Act.
10. In the present case the District Probation Officer had recommended for committal of Krishnaiah in a Borstal School. His enquiries, according to the report submitted by him, disclosed that Krishnaiah’s past record was not bad, he was not an habitual offender. The people of the village spoke well of him and about the family. It is true that the committed a grave crime for which he was sentenced by the Sessions Court; but if the commission of the crime itself is a factor for declining to exercise power under section 10-A there can be no case in which the Government can commit an offender to the Borstal School. The Division Bench of this Court had already recommended the case of Krishnaiah for consideration under section 10-A. The District Probation Officer in his report had clearly stated that Krishnaiah is a fit person to be committed to Borstal School. The most relevant factor that ought to have weighed with the Government while exercising power under section 10-A was the report of the District Probation Officer. Failure to consider that report while exercising power under Section 10-A of the Act is a vitiating factor rendering the impugned order illegal.
11. Apart from this, another aspect which needs to be noticed is that the Government merely accepted the letter written by the Inspector General of Prisons and Director of Correctional Services without even verifying the basis for that letter. Section 10-A mandates that the Government themselves must be satisfied about the desirability of transferring an offender to a Borstal School. In exercise of that power the Government may take into account the reports if any submitted by their subordinate Officers, but they must consider all the relevant factors. While passing the impugned order, it is clear the Government have clearly overlooked the existence of a positive report submitted by the District Probation Officer, Nalgonda as regards the suitability of Krishnaiah for committal to Borstal School.
12. For the foregoing reasons the writ petition is allowed. The impugned order issued by the State in Memo No. 155/Prison/90-1 dt. 8-2-89 and Lr. No. 827/SB2/89 dated 15-1-1990 issued by the I.G. of Prisons are set aside and consequently the first respondent is directed to pass a fresh order under section 10-A of the Act taking into consideration the report submitted by the District Probation Officer, Nalgonda in his letter No. D/NKG/3/89 dated 11-10-1989 expeditiously as possible in any event not later than eight weeks from the date of receipt of a copy of this order. It is needless to mention that Krishnaiah shall not be detained in Borstal School beyond the date on which he attains the age of 23 years. No order as to costs. Advocate’s fee Rs. 350/-.
13. Petition allowed.