{"id":230068,"date":"1987-08-21T00:00:00","date_gmt":"1987-08-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hava-singh-vs-state-of-haryana-anr-on-21-august-1987"},"modified":"2015-01-16T01:19:11","modified_gmt":"2015-01-15T19:49:11","slug":"hava-singh-vs-state-of-haryana-anr-on-21-august-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hava-singh-vs-state-of-haryana-anr-on-21-august-1987","title":{"rendered":"Hava Singh vs State Of Haryana & Anr on 21 August, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hava Singh vs State Of Haryana & Anr on 21 August, 1987<\/div>\n
Equivalent citations: 1987 AIR 2001, \t\t 1987 SCR (3)1061<\/div>\n
Author: B Ray<\/div>\n
Bench: Ray, B.C. (J)<\/div>\n
           PETITIONER:\nHAVA SINGH\n\n\tVs.\n\nRESPONDENT:\nSTATE OF HARYANA & ANR\n\nDATE OF JUDGMENT21\/08\/1987\n\nBENCH:\nRAY, B.C. (J)\nBENCH:\nRAY, B.C. (J)\nSEN, A.P. (J)\n\nCITATION:\n 1987 AIR 2001\t\t  1987 SCR  (3)1061\n 1987 SCC  (4) 207\t  JT 1987 (3)\t375\n 1987 SCALE  (2)345\n CITATOR INFO :\n *\t    1986 SC 584\t (*)\n O\t    1988 SC 584\t (1,2,3,5)\n *\t    1988 SC2235\t (5)\n\n\nACT:\n    Punjab Borstal Act, 1926---pre-mature release of convict\nafter seven years' detention under provisions of--Section 5.\n\n\n\nHEADNOTE:\n    The\t petitioner, aged about 18 years, was convicted\t for\nan offence u\/s 302\/34 I.P.C. and sentenced to life imprison-\nment  by judgment and order dated 22nd May, 1980, and  being\nadmittedly  below 21 years of age at the time of  commission\nof  the offence, was sent to Borstal Institution in  accord-\nance with the provisions of the Punjab Borstal Act, 1926.\n    The\t Petitioner filed this writ petition in this  Court,\nstating\t that  the total period of detention  under-gone  by\nhim,  together\twith the remissions earned by him,  came  to\nover  ten  years, and he was entitled to  be  released\tboth\nunder  the  Punjab Borstal Act as well\tas  under  paragraph\n516-B of the Punjab Jail Manual. The petitioner,  therefore,\nprayed\tfor  his  premature release as\tprovided  under\t the\nPunjab\tBorstal\t Act and the paragraph 516-B of\t the  Punjab\nJail Manual.\n    On\tbehalf of the respondents, a  counter-affidavit\t was\nfiled by the Superintendent, Rohtak District Jail, where the\npetitioner was first sent after his conviction and  sentence\nu\/s  302\/34 I.P.C., and where he was brought again from\t the\nBorstal\t Institute in connection with another case  and\t was\nnow being kept, as he had attained the age of 21 years.\nAllowing the writ petition, the Court,\n    HELD:  The petitioner was sent to Borstal  Institute  at\nHissar\tas he was admittedly adolescent at the time  of\t his\nconviction, and was subsequently transferred to the District\nJail  at Rohtak to undergo the sentence of imprisonment\t for\nlife. [1064C]\n    It\tappears from the objects and reasons of\t the  Punjab\nBorstal Act, 1926, that the object of the Act is to  provide\nfor  the segregation of the adolescent prisoners from  those\nof  more mature age, and their subsequent training in  sepa-\nrate Borstal Institutions meant for detaining the adolescent\noffenders and for imparting to them industrial training and\n1062\nsubjecting them to such disciplinary and moral influence  as\nwill conduce to their reformation. [1064C-E]\n    Under section 5 of the Act above-said, either a Sessions\nJudge  or a Magistrate of first class or a  Magistrate\tspe-\ncially\tempowered under section 30 of the Code\tof  Criminal\nProcedure,  after  convicting  any male\t person,  less\tthan\ntwenty-one  years  of  age, of an  offence  punishable\twith\nimprisonment  for life or transportation or  other  rigorous\nimprisonment, or in the case of a convict who is ordered  to\ngive  security for good behaviour and he fails to give\tsuch\nsecurity,  may in lieu of passing a sentence of\t transporta-\ntion  or  rigorous imprisonment pass an order  of  detention\nwhich  shall not be less than two years and more than  seven\nyears  when an order is passed by a Court of Sessions  or  a\nMagistrate. The petitioner, when he was convicted u\/s 302\/34\nI.P.C.\tand sentenced to imprisonment for life, was  adoles-\ncent being less than twenty-one years of age and was sent to\nthe  Borstal Institute in accordance with the provisions  of\nthe  Punjab Borstal Act, 1926. On his attaining the  age  of\nabout twenty-one years, he was transferred back to the jail.\nThere is no provision except section 20 in the said Act\t for\ntransferring back an adolescent convict on his attaining the\nage  of twenty-one years from the Borstal Institute to\tjail\nfor  undergoing the unexpired term of imprisonment.  On\t the\nother hand, under section 5 of the Act an adolescent convict\nunder  twenty-one  years  of age, after the  expiry  of\t his\nperiod\tof detention, has to be released from detention\t and\nhe  is\tnot  to be transferred to jail\tfor  undergoing\t the\nunexpired period of his sentence of imprisonment. Section 20\nempowers the State Government' to commute the residue of the\nterm of detention of an inmate of the Borstal Institute, and\nalso  order his transfer to any jail in Punjab\tto  complete\nthe said term of imprisonment when such an inmate is report-\ned to be incorrigible or is exercising bad influence on\t the\nother  inmates of the Institution or has committed  a  major\nBorstal Institution offence as provided in the rules.  There\nwas nothing to show that the petitioner had been even  found\nto  be incorrigible or to be exercising a bad  influence  on\nthe other inmates of the Institution, etc., as stated above,\nand  the State Government had not passed any order  for\t his\ntransfer  to the jail as mentioned above.  [1065E-H;  1066A,\nD-F]\n    On\ta  conspectus of the decision of this Court  in\t the\nState  of  Andhra Pradesh v. Vallabhapuram  Rani,<\/a>  [1984]  4\nS.C.C. 410, and on a consideration of the facts and  circum-\nstances\t of the case, the only conclusion that followed\t was\nthat  the petitioner, who had already undergone\t actual\t im-\nprisonment for seven years, was entitled to be released from\ndetention  and imprisonment. Paragraph 516-B of\t the  Punjab\nJail\n    1063\nManual\twas not applicable in this case. The Court  directed\nthe respondents to release the petitioner from\timprisonment\nforthwith. [1067C-D; G]\n    State   of\t Andhra\t Pradesh  v.   Vallabhapuram   Rani,<\/a>\n[1984]4S.C.C. 410, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
    ORIGINAL  JURISDICTION: Writ Petition (Criminal)  No.668
\nof 1986.\n<\/p>\n
(Under Article 32 of the Constitution of India).
\nR.K. Jain and R.P. Singh for the Petitioner.
\nC.V.S. Rao for the Respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\n    B.C. RAY, J. The petitioner who was aged about 18  years
\nalong with one Subeh Singh was involved in a case of  murder
\nof one Ranbir Singh and he was convicted for an offence U  s
\n302 34 I.P.C. and sentenced to life imprisonment by judgment
\nand order dated 22nd May, 1980. The petitioner being  admit-
\ntedly  below 21 years of age at the time of alleged  commis-
\nsion  offence was sent to Borstal Institution in  accordance
\nwith the provisions of Punjab Borstal Act, 1926. It has been
\nstated that the petitioner has already undergone a period of
\nabout  6 years, 10 months and 11 days detention in jail\t and
\ntogether  with remissions earned by him it comes to over  10
\nyears. It has been further stated that he is entitled to  be
\nreleased both under the Punjab Borstal Act as well as  under
\nparagraph 5 16-B of the Punjab Jail Manual and has therefore
\nprayed\tfor  his pre-mature release as\tprovided  under\t the
\nPunjab\tBorstal Act and also under paragraph 5 16-B  of\t the
\nPunjab Jail Manual. In the counter-affidavit filed on behalf
\nof  the\t respondent sworn by one Shri  Ram  Chander  Sarwan,
\nSuperintendent of District Jail at Rohtak it has been stated
\nthat  the  petitioner was convicted and\t sentenced  to\tlife
\nimprisonment U,S 30234 I.P.C. on 22.5. 1980 by the  Sessions
\nJudge,\tRohtak and he was sent to District Jail,  Rohtak  to
\nundergo\t the sentence passed upon him. It has  been  further
\nstated that at the time of conviction he was 19 years of age
\nand  as such he was sent to B.I. & J. Jail, Hissar.  He\t was
\ntransferred  back  to this Jail (Rohtak\t District  Jail)  on
\n16.12.\t1981  for  trial in IInd  case\t(FIR  No.III,78\t U\/s
\n452\/325\/34  I.P.C.). He was acquitted in this IInd case\t and
\nas  he was about 21 years of age so he was kept in the\tJail
\nto  undergo the life imprisonment imposed upon him on  22.5.
\n1980. It has
\n1064<\/span>
\nbeen further averred that after the amendment of the  Crimi-
\nnal  Procedure Code the petitioner being sentenced  to\tlife
\nimprisonment has to undergo 14 years of substantive sentence
\nU\/s 433-A of the Code before his case can be considered\t for
\npre-mature release. The detail of sentence undergone by\t the
\npetitioner  as\ton 22.12. 1986 was also given  in  the\tsaid
\naffidavit wherefrom it appears that he has already undergone
\n7  years,  3 months and 3 days actual sentence\tupto  22.12.
\n1986.  It  has\ttherefore been stated  that  the  petitioner
\nhaving not undergone 14 years of actual sentence, he can not
\nbe released pre-maturely.\n<\/p>\n
    It is evident from the averments made in the writ  peti-
\ntion  as  well\tas in the said\tcounter-affidavit  that\t the
\npetitioner who was admittedly adolescent at the time of\t his
\nconviction  was sent to Borstal Institute at Hissar.  Subse-
\nquently,  he  has been transferred to the District  Jail  at
\nRohtak\tand is undergoing the sentence of  imprisonment\t for
\nlife.  It  appears from the objects and\t reasons  of  Punjab
\nBorstal\t Act, 1926 that the object of the Act is to  provide
\nfor  segregation of adolescent prisoners from those of\tmore
\nmature age, and their subsequent training in separate insti-
\ntutions. These Borstal Institutions are meant for  detaining
\nadolescent  offenders and to impart to them such  industrial
\ntraining  and  other instructions and subject them  to\tsuch
\ndisciplinary  and moral influence as will conduce  to  their
\nreformation. This is evident from the provisions of  section
\n2(1) of Punjab Borstal Act, 1926. Sub-section (2) of section
\n2  defines  ‘detained’\tas detained in\tand  ‘detention’  as
\ndetention  in a Borstal Institution. Section 5 of  the\tsaid
\nAct which is very vital for the purpose of decision of\tthis
\ncase is quoted hereinbelow:-\n<\/p>\n
\t      “5.  Powers  of courts to pass a\tsentence  of
\n\t      detention in a Borstal Institution in the case
\n\t      of a convict under twenty-one years of age  in
\n\t      lieu  of transportation or rigorous  imprison-
\n\t      ment–(1)\t When  any  male  person  less\tthan
\n\t      twenty-one  years\t of age is convicted  of  an
\n\t      offence  by a court of sessions, a  Magistrate
\n\t      specially\t empowered under section 30  of\t the
\n\t      Code  of Criminal Procedure, 1898, or a  Judi-
\n\t      cial  Magistrate\tof the first  class,  or  is
\n\t      ordered  to give security for  good  behaviour
\n\t      and  fails to give such security, and when  by
\n\t      reason of his criminal habits or tendencies or
\n\t      associations with persons of bad character  it
\n\t      is  expedient in the opinion of the  Judge  or
\n\t      Magistrate,  that he should be detained,\tsuch
\n\t      Judge or Magistrate may, in lieu of passing  a
\n\t      sentence of transportation or rigorous impris-
\n\t      onment, pass an order of detention for a\tterm
\n\t      which  shall  not be less than two  years\t and
\n\t      shall not exceed seven years when the order
\n\t\t  1065<\/span>
\n\t      is  passed by a court of sessions or a  Magis-
\n\t      trate specially empowered under Section 30  of
\n\t      the  Code\t of Criminal  Procedure,  1898,\t and
\n\t      shall  not be less than two years\t nor  exceed
\n\t      three  years,  when the order is passed  by  a
\n\t      Judicial’ Magistrate of the first class not so
\n\t      empowered.\n<\/p><\/blockquote>\n
\t\t       (2) When any Judicial Magistrate\t not
\n\t      empowered\t to pass such order, is\t of  opinion
\n\t      that an offender convicted by him is a  person
\n\t      in respect of whom such order should be passed
\n\t      in  accordance  with the\tprovisions  of\tsub-
\n\t      section  (1),  he\t may,  without\tpassing\t any
\n\t      sentence,\t record such opinion and submit\t his
\n\t      proceedings  and\tforward the accused  to\t the
\n\t      Chief Judicial Magistrate to whom he is subor-
\n\t      dinate.\n<\/p><\/blockquote>\n
\t\t       (3) The Chief Judicial Magistrate  to
\n\t      whom the proceedings are so submitted may make
\n\t      such  further enquiry (if any) as he may\tdeem
\n\t      fit  and pass such order for the detention  of
\n\t      the offender or such other sentence or  order,
\n\t      as he might have passed if the trial had\tbeen
\n\t      held by him from its commencement.”<\/p><\/blockquote>\n
    Thus it is manifest from Section 5 of the said Act\tthat
\neither a Sessions Judge or a Magistrate of first class or  a
\nMagistrate specially empowered under Section 30 of the\tCode
\nof  Criminal Procedure after convicting any male person\t who
\nis less than twenty-one years of age, of an offence punisha-
\nble  with imprisonment for life or transportation  or  other
\nrigorous imprisonment or a convict is ordered to give  secu-
\nrity for good behaviour and fails to give such security, may
\nin lieu of passing a sentence of transportation or  rigorous
\nimprisonment  pass an order of detention which shall not  be
\nless than two years and shall not exceed seven years when an
\norder  is  passed  by a court of sessions  or  a  Magistrate
\nspecially  empowered under the Code of\tCriminal  Procedure.
\nThe petitioner who was adolescent admittedly being less than
\ntwenty-one years of age at the time of his conviction though
\nconvicted  U\/s 302\/34 I.P.C. and sentenced  to\timprisonment
\nfor  life, was sent to the Borstal Institute  in  accordance
\nwith  the  provisions of Punjab Borstal Act,  1926.  On\t his
\nattaining  the age of about twenty-one years he\t was  trans-
\nferred\tback to the Jail. There is no provision except\tsec-
\ntion 20 under the said Act for transferring back an  adoles-
\ncent  convict on his attaining the age of  twenty-one  years
\nfrom the Borstal Institute to Jail for undergoing the  unex-
\npired  term  of imprisonment. On the other hand on  a  plain
\nreading of section 5 it is clear that the adolescent convict
\nunder twenty-one years of age after expiry of his period  of
\ndetention
\n1066<\/span>
\nhas to be released from detention and he is not to be trans-
\nferred\tto Jail for undergoing the unexpired period  of\t his
\nsentence  of imprisonment. Section 20 of the said Act is  in
\nthe following terms:-\n<\/p>\n
\t      “20. Incorrigibles–Where an inmate is report-
\n\t      ed  to  the State Government by  the  visiting
\n\t      committee to be incorrigible or to be exercis-
\n\t      ing  a bad influence on the other\t inmates  of
\n\t      the institution or is convicted under  section
\n\t      19 of this Act or is reported by the  Superin-
\n\t      tendent to have committed an offence which has
\n\t      been declared to be major Borstal\t Institution
\n\t      offence by rules made by the State  Government
\n\t      in pursuance of the provisions of\t sub-section
\n\t      (14)  of\tsection 34 of this  Act,  the  State
\n\t      Government  may  commute the  residue  of\t the
\n\t      terms  of detention to such term of  imprison-
\n\t      ment of either description not exceeding\tsuch
\n\t      residue  as the State Government\tmay  direct,
\n\t      and  may order the transfer of the  inmate  to
\n\t      any  jail in Punjab in order to  complete\t the
\n\t      said term of imprisonment.”<\/p><\/blockquote>\n
    This  section empowers the State Government\t to  commute
\nthe residue of the term of detention of an inmate in Borstal
\nInstitute to such term of imprisonment of either description
\nnot exceeding the residue as the State Government may direct
\nand  also  to order transfer of the inmate to  any  jail  in
\nPunjab\tin order to complete the said term  of\timprisonment
\nwhen  such an inmate is reported to be incorrigible  or\t his
\nexercising bad influence on the other inmates of the  Insti-
\ntution\tor  such  an inmate has committed  a  major  Borstal
\nInstitution  offence  as  provided in the  rules.  There  is
\nnothing\t to  show that the petitioner was ever found  to  be
\nincorrigible  or  to be exercising a bad  influence  on\t the
\nother inmates of the Institution or is found to have commit-
\nted  any  major Borstal Institution offence  and  the  State
\nGovernment  has not passed any order for his  transfer\tfrom
\nthe  Borstal Institution to Jail for undergoing the  residue
\nof his term of imprisonment.\n<\/p>\n
    This  Court while considering an identical case  in\t the
\nState  of  Andhra  Pradesh v. Vallabhapuram  Ravi<\/a>  [1984]  4
\nS.C.C. 410 has observed that “a person detained in a Borstal
\nSchool\tunder section 10-A has to be released after  he\t has
\nserved\tthe  full  term of 5 years of detention\t or  on\t his
\ncompleting  23\tyears  of age. He  cannot  be  retransferred
\nthereafter  to\tprison. Such a retransfer would\t defeat\t the
\nvery  object and purpose of the Act of providing for  deten-
\ntion of young offenders in Borstal School for the purpose of
\nreformation and rehabilitation of such offenders.” It is  to
\nbe noted in this connection that
\n    1067<\/span>
\nsentence  of  detention\t is passed in lieu  of\tsentence  of
\nimprisonment which may have been passed. Hence the detention
\norder U\/s 5 of the said Act is not imprisonment and  Borstal
\nSchool\twhere the adolescent offender is detained is  not  a
\nprison.\t It  has also been observed  further  that  “Section
\n433-A,\tCr. PC would not operate where a person is  detained
\nby an order under Section 10-A of the Act. Section 433-A  of
\nthe Code was introduced not to set at naught provisions like
\n10-A of the Act which dealt with a special class of  offend-
\ners  like adolescent offenders but only to  regulate  capri-
\ncious and arbitrary decisions under Section 432 of the\tCode
\nand  the remission rules sometimes reducing the sentence  of
\nimprisonment  for life imposed on persons who had been\tcon-
\nvicted of capital offences but had been sentenced to impris-
\nonment for life to short periods like five to six years.”\n<\/p>\n
    On a conspectus of the aforesaid decision as well as  on
\na  consideration  of the facts and  circumstances  the\tonly
\nconclusion  follows  that  the petitioner  who\thas  already
\nundergone actual imprisonment for seven years is entitled to
\nbe released from detention and from imprisonment.  Paragraph
\n5  16-B of the Punjab Jail Manual is not applicable in\tthis
\ncase  as the petitioner who was an adolescent convict  below
\ntwenty-one years of age was sent to the Borstal Institute at
\nHissar\tfor detention in accordance with the  provisions  of
\nSection 5 of the Punjab Borstal Act, 1926. He being convict-
\ned by the Sessions Judge the maximum period of detention  as
\nprescribed  by the Act is seven years. We have already\tsaid
\nhereinbefore  that such an inmate of the  Borstal  Institute
\ncannot\tbe  transferred to Jail on the ground  that  he\t has
\nattained  the age of twenty-one years as the said  Act\tdoes
\nnot provide for the same. The only provision for transfer to
\nJail  is in the case of incorrigible inmate or inmates\tcon-
\nvicted of major Borstal Institution offence. The  petitioner
\nwho  was’ detained in a Borstal Institute is entitled to  be
\nreleased  and  to be set free as he  has  already  undergone
\ndetention for a period of seven years. The Writ Petition  is
\ntherefore  allowed. The respondents are directed to  release
\nthe petitioner from imprisonment forthwith. There will be no
\norder as to costs.\n<\/p>\n
S.L.\t\t\t\t\t\t    Petition\nallowed.\n1068<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hava Singh vs State Of Haryana & Anr on 21 August, 1987 Equivalent citations: 1987 AIR 2001, 1987 SCR (3)1061 Author: B Ray Bench: Ray, B.C. (J) 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-230068","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHava Singh vs State Of Haryana & Anr on 21 August, 1987 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hava-singh-vs-state-of-haryana-anr-on-21-august-1987\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hava Singh vs State Of Haryana & Anr on 21 August, 1987 - 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