{"id":31113,"date":"2008-02-06T00:00:00","date_gmt":"2008-02-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-thangammal-vs-the-home-secretary-on-6-february-2008"},"modified":"2018-11-26T20:40:00","modified_gmt":"2018-11-26T15:10:00","slug":"a-thangammal-vs-the-home-secretary-on-6-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-thangammal-vs-the-home-secretary-on-6-february-2008","title":{"rendered":"A. Thangammal vs The Home Secretary on 6 February, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
A. Thangammal vs The Home Secretary on 6 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 06\/02\/2008\n\nCORAM\nTHE HON'BLE MRS. JUSTICE PRABHA SRIDEVAN\nTHE HON'BLE MR. JUSTICE N. PAUL VASANTHA KUMAR\nAND\nTHE HON'BLE MR. JUSTICE S. NAGAMUTHU\n\nHabeas Corpus Petition No.596 of 2007\n\nA. Thangammal\t\t\t\t\t\t\t... Petitioner\n\nVs.\n\nState Rep by\n1.\tThe Home Secretary\n\tThe Government of Tamil Nadu\n\tFort St. George\n\tChennai - 600 009\n\n2.\tThe Inspector General of Prisons\n\tThalamuthu Natarajan Maligai\n\tEgmore\n\tChennai - 600 008\n\n3.\tThe Superintendent of Prisons\n\tCentral Prison\n\tPalayamkottai\t\t\t\t\t\t... Respondents\n\n\n\tPetition filed under Article 226 of the Constitution of India praying for\na writ of Habeas Corpus and quash the sentence imposed on him in S.C.No.309 of\n2002 dated 28-03-2003 and direct the 3rd respondent to produce my son name\nThangapandi to set him at liberty from his illegal detention at Central Prison,\nPalayamkottai.\n\n\n!For petitioner \t...\tMr. Mohideen Basha\n\t\t\t\tMr. Abudu Kumar Rajarathinam\n\t\t\t\t(Amicus Curiae)\n\n^For respondents\t...\tMr. Raja Ilango, Addl. P.P.\n\n\n:ORDER\n<\/pre>\n
PRABHA SRIDEVAN,J.\n<\/p>\n
\tThe petitioner in H.C.P. MD. 596 of 2007 is the mother of 24 year old
\nThangapandi.  According to her, her son was born on 10-05-1983.  He was one of
\nthe accused in S.C. No.309 of 2002 wherein three persons were found guilty under
\nSection 302 IPC r\/w. 34 IPC and were sentenced to undergo imprisonment for life.
\nAt that time, the Fast Track Court viz., the Trial Court was not appraised of
\nthe fact that the petitioner is an “adolescent offender” as defined under the
\nTamil Nadu Borstal Schools Act, 1925.  Against the sentence imposed, Crl. Appeal
\nNo.754 of 2003 was filed. Even before the Division Bench, this point was not
\nurged and the criminal appeal was dismissed on 23-02-2007. Thereafter, the above
\nH.C.P. was filed on the ground that the petitioner’s son Thangapandi was 18
\nyears 5 months and 12 days old as on the date of occurrence and 19 years 10
\nmonths and 18 days on the date of conviction, which is 28-03-2003 and therefore,
\nhe was entitled to invoke the relevant provisions of the Tamil Nadu Borstal
\nSchools Act, 1925 and therefore, his continued detention was per se illegal.
\nWhen this point was urged, it was found that there was a conflict with regard to
\nthe application of the Act in Palanisamy @ Chinnasamy @ Vakil and 3 others  V.
\nState rep. By Inspector of Police, Veeranam Police Station, Salem District (2006
\n(2) L.W. (Crl.) 883) and Ramasamy V. State (2000 (1) L.W. (Crl) 142).
\nTherefore, the matter was placed before the Honourable the Chief Justice for
\nappropriate directions. Accordingly, this case has been placed before this Full
\nBench for hearing.\n<\/p>\n
\t2. The learned counsel for the petitioner Mr.  Mohideen Basha submitted
\nthat in S.2(1) of the Tamilnadu Borstal Scchools Act ( Act in short) relating to
\n“adolescent offender”, the expression “imprisonment” should be read to include
\n“imprisonment for life”.  The learned counsel submitted that, with great
\nrespect, the view of the Division Bench in Palanisamy’s case (cited supra) is
\nnot correct. The learned counsel submitted that the decision in Ganapathy, In Re
\n(1982 L.W. (Crl) 217), where it was held that a person convicted and sentenced
\nto undergo imprisonment for life would not be covered by Section 8 of the Tamil
\nNadu Borstal Schools Act had been overruled in State of Andhra Pradesh V.
\nVallabhapuram Ravi<\/a> (1984 S.C.C. (Crl) 635). The learned counsel submitted that
\nin Ramasamy’s case (cited supra), the Division Bench held that on a
\nconsideration of the various decisions of the Supreme Court while sustaining the
\nconviction of the appellant who was sentenced to imprisonment for life, had
\nquashed the sentence.  The learned counsel submitted that if the Division Bench
\nwhich heard Palanisamy’s case (cited supra) was not inclined to agree with this
\nview, then the proper course would have been to refer it to a Full Bench.\n<\/p>\n
\t3. Mr. Abudu Kumar Rajarathinam, learned counsel who had assisted the
\nCourt in Palanisamy’s case (cited supra) submitted that it is interesting to
\nnote that in W.P.MD.No.4674 of 2006 which was a public interest litigation
\ndealing with “adolescent offenders” prior to their conviction, it was held that
\nsuch adolescent offenders should be kept in the control of Borstal Schools and
\nnot be detained in a regular prison.  The learned counsel submitted that the
\ndefinition in Section 2(1) makes it clear that the protection of the Act is
\ngiven to a person who has been convicted with an offence and not to a person at
\na pre-conviction stage and in spite of this in the above matter, the Division
\nBench had clearly held that they are entitled to the provisions of the Act and
\nit is ironic that, when persons who are not covered by the provision are given
\nprotection, the persons who come under the definition of adolescent offenders
\nare not protected, on the ground that the word “imprisonment” in Section 2(1)
\ndoes not include “life imprisonment”.  The learned counsel submitted that such a
\nnarrow construction would defeat the object of the Act.\n<\/p>\n
\t4. The learned Public Prosecutor drew a comparison between the language of
\nSection 10 and 10A and submitted that while the  words used in Section 10 is
\n“adolescent offender”, in Section 10A the word used is “offender”.  Therefore,
\nit is clear that the person who is entitled to invoke Section 10A would not be
\nan adolescent offender, or to put it in other words, is not a person who would
\nfall within the definition of “adolescent offender” as per Section 2(1). The
\nlearned Public Prosecutor submitted that the word “transportation” used in
\nSection 10A has been subsequently changed into “a sentence of imprisonment” and
\ntherefore, by virtue of the substitution of the word “imprisonment for life” in
\nthe place of “transportation” by the Code of Criminal Procedure Amendment Act
\n1955, the only logical conclusion that can be arrived at is that the term
\n“adolescent offender” was not entitled to be applied to persons who were
\nsentenced to undergo life imprisonment, but only to those persons who were
\nsentenced to undergo imprisonment for a smaller term. The learned Public
\nProsecutor read out Section 10A and submitted that though the word used is
\n“offender” the Legislature had made it clear that the persons who are entitled
\nto invoke Section 10A would be persons who fall within the same age bracket as
\nprovided under Section 2(1), the definition section.  The learned Public
\nProsecutor submitted that Section 10A of the Borstal Schools Act was a
\nbenevolent provision which enabled the State to treat persons sentenced to
\nundergo life imprisonment as though they are persons who are entitled to invoke
\nSection 8.  The learned Public Prosecutor submitted otherwise the word “as if”
\nwould not have any meaning.  According to the learned Public Prosecutor, the
\ndecision in Palanisamy’s case laid down the correct law.\n<\/p>\n
\t5. We have carefully considered the sections extracted above and also the
\nvarious decisions of the Supreme Court where the provisions of the Borstal
\nSchools Act are dealt with and also the object of the Act and important
\nInternational Conventions, to which India is a signatory and which will have to
\nbe applied in situations where there is no local law or municipal law contrary
\nto the said international convention.\n<\/p>\n
\t6. The crux of the matter is, whether the Court has the jurisdiction to
\ngive the protection of the Tamil Nadu Borstal Schools Act to a person who has
\nbeen convicted of a offence punishable with imprisonment for life or whether it
\nis the exclusive power of the State under Section 10A of the Act.  In
\nPalanisamy’s case (cited supra), the Division Bench was of the opinion that the
\nCourt did not have the jurisdiction and differed from the judgment in Ramasamy’s
\ncase (cited supra). We will look at this issue from the following angles, to
\narrive at the answer.\n<\/p>\n
\t7.\tWhy should an adolescent be treated differently?\n<\/p>\n
\t7.1.\tThe Statement of Objects and Reasons to The Tamil Nadu Borstal
\nSchools Act, 1925 (Act No.5 of 1926) reads thus:\n<\/p>\n
\t“The object of the Bill is to provide for the detention of adolescent
\noffenders in special institutions in which they will be given industrial
\ntraining and other instruction and subjected to such disciplinary and moral
\ninfluences as will conduce to their reformation.  It is now generally recognised
\nthat the period of adolescence is the most critical in an individual’s life
\n‘when the mind is specially susceptible to fresh impressions and when it is
\npeculiarly important to prevent habits of immorality and crime from being
\nformed, and that it is undesirable from all points of view to familiarise
\nadolescents with ordinary jail life and bring them into contact with adult
\nprisoners.\n<\/p>\n
\tThe experiment has been made during the last few years of sending
\nadolescent prisoners to the Borstal School at Tanjore in order to bring them
\nunder reformatory influences – the main features of the system being the special
\nand individual training of the inmates and conditional release of such of them
\nas appeared to deserve the privilege to enable them to enter the service of the
\nsocieties or individuals.  The results of the experiment have been satisfactory
\nand the Bill is framed with a view to the expansion and extension of the system.
\n\tThe chief defect of the existing system is the admission in Borstal cannot
\nprofit by the Borstal treatment.  The present procedure about releases is also
\ncumbrous as every case has to be dealt with under section 401 of the Criminal
\nProcedure Code.\n<\/p>\n
\tThe Bill is intended to remove these defects.  It empowers certain clauses
\nof Courts to pass orders detaining adolescent offenders – Those who are not less
\nthan 16 and not more than 21 years of age – in Borstal School for a term of not
\nless than three years, instead of sentencing them in the ordinary way to
\nimprisonment.  Provision is made, subject to rules made by the Local Government,
\nfor the transfer to Borstal schools of adolescent offenders, whether convicted
\nbefore or after the passing of the Act.  A system of conditional releases on
\nlicence is also introduced with the necessary provisions for revocation and for
\nforfeiture of a license once issued”.\n<\/p>\n
So, this is the object of the Act, and the purpose which should be advanced when
\nwe construe the provisions of the Act.\n<\/p>\n
\t7.2. The relevant provisions of the Tamil Nadu Borstal Schools Act, 1925
\nare Sections 2(1), 8, Section 10 and 10-A and they read as follows:
\n\t“2. In this Act, unless there is anything repugnant in the subject or
\ncontext :\n<\/p>\n
\t\t(1) “Adolescent offender” means any person who has been convicted of
\nany offence punishable with imprisonment or who having been ordered to give
\nsecurity under Section 106 or 118 of the Code of Criminal Procedure has failed
\nto do so and who at the time of such conviction or failure to give security is
\nnot less than 16 nor more than 21 years of age;\n<\/p>\n
\t\t…..”\n<\/p>\n
\t“8. Power of Court to pass sentence of detention in Borstal School –
\n\t\tWhere it appears to a Court having jurisdiction under this Act that
\nan adolescent offender should, by reason of his criminal habits or tendencies,
\nor association with persons of bad character, be subjected to detention for such
\nterm and under such instruction and discipline as appears most conducive to his
\nreformation and the repression of crime, it shall be lawful for the Court, in
\nlieu of passing a sentence of imprisonment, to pass a sentence of detention in
\nBorstal school for a term which shall not be less than two years and shall not
\nexceed five years, but in no case extending beyond the date on which the
\nadolescent offender will, in the opinion of the Court, attain the age of twenty
\nthree years.\n<\/p>\n
\t\t(2) Before passing a sentence of detention in a Borstal school under
\nsub-section (1), the Court–\n<\/p>\n
\t\t(a) shall call for a report from the Probation Officer of the area
\nin which the offender permanently resided at the time when he committed the
\noffence and shall consider such report;\n<\/p>\n
\t\t(b) shall consider any other report or representation which may be
\nmade to it; and\n<\/p>\n
\t\t(c) may make such further enquiry as it think fit, as to the
\nsuitability of the case for treatment in a Borstal school and shall be satisfied
\nthat the character, state of health and mental condition of the offender and the
\nother circumstances of the case are such that the offender is likely to profit
\nby such instruction and discipline as aforesaid.\n<\/p>\n
\t\t(3) The report of a Probation Officer referred to in sub-section 2
\nshall be treated as confidential:\n<\/p>\n
\t\tProvided that the Court may, if it so think fit, communicate the
\nsubstance thereof to the offender and may give him an opportunity of producing
\nsuch evidence as may be relevant to the matter stated in the report.”
\n\t“10. Power of Inspector-General to transfer prisoners to Borstal School –
\n\t\tThe Inspector-General may, subject to rules made by the State
\nGovernment, if satisfied that any adolescent offender undergoing imprisonment in
\nconsequence of a sentence passed either before or after the passing of this Act
\nmight with advantage be detained in a Borstal school, direct that such person
\nshall be transferred from prison to a Borstal school, there to serve the whole
\nor any part of the unexpired residue of his sentence.  The provisions of this
\nAct shall thereupon apply to such person as if he had been originally sentenced
\nto detention in a Borstal school.”\n<\/p>\n
\t“10-A. Power of State Government to transfer offenders sentenced to
\ntransportation to Borstal Schools –\n<\/p>\n
\t\tThe State Government may, if satisfied that any offender who has
\nbeen sentenced to transportation either before or after the passing of the
\nMadras Borstal Schools (Amendment) Act, 1939, and who at the time of conviction
\nwas not less than 16 nor more than 21 years of age, might with advantage be
\ndetained in a Borstal School, direct that such offender shall be transferred to
\na Borstal School, there to serve the whole or any part of the unexpired residue
\nof his sentence.  The provisions of this Act shall apply to such offender as if
\nhe had been originally sentenced to detention in a Borstal School.
\n\tAn order may be made under this section notwithstanding that the sentence
\nof transportation has been subsequently commuted into a sentence of
\nimprisonment.”\n<\/p>\n
\t7.3.\tIn Pratap Singh V. State of Jharkhand and another (2005 (3) SCC\n<\/p>\n
551), the Constitutional Bench held that the law laid down in Arnit Das vs.
\nState of Bihar<\/a> (2000 (5) S.C.C. 488) was no longer  good law and it was not
\ncorrect and that Umesh Chandra V. State of Rajasthan<\/a> (1982 2 SCC 202) was
\ncorrect and that the relevant date for application of the Juvenile Justice Act
\nis the date of the occurrence and not the date of trial or the date of
\nproduction of the accused before the Court.  Though that was in the context of
\njuveniles, some of the observations of the Supreme Court where reference is made
\nto International Conventions are equally relevant when we deal with adolescent
\noffenders and they are extracted hereunder :\n<\/p>\n
\t“46. Rule 17 provides for guiding principles in adjudication and
\ndisposition which reads as under:\n<\/p>\n
\t\t‘17.1. The disposition of the competent authority shall be guided by
\nthe following principles:\n<\/p>\n
\t\t(a) The reaction taken shall always be in proportion not only to the
\ncircumstances and the gravity of the offence but also to the circumstances and
\nthe needs of the juvenile as well as to the needs of the society.\n<\/p>\n
\t\t(b) Restrictions on the personal liberty of the juvenile shall be
\nimposed only after careful consideration and shall be limited to the possible
\nminimum.\n<\/p>\n
\t\t(c) Deprivation of personal liberty shall not be imposed unless the
\njuvenile is adjudicated of a serious act involving violence against another
\nperson or of persistence in committing other serious offences and unless there
\nis no other appropriate response.\n<\/p>\n
\t\t(d) The well-being of the juvenile shall be the guiding factor in
\nthe consideration of her or his case.\n<\/p>\n
\t\t…\n<\/p>\n
\t106. We do not intend to say that no other view is possible. But in a case
\nof this nature where an additional protection had been granted pursuant to or in
\nfurtherance of the international treaties and keeping in view the experience
\nwhich had been gathered by Parliament after coming into force of the 1986 Act,
\nwe think that it should be read in such a fashion so that the extended benefit
\ncan be granted even to the juvenile under the 2000 Act.”\n<\/p>\n
Therefore, the present Act, where additional protection has been given to
\nadolescent offenders, should be read in such a fashion as to give maximum
\nbenefit to such offenders.\n<\/p>\n
\t7.4.\tIt is noticed that in G.O. Ms. No.1094 dated 06.05.1987, the State
\nconsidered whether Section 10 and 10(A) of the Tamil Nadu Borstal Schools Act
\nshould be amended suitably so as to transfer the  inmates of the Borstal Schools
\nto the Central Prison, after they have completed the age of 23 years to serve
\nthe unexpired portion of their sentence.  Since the Inspector General of Prisons
\nwas of the opinion that release of hundreds of prisoners would demoralise the
\nsociety, the then Advocate General gave his considered views in the matter and
\nopined that the proposed amendment would not be in consonance with the Scheme
\nand Object of the Borstal Schools Act and it would not be in order and
\ntherefore, the Government accepted the view of the Advocate General and directed
\nthat the adolescent offenders, who are transferred from the Central Prison to
\nthe Borstal School in accordance with the terms of Section 10 of the Section 10
\nof the Tamil Nadu Borstal Schools Act, 1925 should be released on the date they
\nattain the age of 23 years and that they need not be transferred to the Central
\nPrison to undergo the unexpired portion of their sentence of imprisonment.  So,
\nthis Court’s approach should also be to take that view which would extend the
\nbenefit to the maximum extent, without doing violation to the sections of the
\nAct, and even if another view was possible we should reject the narrower one.\n<\/p>\n
\t8.\tWhat is our National Policy for the welfare of children ?
\n\t8-A.\tIn Sheela Barse (II) and others Vs. Union of India and others (1986
\nS.C.C. (Crl) 352), the Supreme Court highlighted this as follows:
\n\t“If a child is a  national asset, it is the duty of the State to look
\nafter the child with a view to ensuring full development of its personality.
\nThat is why all the statutes dealing with children provide that a child shall
\nnot be kept in jail.  Even apart from this statutory prescription, it is
\nelementary that a jail is hardly a place where a child should be kept.  There
\ncan be no doubt that incarceration in jail would have the effect of dwarfing the
\ndevelopment of the child, exposing him to baneful influences, coarsening his
\nconscience and alienating him from the society.  It is a matter of regret that
\ndespite statutory provisions and frequent exhortations by social scientists,
\nthere are still a large number of children in different jails in the country as
\nis now evidence from the reports of the survey made by the District Judges
\npursuant to our order dated April 15, 1986.  Even where children are accused of
\noffences, they must not be kept in jails.  It is no answer on the part of the
\nState to say that it has not got enough number of remand homes or observation
\nhomes or other places where children can be kept and that is why they are lodged
\nin jails.  It is also no answer on the part of the State to urge that the ward
\nin the jail where the children are kept is separate from the ward in which the
\nother prisoners are detained.  It is the atmosphere of the jail which has a
\nhighly injurious effect on the mind of the child, estranging him from the
\nsociety and breeding in him aversion bordering on hatred against a system which
\nkeeps him in jail.  We would therefore, like once again to impress upon the
\nState Governments that they must set up necessary remand homes and observation
\nhomes when children accused of an offence can be lodged pending investigation
\nand trial. On no account should the children be kept in jail and if a State
\nGovernment has not got sufficient accommodation in its remand homes or
\nobservation homes, the children should be released on bail instead of being
\nsubjected to incarceration in jail.”\n<\/p>\n
So, the fresh, impressionable and malleable minds of the adolescent offenders
\ncannot be allowed to harden by their incarceration along with criminals. If
\nthere is a hope of reformation and restoration of a young offender by training
\nand education, the State must keep that hope alive. We should create that
\natmosphere for the adolescent offender which would help him to ‘grow out of’ the
\ncriminal tendencies, so that his mind is not concretised into a criminal one.\n<\/p>\n
\t9.\tNow, we will see how the Supreme Court and High Courts have
\nconsidered the  provisions of the Act.\n<\/p>\n
\t9.1.\tThe decision in 1984 S.C.C. (Crl) 635 (cited supra), makes it clear
\nas to how the Act should be understood, and in particular, Section 10-A :
\n\t“Its object was to make provision for the establishment and regulation of
\nBorstal Schools for detention and training of adolescent offenders.”
\n\t…\n<\/p>\n
\t“Any person who is not less than 16 years nor more than 21 years of age on
\nthe date of his conviction of an offence punishable with imprisonment or who
\nhaving been ordered to give security under Section 106 or Section 117 of the
\nCode fails to furnish such security is considered an adolescent offender under
\nthe Act. When such an offender is convicted of an offence punishable with
\nimprisonment it is the duty of the court convicting him to consider whether
\nhaving regard to his criminal habits or tendencies or association with persons
\nof bad character he should be detained for such period and under such
\ninstruction and discipline as appears most conducive to his reformation and
\nrepression of crime. If the court considers that it is desirable to do so it may
\nin substitution of the sentence of imprisonment pass a sentence of detention in
\na Borstal School for a term which shall not be less than two years and shall not
\nexceed five years. In no case he can be detained in a Borstal School beyond the
\nage of twenty three years. This outer limit of 23 years of age was introduced by
\nan amendment made by the Madras Borstal Schools (Amendment) Act, 1936 (Madras
\nAct 19 of 1936). Before passing such order of detention the court should satisfy
\nitself about matters set out in the proviso to Section 8 of the Act including
\nany report made by the probation officer of the area concerned. It is seen that
\nthe sentence of detention is passed in lieu of the sentence of imprisonment
\nwhich may have been passed. Hence the detention ordered under the above
\nprovision is not imprisonment and the Borstal School where the adolescent
\noffender is detained is not a prison. This is also the view taken by Beaumont,
\nC.J. in Emperor v. Lakshman Shivram, A.I.R.<\/a> 1933 Bom 461 (FB) which was a case
\narising under the Bombay Borstal Schools Act, 1929. Merely because Section 5 of
\nthe Act has made the Prisons Act, 1894 and Prisoners Act, 1900 applicable to a
\nBorstal School regarding matters not otherwise provided for does not make it a
\nprison or its inmates prisoners. The period of detention has no relationship to
\nthe sentence of imprisonment that could have been imposed under law. It is based
\non the opinion of the court as to what is conducive to the reformation of the
\nperson detained and the repression of the crime and in no case it can exceed
\nfive years or can be beyond the date on which the person attains 23 years of
\nage. Section 10-A of the Act which was introduced by the Madras Borstal Schools
\n(Amendment) Act, 1939 (Madras Act 13 of 1939) provides that the State Government
\nmay, if satisfied that any offender who has been sentenced to imprisonment for
\nlife and who at the time of conviction was not less than 16 years of age nor
\nmore than 21 years of age might, with advantage be detained in a Borstal School,
\ndirect that such offender shall be transferred to a Borstal School, there to
\nserve the whole or any part of the unexpired period of sentence. The second
\nsentence in Section 10-A of the Act is a deeming provision. It provides that the
\nprovisions of the Act shall apply to such offender as if he had been originally
\nsentenced to detention in a Borstal School. In view of this clause it is
\ncontended and we feel rightly that it would not be open to detain a person in a
\nBorstal School beyond the age of twenty-three years, nor can he be sent back to
\nthe prison except under Section 14 of the Act. Section 14 of the Act reads thus:
\n\t…”\n<\/p>\n
\t“In In re T. Munirathnam Reddi, A.I.R. 1955 Andhra 118,  Subba Rao, C.J.
\ndealing with the case of an adolescent offender who was convicted under Section
\n302 of the Indian Penal Code and sentenced to transportation for life observed
\nthus:\n<\/p>\n
\t\t‘In this case we are satisfied that the first accused is not a
\nhardened criminal. He was a student of Sri Venkateswara College and was below 21
\nyears at the time he was convicted of the offence. We have also found that he
\nshot the deceased when he abused him and his father presumably when they
\nquestioned him about his conduct in insulting his mother. The act was done by a
\nyoung man of good antecedents in an emotional state. In our view, Section 10-A,
\nBorstal Schools Act is really intended to govern the case of such accused. We,
\ntherefore, while sentencing the first accused to transportation for life,
\nrecommend his case to the Government to take action under Section 10-A and to
\ncommit him to the Borstal School for such period as they think fit’.”
\n\t“The High Court of Kerala appears to be unwilling to give full effect to
\nthe words “as if” in the second sentence of Section 10-A in view of the presence
\nof the words “the whole or any part of the unexpired residue of his sentence” at
\nthe end of the first sentence in Section 10-A of the Act. It is true that there
\nis some apparent contradiction between the two sentences. But having regard to
\nthe object of the legislation and the meaning of the words “as if” in the second
\nsentence, we should extend all the privileges available to an offender detained
\nunder Section 8 of the Act to a prisoner who is directed to be transferred to a
\nBorstal School under Section 10 -A. The object of the legislation is to reform
\noffenders who have committed acts visiting them with the penalty of undergoing
\nprison life when they were between 16 and 21 years of age and that is sought to
\nbe achieved by taking them away from the company of adult prisoners whose
\ncontinued association in a prison would have serious adverse influence on their
\ncharacter. If every person who is transferred under Section 10-A to a Borstal
\nSchool is to remain there until he serves out the entire period of imprisonment
\nfor life, the Borstal School would soon become a prison consisting of “lifers”
\nand its other inmates who are detained under Section 8 would be keeping company
\nwith adult offenders, thus defeating the very object of establishing a Borstal
\nSchool. The court should as far as possible avoid a construction which will make
\nthe legislation futile. The second reason is that the words “as if” appearing in
\nthe second sentence in Section 10-A make it a deeming provision and such deeming
\nprovision should in law be carried to its logical end.”\n<\/p>\n
\t“…It is well known that persons who commit acts which are forbidden by
\nlaw are ordinarily classified into groups on the basis of their age for
\ndetermining their liability under criminal law. Section 82 of the Indian Penal
\nCode declares that nothing is an offence which is done by a child under seven
\nyears of age. Section 83 of the Indian Penal Code provides that nothing is an
\noffence which is done by a child above seven years of age and under twelve, who
\nhas not attained sufficient maturity of understanding to judge the nature and
\nconsequences of his conduct on that occasion. Children who are below 15 or 16
\nyears of age are entitled to the protection of certain beneficent provisions in
\nthe various Children’s Acts in force in different parts of the country. Section
\n360 of the Code again provides for releasing on probation of good conduct or
\nafter admonition a person under twenty-one years of age who is convicted of an
\noffence not punishable with death or imprisonment for life, and no previous
\nconviction i s proved against him. The Act with which we are concerned in this
\ncase is again one such law which attempts to treat an adolescent offender in a
\nhumane way. The classification of offenders on the basis of age for purposes of
\ncriminal law is, therefore, beyond reproach.”\n<\/p>\n
\t“Considering the case in the light of the observations made in Maru Ram’s
\ncase I feel that Section 10-A of the Act remains unimpaired and it has to be
\ngiven full effect even after the enactment of Section 433-A of the Code. The
\ncontrary view expressed by the Madras High Court in In re Ganapati cannot be
\naccepted as correct.”\n<\/p>\n
We must bear in mind the words above which refers to this law as one which
\n“attempts to treat the adolescent offender in a humane way”. So, we are bound to
\nadopt that construction which strengthens this attempt.
\n\t9.2.\tIn Karupayee vs. State (1997 (1) L.W. (Crl.) 15), a Division Bench
\nof this Court observed as follows :\n<\/p>\n
\t“So, the view taken by the Supreme Court is that when a person was
\ndetained in a Borstal School, he shall not be transferred to the prison after he
\nserved out the term of the detention in the school with reference to the age as
\nprescribed under the Act, as it will defeat the very object of the Borstal
\nSchool Act.”\n<\/p>\n
\t9.3.\tIn Kittan’s case (cited supra), Horwill, J., speaking for the Bench,
\nobserved thus :\n<\/p>\n
\t“The learned advocate for the appellant concedes that the evidence has
\nmade out a case of murder; but he contends that the appellant should be dealt
\nwith under S.10A, Borstal Schools Act.  It is conceded that S.8 would not apply;
\nbut it seems clear that under S.10A of the Act, the Provincial Government has
\npower, in a case where an offender is of the age of the appellant, who is 17
\nyears, and has been sentenced to transportation for life, to send him to a
\nBorstal School if they consider that he might with advantage be detained in such
\nan institution.  The appellant is psychologically somewhat abnormal and not a
\nhardened criminal.  If no action is taken under S.10-A of the Act, it is
\ndifficult to think what suitable action can be taken against the appellant.  His
\ncrime does not merit a life sentence; and association with hardened criminals
\nin an ordinary jail would cause his character to deteriorate.  On the other
\nhand, he might under the sympathetic guidance of the Superintendent of a Borstal
\nSchool, be helped to adapt himself better to the problems of life.”
\nThe following phrases from the above paragraph guide us in the present case –
\n“he might with advantage be detained”, “association with hardened criminals in
\nan ordinary jail would cause his character to deteriorate”, “sympathetic
\nguidance”, “to adapt himself better”.  That construction which will satisfy the
\nabove criteria will be the correct one.It is necessary to remember that the
\nconcesssion that S.8 will not apply was given at a time when “transportation”
\nwas a punishment which could be awarded, and to an offender who was sentenced to
\ntransportation the definition will not apply.\n<\/p>\n
\t9.4.\tIn re Ganapathy’s case (1982 L.W. (Crl) 217), paragraphs 16 and 17
\nfrom Public Prosecutor vs. Nagappa Poojari<\/a> (1947 M.W.N. Crl. ) have been
\nextracted as follows :\n<\/p>\n
\t“16. An interesting question as to the interpretation of S.8 and the
\nconditions precedent for the application of the said section arose in Public
\nProsecutor vs. Nagappa Poojari<\/a> (1947 M.W.N. Crl. 6).  In that case, the Sessions
\nJudge who tries the accused refused to apply S.8 of the Act, holding that there
\nwas no evidence that the accused had criminal tendencies or bad association as
\ncontemplated therein.  Subba Rao, J., as he then was, speaking for the Bench,
\nwhile examining the interpretation given by the learned trial Judge, has
\nobserved as follows :\n<\/p>\n
\t\t“The condition precedent to the application of S.8 is that the
\nadolescent offender should have criminal habits or tendencies or association
\nwith persons of bad character.\n<\/p>\n
\t\tIf the learned Judge’s interpretation of that S.8 were to be
\naccepted, it would mean that a person who has no criminal tendencies would be
\nsent to the ordinary jail whereas a person with criminal tendencies will be sent
\nto the Borstal School.  This interpretation would defeat the object of the Act
\nitself.  If a person without criminal tendencies is sent to a jail, there is
\ngreater danger of his contamination by his association with hard criminals,
\nwhereas the object of the Act is to send such people to a Borstal School, so
\nthat they may have good training and come out of it to become useful citizens.
\nThe words ‘criminal tendencies’ should not be given a narrow interpretation.  If
\na boy had no criminal tendencies, he would not be convicted for any crime at
\nall.  The fact that the boy is convicted for one offence or other under the
\nIndian Penal Code shows, in the view of the Court, convicting him that he has
\ncriminal tendencies.  He would interpret the section to mean that whenever an
\nadolescent was convicted of an offence, ordinarily he should be given the
\nadvantage of being out in the Borstal School so that by long association and
\ntraining he would come out of the termination of the stay as a useful citizen of
\nthe country.”\n<\/p>\n
\tMack, J., while agreeing with the judgment of Subba Rao, J., has observed
\nthat a criminal tendency does not manifest itself only in acts involving
\ndishonesty, such as theft or cheating and that a person who, owing to lack of
\nself-control or as a result of his environment, is unable to restrain himself
\nand commits an offence of either grievous hurt or homicide by using a deadly
\nweapon without regard to consequences, exhibits a criminal tendency, just as
\nmuch as a person who steals and that it is difficult to lay down hard and fast
\nconditions as to the type of adolescents who should be sent to a borstal school.\n<\/p>\n
\t17. S.8(2) deals with the statutory formalities to be observed by the
\nCourt before passing the order of borstal detention, and as per that provision,
\nthe Court should call for a report from the Probation Officer and consider the
\nsame or any other report or representation which may be made to it and also may
\nmake any further enquiry as it thinks fit as to the suitability of the case for
\ntreatment in a Borstal School, and shall be satisfied that the character, state
\nof health and mental condition of the offender and other circumstances of the
\ncase are such that the offender is likely to profit by such instruction and
\ndiscipline.  It is within the discretionary power of the court to communicate
\nthe substance of the report of the Probation Officer to the offender, thereby
\naffording him an opportunity of producing such evidence as may be relevant to
\nthe matter stated in the report.”\n<\/p>\n
So, it is clear that we must avoid that interpretation which would defeat the
\nobject itself.\n<\/p>\n
\t9.5.In Subbhash Chand v. State of Haryana ((1988) 1 S.C.C. 717), the claim
\nof the convict that he was entitled to the benefits of Borstal Schools Act was
\nrejected.  The petitioner in that case was an adolescent, admittedly being less
\nthan 21 years of age, but the Supreme Court rejected his case, because the
\nconvict was governed by the provisions of the Punjab Borstal Act and the
\ndefinition of ‘offence’ in Punjab Borstal Act is different and the Supreme Court
\nin the said decision drew the distinction between the application of Punjab
\nBorstal Act and the Andhra Pradesh Borstal Schools Act.  Admittedly, the Andhra
\nPradesh Borstal Schools Act and the Tamil Nadu Borstal Schools Act are
\nidentical. Therefore, the above decision will not in any way affect the
\nadolescent offenders who are governed by the Tamil Nadu Borstal Schools Act.
\nThe Supreme Court held as follows :\n<\/p>\n
\t“3. Under the Punjab Act, “offence” has been defined in Section 2(4) to
\nmean –\n<\/p>\n
\t“an offence punishable with transportation or rigorous imprisonment under
\nthe Indian Penal Code other than-\n<\/p>\n
\t(a) an offence punishable with death;”\n<\/p>\n
\tHava Singh case, (1987) 4 SCC 207 did not refer to the definition of
\n“offence” and relied upon the decision in the case of Ravi 2 though the scheme
\nof the Andhra Act was very different. The Andhra Act known as the Andhra Pradesh
\nBorstal Schools Act, 1925, does not have the definition of “offence” and there
\nis no exclusion as provided in the Punjab Act.\n<\/p>\n
\t4. What is excepted in the definition is an offence which is punishable
\nwith death. Section 302 of the Indian Penal Code provides:
\n\t“Whoever commits murder shall be punished with death, or imprisonment for
\nlife, and shall also be liable to fine.”\n<\/p>\n
\tOne of the punishments for the offence of murder is death and, therefore,
\nthe offence of murder would be covered within Section 2(4)(i)(a) of the Punjab
\nAct and to such a conviction the Punjab Borstal Act would have no application.
\nSupport for such a view is available from several decisions of different High
\nCourts. Section 562(1) of the Code of Criminal Procedure of 1898 as amended in
\n1923 brought in the phrase:\n<\/p>\n
\t“Punishable with death or transportation for life.”\n<\/p>\n
\tIn Emperor v. Janki, AIR 1932 Nag 130 that phrase was interpreted
\ndisjunctively and women convicted of an offence for which transportation for
\nlife was one of the punishments provided were held ineligible for release on
\nprobation under Section 562. It was pointed out that the words “death or
\ntransportation for life” must be read as referring to offences the penalty for
\nwhich provided by the Penal Code contains either death or transportation for
\nlife as one of the punishments awarded and not necessarily both. Reliance was
\nplaced on a Full B ench decision of the Rangoon High Court in King Emperor v.
\nNga San Htwa, AIR 1927 Rang 205 which was dealing with a similar phrase
\noccurring in Section 497 of the old Code. A Division Bench of the Madhya Pradesh
\nHigh Court in Chetti v. State of Madhya Pradesh, AIR 1959 MP 291 also took the
\nsame view. In Emperor v. Bahawali, AIR 1928 Lah 920 it was held that as one of
\nthe alternative punishments for that offence under Section 307 of the Penal
\nCode, is transportation for life, it is obvious that Section 562 is not
\napplicable and the accused must be sentenced to rigorous imprisonment and fine.
\nThe Allahabad High Court in the case of State v. Sheo Shanker, AIR<\/a> 1956 All 326,
\nthe Madras High Court in Public Prosecutor of Madras v. Paneswara Rao, AIR<\/a> 1946
\nMad 173, the Rajasthan High Court in Sarkar v. Jalamsingh, AIR 1950 Raj 28 and
\nBombay High Court in Naranji Premji v. Emperor, AIR 1928 Bom 244 have taken the
\nsame view.”\n<\/p>\n
So, all these decisions, and especially the Vallabhapuram Ravi’s case, which has
\nbeen quoted extensively above, clearly show that –\n<\/p>\n
\t(a) classification of offenders on the basis of age is legal;\n<\/p>\n
\t(b) even if there are some contradictions in the statute, we must extend
\nall privileges to the offenders;\n<\/p>\n
\t(c) the object of the Act, viz., to reform offenders must be remembered
\nwhile construing the Act.\n<\/p>\n
\t10.\tCan the word ‘imprisonment’ in Section 2 of the Act be construed to
\ninclude imprisonment for life ?\n<\/p>\n
\t10.1.Section 53 of the Indian Penal Code provides for the following
\npunishments to which offenders will be liable under the provisions of this Code
\nare:-\n<\/p>\n
\tFirstly, – Death;\n<\/p>\n
\ta[Secondly, – Imprisonment of life;\n<\/p>\n
\tb[*****]
\n\tFourthly, – Imprisonment, which is of two descriptions, namely:-
\n\t(1) Rigorous, that is, with hard labour;\n<\/p>\n
\t(2) Simple;\n<\/p>\n
\tFifthly, – Forfeiture of property;\n<\/p>\n
\tSixthly, – Fine.\n<\/p>\n
\t[a] was substituted for the words “secondly, – Transportation” by the Code
\nof Criminal Procedure (Amendment) Act, 1955 (26 of 1955), S.117 and Schedule,
\nitem 1 (1-1-1956)
\n\t[b] Clause “Thirdly, – Penal servitude” omitted by Criminal Law (Removal
\nof Racial Discriminations) Act, 1949 (17 of 1949), S.2(1) (6-4-1949)
\nTherefore, when the Act came into force, “imprisonment for life” was not one of
\nthe punishments enumerated under the Code itself.  Hence, Section 10 (A) of the
\nAct was enacted to bring even those offenders who were sentenced to
\ntransportation and not imprisonment.  Such offenders who derive the benefit of
\nthe Act would suffer even more if they are sentenced to transportation.
\nTherefore, it was provided that the State Government may, if satisfied that any
\noffender who has been sentenced to transportation either before or after the
\npassing  of the Madras Borstal Schools (Amendment) Act, 1939 and who at the time
\nof conviction was not less than 16 years of age nor more than 21 years of age
\nmight, with advantage be detained in a Borstal School, as if he had been
\noriginally sentenced to detention under Section 8. But subsequently, by the
\namendment Act 26 of 55, the word ‘transportation’ was altered to “imprisonment
\nof life”.  But we must bear in mind how the section read originally, where the
\ndefinition referred to ‘imprisonment’ and not ‘transportation’ and Section 10A
\nreferred to ‘transportation’.\n<\/p>\n
\t10.2.In 1982 L.W.(Crl) 217 (cited supra), the Division Bench referred to a
\ndecision of this Court in Re Yakub (C.A.1223\/70, dt.2nd December, 1971), wherein
\nthe Bench drew the distinction between the position under the Tamil Nadu
\nChildren Act and the Tamil Nadu Borstal Schools Act and held that for the
\npurpose of Tamil Nadu Children Act, there will be no difference between
\nimprisonment and imprisonment for life.  They referred to and agreed with the
\nview taken by another Division Bench in Criminal Appeal Nos.37 to 41 and 141 of
\n1960 dated 1st February 1966,  they referred to the distinction in S.53 between
\nthe terms “imprisonment for life” and “imprisonment”.  But, however in
\nC.A.1223\/70 dated 2nd December 1971, Re Yakub’s case, the Bench still maintained
\nthat the distinction between “imprisonment for life” and “imprisonment” is
\ncrucial in Borstal Schools Act and that where the offence is punishable under
\nimprisonment for life, it is the State Government alone which can act and the
\nCourt cannot act under S.8. The question that came before the Division Bench was
\n“whether the order of the learned trial Judge sentencing the accused to undergo
\nimprisonment for life and further recommending to the Government of Tamil Nadu
\nfor passing an order under S.10-A of the Act, directing him to be transferred to
\na Borstal Schools Act where he is to be detained for a certain number of years
\nout of the total period of imprisonment imposed on him, is sustainable, or
\nwhether the trial Judge should have straightaway applied S.8 of the Act and
\nsentenced the accused to borstal detention and while deciding that question they
\nconsidered the difference between the applicability of Section 8 and Section
\n10(A) and held,
\n\t“24. Thus, it is clear that there is a vast difference between the scope
\nand applicability of S.8 and S.10-A of the Act, in that the Court can exercise
\nits power only in cases where the sentence of imprisonment simpliciter falling
\nunder Cl.4 of S.53, I.P.C., is to be imposed, and not in cases where the
\nsentence of imprisonment for life falling under Cl.2 of S.53 is to be imposed,
\nin which cases only the State Government has got the discretion to order borstal
\ndetention under S.10-A of the Act.  See Krishnaswami V. The King (1948 M.W.N.
\n(Crl.) 117), Periaswami Asari V. The King (1948 M.W.N. Crl. 157) and the
\njudgments of this Court in Criminal Appeals Nos.803\/60 and 983\/60, Judgment of
\nthis Court in Crl.App. No.803\/60, dt. 25th October, 1961, and Judgment of this
\nCourt, Crl.App. No.983\/60 dated 30th January, 1962, in which recommendations
\nwere made to the State Government under S.10A of the Act in cases similar to the
\npresent one”\n<\/p>\n
and while deciding what is the maximum period for which an offender to whom
\nSection 10A to be applied, held that,
\n\t“therefore, it would follow in such cases an offender after attaining the
\nmaximum age upto which he could be detained in the borstal school, has
\nnecessarily to be transferred to the prison so that he could serve the unexpired
\nportion of the sentence.”\n<\/p>\n
\t10.3.We have seen that in Vallabhapuram Ravi’s case, the Supreme Court
\noverruled this decision and held that once the protection of Section 10A is
\nextended to an offender, he has to be treated as if under Section 8 of the
\nBorstal Schools Act relating to maximum period would apply and therefore, the
\nquestion of sending the offender back to the prison would not arise.  In that
\ndecision, it has also been held that after an order under Section 10A is passed,
\nSection 8 would apply.  This means, and this is important, that it is not
\nadolescent offenders who are life prisoners, or sentenced to life imprisonment,
\nwho cannot get the protection of Section 8; so the apparent inhibition that they
\nare ‘out of bounds’ is without basis.  Even in Ganapathy In re’s case, the
\nDivision Bench noticed the anomaly viz., the purpose for which the borstal
\ndetention was ordered would completely be defeated by such a re-transfer to the
\nprison, because the object of detention in pursuance of this Borstal Schools Act
\nis for giving industrial training and other instructions and the persons so
\ndetained are subject to disciplinary and moral influences, as will be conducive
\nto their formation and the prevention of crimes. Only for the purpose of
\ncarrying out the above object, S.4 empowers the State Government to make rules
\nwith regard to the treatment, maintenance, education (professional, vocational
\nor technical training), control of inmates etc.,  To send back such a person
\nafter getting such a training, to the prison, thereby allowing him to mingle
\nwith the hardened, incorrigible and habitual offenders, would, in our view,
\ncompletely nullify the reformation that would have been brought about with
\nrespect to the offender during his borstal detention.”
\n\t10.4.In 2006 2 L.W. (Crl)883 (cited supra), the Division Bench held that
\nthough the decision in Ganapathy In re was overruled, it was only that portion
\nof that judgment which declared that after the expiry of the detention of
\nBorstal School, the person sentenced to life imprisonment must go to regular
\nprison was reversed.  In Ramasamy’s case (cited supra), the Division Bench of
\nthis Court on the basis of Vallabhapuram Ravi’s case accepted the contention
\nthat the Sessions Judge was not justified in sentencing the accused imprisonment
\nfor life, since admittedly the accused was an “adolescent offender” at the time
\nof conviction he was below 21 years of age.  The cases referred to in In re
\nKrishnaswamy (AIR 1949 Mad 109(1) and In re T. Munirathinam Reddi (AIR 1955
\nAndhra 118) will really not help us in the question that is raised in this case
\nbecause they were all cases where the offender was sentenced to transportation
\nand therefore, clearly Section 2(1) would not apply to such offenders.  Section
\n2(1) is applicable only to cases where the sentence is one of imprisonment, the
\nissue is whether we should bring life convicted adolescent offenders under the
\nprotection umbrella.\n<\/p>\n
\t10.5.In the decision in W.P. MD. No.4671 of 2006 which deals with
\nadolescent offenders prior to their conviction, it was held as follows:
\n\t“On a total analysis of the above referred to decisions and a close
\nreading of the provisions contained in Sections 2(1), 8 and 10-A of the Madras
\nBorstal Schools Act, read along with Sections 167 and 309 of the Criminal
\nProcedure Code, we are convinced that the prayer of the petitioner has to be
\ninstantaneously ordered in order to arrest any future mishappening taking place
\nin respect of the custody and detention of ‘adolescent offenders’ at the pre-
\nconviction stage.  There is no point in stating that the Madras Borstal Schools
\nAct does not talk of a treatment to be meted out to an adolescent offender prior
\nto his conviction and state that such an ‘adolescent offender’ can be kept in
\ndetention during pre-conviction stage at the discretion of the concerned
\njudicial Magistrate for ordering such a detention of custody in a regular
\nprison.  If after conviction of an adolescent offender it has been thought of by
\nthe legislature to order such detention only in a Borstal School, it will have
\nto be held that at the pre-conviction stage also the same principle should be
\napplied and the Judicial Magistrate concerned, while ordering the detention of
\nan adolescent offender, should ensure that such detention is entrusted with the
\ncustody of the Borstal School and not in a regular jail.  If any other course is
\nadopted by the Judicial Magistrate, it would run counter to the object and
\npurport of the enactment, namely The Madras Borstal Schools Act, and the same
\ncannot be permitted to be continued.”\n<\/p>\n
The Division Bench did not make any difference between the “adolescent
\noffenders” who were charged with offences for which the punishment of
\nimprisonment for life was sentenced and also the “offenders” who were charged
\nwith offences for which the punishment of imprisonment for life was sentenced.
\nIn any event, in Kamalanantha’s case the Supreme Court has clearly held that
\nimprisonment includes imprisonment for life also.\n<\/p>\n
\t10.6.In Kamalanantha v. State of T.N. ((2005) 5 S.C.C. 194), it was held
\nthus at page 229 :\n<\/p>\n
\t“76. The contention of Mr Jethmalani that the term “imprisonment” enjoined
\nin Section 31 CrPC does not include imprisonment for life is unacceptable. The
\nterm “imprisonment” is not defined under the Code of Criminal Procedure. Section
\n31 of the Code falls under Chapter III of the Code which deals with power of
\ncourts. Section 28 of the Code empowers the High Court to pass any sentence
\nauthorised by law. Similarly, the Sessions Judge and Additional Sessions Judge
\nmay pass any sentence authorised by law, except the sentence of death which
\nshall be subject to confirmation by the High Court. In our opinion the term
\n“imprisonment” would include the sentence of imprisonment for life.”
\n\t10.7.To the same effect is the judgment of the Division Bench (In Re
\nYakub, C.A. No.1223 of 1970 dated 2.12.1971) which was quoted in re Ganapathy’s
\ncase.  Though, of course, in re Yakub’s case, the Court held that the distiction
\nmust be retained in Bortsal Schools Act But in view of the law laid down by the
\nSupreme Court that imprisonment includes imprisonment for life, we see no reaon
\nwhy we should understand Section 2(1)as including only those who are sentenced
\nto imprisonment for a term, and not  offenders who are sentenced to imprisonment
\nfor life.  A construction of such nature would neither be in consonance with the
\nspirit of the Act, but it would also be contrary to the law laid down by the
\nSupreme Court in Kamlanantha’s case. We have already seen that in Vallabhapuram
\nRavi’s case, the Supreme Court had construed Section 10A in favour of the
\n“adolescent offenders” and held that the words ‘unexpired residue of the
\nsentence’ cannot mean that the adolescent offender should be sent back to prison
\nso that the protection given by Section 8 would apply in full force, but it
\nwould mean that they should be sent to Borstal Schools, which would be for a
\nperiod of five years or till the offender reaches the age of 23 years.
\n\t10.8.Insofar as the manner in which the Section has to be interpreted, the
\nSupreme Court in New India Assurance Co. vs. Nusli Neville Wadia<\/a> (2007 (14)
\nSCALE 556), while dealing with the question how to read the provisions of an Act
\nin a proper and effective manner which would lead the beneficiary under the
\nstatutory scheme to fulfill its constitutional obligations, quoted the following
\nobservations of Justice Aharon Barak of the Supreme Court of Israel on purposive
\ninterpretation :-\n<\/p>\n
\t“Barak in his exhaustive work on ‘purposive construction’ explains various
\nmeanings attributed to the term ‘purpose’.  It would be in the fitness of
\ndiscussion to refer to purposive construction in Barak’s words :\n<\/p>\n
\t\t“Hart and Sachs also appear to treat ‘purpose’ as a subjective
\nconcept.  I say ‘appear’ because, although Hart and Sachs claim that the
\ninterpreter should imagine himself or herself in the legislator’s shoes, they
\nintroduce two elements of objectivity – first, the interpreter should assume
\nthat the legislature is composed of reasonable people seeking to achieve
\nreasonable goals in a reasonable manner; and second, the interpreter should
\naccept the non-rebuttable presumption that members of the legislative body
\nsought to fulfill their constitutional duties in good faith. This formulation
\nallows the interpreter to enquire not into the subjective intent of the author,
\nbut rather the intent the author would have had, had he or she acted
\nreasonably”.”\n<\/p>\n
We have already seen that the position existing at the time of the Act was that
\nthere was no imprisonment for life.  The offenders who came under Section 10-A
\nwere those offenders who were sentenced to transportation.  Now, to understand
\nhow one should interpret Acts when a new state of affairs comes into existence,
\nwe refer to the following extract from Royal College of Nursing of the UK vs.
\nDept. of Health and Social Security, (1981) 1 All ER 545 :
\n\t“In interpreting an Act of Parliament it is proper, and indeed necessary,
\nto have regard to the state of affairs existing, and known by Parliament to be
\nexisting, at the time.  It is a fair presumption that Parliament’s policy or
\nintention is directed to that state of affairs.  Leaving aside cases of omission
\nby inadvertance, this being not such a case when a new state of affairs, or a
\nfresh set of facts bearing on policy comes into existence, the courts have gto
\nconsider whether they fall within the parliamentary intention.  They may be held
\nto do so if they fall within the same genus of facts as those to which the
\nexpressed policy has been formulated.  They may also be held to do so if there
\ncan be detected a clear purpose in the legislation which can only be fulfilled
\nif the extension is made.  How liberally these principles may be applied must
\ndepend on the nature of the enactment, and the strictness or otherwise of the
\nwords in which it has been expressed.  The courts should be less willing to
\nextend expressed meanings if it is clear that the Act in question was designed
\nto be restrictive or cimcumscribed in its operation rather than liberal or
\npermissive.  They will be much less willing to do so where the new subject
\nmatter is different in kind or dimension from that for which the legislation was
\npassed. In any event there is one course which the courts cannot take under the
\nlaw of this country: they cannot fill gaps; they cannot by asking the question,
\n‘What would Parliament have done in this current case, not being one in
\ncontemplatkion, if the facts had been before it?”, attempt themselves to supply
\nthe answer, if the answer is not to be found in the terms of the Act itself’.”
\n\t10.8. In this case, the answer is obtained in terms of the Act itself.  We
\nhave seen why the legislature felt that imprisonment would not be in the
\ninterest of the psychological and emotional development of the young offender.
\nIf so, the only way to interpret the Act would be to construe the word
\n‘imprisonment’ to include ‘imprisonment for life’.  The amendment to Section 10-
\nA was purely consequential to the amendment of the Code of Criminal Procedure.
\nBut, when this issue is raised, we can answer it only like this, i.e., in favour
\nof the adolescent.  Therefore, the inclusion of the phrase “imprisonment for
\nlife” within the definition of the “adolescent offender” will alone be in
\nconsonance with the spirit of the Act.\n<\/p>\n
\t11.\tNow, we shall examine the relevant provisions of the Tamil Nadu
\nBorstal Schools Act, viz., Sections 8, 10 and 10-A :\n<\/p>\n
\t11.1.The Act was intended to protect “adolescent offenders” from close
\ncontact with adult prisoners so that they are not set on the path of crime
\nirreversibly.\n<\/p>\n
\t11.2.Section 8, which has been extracted above, clearly lays down that the
\nsentence of detention in a Borstal Schools Act shall not be less than three
\nyears and shall not exceed 5 year but in no case extending beyond the date on
\nwhich the adolescent offender will in the opinion of the court attain the age of
\ntwenty three years. Therefore, the Borstal School detention shall not exceed
\nfive years and in no case shall extend beyond the adolescent offender attaining
\nthe age of 23.  Section 10A provides for detention of an offender in a Borstal
\nSchool, who is sentenced to transportation with a further clause that he has to
\nserve the whole or any part of the unexpired residue of his sentence in that
\ninstitution.\n<\/p>\n
\t11.3.An important difference between Section 8 and Section 10 and 10(A) is
\nrelevant for the purpose of this case.  Section 8 deals with the power of Court
\nto pass sentence of detention in Borstal School.  It provides that the Court
\nwhich has the jurisdiction under this Act shall in lieu of passing a sentence of
\nimprisonment may pass a sentence of detention in a Borstal School for  a term
\nwhich shall not be less than two years and shall  not exceed five years but in
\nno case extending beyond the date on which the adolescent offender will in the
\nopinion of the court attain the age of twenty three years to the adolescent
\noffender who by reason of his criminal habits or tendencies, or association with
\npersons of bad character, be subjected to detention for such term and under such
\ninstruction and discipline as appears most conducive to his reformation and the
\nrepression of crime.\n<\/p>\n
\t11.4.If we compare this with the language in The Juvenile Justice (C & P
\nof Children) Act, 2000, the bar under in this Act is absolute.\n<\/p>\n
\t16. Order that may not be passed against juvenile – (1)Notwithstanding
\nanything to the contrary contained in any other law for the time being in force,
\nno juvenile in conflict with law shall be sentenced to death or life
\nimprisonment, or committed to prison in default of payment of fine or in default
\nof furnishing security\t:\n<\/p>\n
\tProvided that where a juvenile who has attained the age of sixteen years
\nhas committed an offence and the Board is satisfied that the offence committed
\nis so serious in nature or that his conduct and behaviour have been such that it
\nwould not be in his interest or in the interest of other juvenile in a special
\nhome to send him to such special home and that none of the other measures
\nprovided under this Act is suitable or sufficient, the Board may order the
\njuvenile in conflict with law to be kept in such place of safety and in such
\nmanner as it thinks fit and shall report the case for the order of the State
\nGovernment.\n<\/p>\n
\t(2) On receipt of a report from a Board under sub-section (1), the State
\nGovernment may make such arrangement in respect of the juvenile as it deems
\nproper and may order such juvenile to be kept under protective custody at such
\nplace and on such conditions as it thinks fit:\n<\/p>\n
\tProvided that the period of detention so ordered shall not exceed the
\nmaximum period of imprisonment to which the juvenile could have been sentenced
\nfor the offence committed.\n<\/p>\n
\t17. Proceeding under Chapter VIII of the Code of Criminal Procedure not
\ncompetent against juvenile – Notwithstanding anything to the contrary contained
\nin the Code of Criminal Procedure, 1973 ( 2 of 1974) no proceeding shall be
\ninstituted and no order shall be passed against the juvenile under Chapter VIII
\nof the said Code.”\n<\/p>\n
No juvenile in conflict with law shall be sentenced to death or committed to
\nprison in default of payment of fine or in default of furnishing security.  No
\nproceedings shall be instituted and no order shall be passed against the
\njuvenile under Chapter VIII of the said Code.  There can be no joint proceedings
\nof juvenile and person not a juvenile and therefore, where a juvenile is
\nconcerned, the Juvenile Justice Act is the complete Code and the ordinary Court
\nceases to have jurisdiction to try a juvenile, either he is a sole accused or
\nwhere he is a co-accused.\n<\/p>\n
\t11.5.Whereas, the language of Section 8 of the Borstal Schools Act is
\nclearly different. The Court shall consider whether in lieu of passing a
\nsentence of imprisonment, it shall pass a sentence of detention in Borstal
\nSchool and before passing a sentence of detention, the Court shall call for a
\nreport from the Probation Officer where the offender permanently resided and any
\nother report or representation it shall make further enquiry at it thinks fit as
\nto the suitability of the case for treatment in Borstal Schools Act. Therefore,
\nthe Court is given the power to decide the suitability of the offender to be
\nsent to Borstal detention in lieu of imprisonment.  An apprehension may arise
\nwhether undeserving convicts would get the benefit of this provision merely
\nbecause they are adolescent offenders. But, this apprehension must be rejected
\nas baseless since Section gives the Court the discretion to pass either a
\nsentence of imprisonment or detention in a Borstal School.  It is the Court
\nwhich has the duty to exercise this discretion properly. But, Sections 10 and
\n10-A give the power to the Inspector General of Police and the State Government
\nto transfer prisoners to Borstal School. Neither of the two authorities have the
\npower to pass a sentence of detention in a Borstal School.  Only the Court has
\nthat power. The power under Sections 10 and 10-A is a power of transfer to a
\nBorstal school after a sentence of imprisonment has been passed by the Court.
\nSection 10 which deals with  adolescent offender undergoing imprisonment in
\nconsequence of a sentence passed either before or after the passing of this Act
\nmight with advantage be detained in a Borstal school, directs that such person
\nshall be transferred from prison to a Borstal school, there to serve the whole
\nor any part of the unexpired residue of his sentence. Similarly, Section 10 (A)
\nalso deals with power of State Government to transfer offenders who have been
\nsentenced to transportation.  Therefore, Section 8 is a first stage where in
\nlieu of a sentence of imprisonment, sentence of Borstal School detention is
\npassed.  Section 10 and 10(A) come later where a sentence of imprisonment has
\nbeen passed and thereafter, the Inspector General or the State Government,as the
\ncase may be, shall direct transfer of that offender to Borstal School and other
\nprovisions shall apply as if he had been originally sentenced to detention in a
\nBorstal School under S.8.\n<\/p>\n
\t11.6.If the Section is so read then it would not do violation either to
\nthe objects and the scheme of the Act or the meaning of the Section.\n<\/p>\n
\t12. Sentencing Adolescent Offenders :\n<\/p>\n
\tThe reason for considering an alternative to imprisonment for adolescent
\noffenders explained in the Objects and Reasons of the Act itself and also in the
\nextracts of some of the above mentioned judgments.  In Lingala Vijay Kumar vs.
\nPublic Prosecutor,<\/a> (1978) 4 S.C.C. 196, seven appellants, all aged about 17,
\nwere convicted for dacoity.  The Supreme Court referred to them as selfless
\nideologues who wanted to ‘secure economic justice’ and in that context, the
\nSupreme Court had quoted from Hans Kelson in a farewell lecture in Berkley with
\nregard to what is meant by ends of justice and the following are the
\nobservations :\n<\/p>\n
\t“Thus, behind the question of Pilate, ‘What is truth’? arises, out of the
\nblood of Christ, another still more important question, the eternal question of
\nmankind, What is Justice?\n<\/p>\n
\tNo other question has been discussed so passionately; no other question
\nhas caused so much precious blood and so many bitter tears to be shed; no other
\nquestion has been the object of so much intensive thinking by the most
\nillustrious from Plato to Kant; and yet, this question is today as unanswered as
\nit ever was. It seems that it is one of those questions to which the resigned
\nwisdom applies that ‘man cannot find a definitive answer, but can only try
\nimprove the question’.”\n<\/p>\n
Some of the observations contained in the said judgment are relevant :
\n\t“…we feel impelled to make a few observations on prison justice since
\nunder the Court’s mandate these seven teenagers are being sent into that world
\nwithin the world which is substantially sight-proof and sound-proof. The court
\nhas responsibility to see that punishment serves social defence which is the
\nvalidation of deprivation of citizen’s liberty. Correctional treatment, with a
\nrehabilitative orientation, is an imperative of modern penology which has
\nabandoned jus talionis.”\n<\/p>\n
\t“By cruel treatment within the cell you injure his psyche and injury never
\nimproves. Nay, you make him recidivist, embittered and ready to battle with
\nsociety on emerging from the jail gates.\n<\/p>\n
Again, in Hiralal Mallick vs. State of Bihar<\/a> (1977) 4 S.C.C. 44, the Supreme
\nCourt observes ‘criminality comes first, humanised sentence next’. The following
\nextract is relevant:\n<\/p>\n
\t“So we come up to the harm of long shut-up behind the bars. Subjected to
\nhard labour that rigorous imprisonment implies and exposed to the deleterious
\ncompany of hardened adult criminals, a young person, even if now twenty-one,
\nreturns a worse man, with more vices and vengeful attitude towards society. This
\nis self-defeating from the correctional and deterrent angles.”
\nIn State of M.P. vs. Babbu Barkare,<\/a> (2005) 5 S.C.C. 413, the Supreme Court
\nobserved as follows :\n<\/p>\n
\t“Criminal law adheres in general to the principle of proportionality in
\nprescribing liability according to the culpability of each kind of criminal
\nconduct. It ordinarily allows some significant discretion to the judge in
\narriving at a sentence in each case, presumably to permit sentences that reflect
\nmore subtle considerations of culpability that are raised by the special facts
\nof each case. Judges in essence affirm that punishment ought always to fit the
\ncrime; yet in practice sentences are determined largely by other considerations.
\nSometimes it is the correctional needs of the perpetrator that are offered to
\njustify a sentence. Sometimes the desirability of keeping him out of circulation
\nand sometimes even the tragic results of his crime. Inevitably these
\nconsiderations cause a departure from just deserts as the basis of punishment
\nand create cases of apparent injustice that are serious and widespread.”\n<\/p>\n
\t13. To conclude,\n<\/p>\n
\t(a) The Sections should be construed keeping in mind the Objects and
\nReasons of the Act.\n<\/p>\n
\t(b) When the object is borne in mind and sentencing is viewed from the
\nangle of reforming the offender and making him a useful person of the society,
\nand in view of the Supreme Court decisions mentioned above, we hold that the
\nword ‘imprisonment’ in Section 2(1) must include ‘imprisonment for life’.\n<\/p>\n
\t(c) Section 8 gives the Court the discretion to decide whether the
\nadolescent offender should be sentenced to imprisonment or be sent for detention
\nto a Borstal School. So long as this discretion is exercised properly a sentence
\nof imprisonment pronounced by a Court cannot per se be termed as illegal as in
\nthe case of a juvenile.\n<\/p>\n
\t(d) Sections 10 and 10A come into operation after the sentence is passed
\nand the offender has been imprisoned accordingly.\n<\/p>\n
\t14. For all these reasons, the judgment in Ramasamy V. State (2000 (1)
\nL.W. (Crl) 142) insofar as it holds that Section 8 of the Borstal Schools Act
\ncannot apply to adolescent offenders who have been sentenced to imprisonment for
\nlife is not correct. The reference is answered accordingly. The habeas corpus
\npetition may be listed before the appropriate court for passing orders.\n<\/p>\n
ab<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court A. Thangammal vs The Home Secretary on 6 February, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06\/02\/2008 CORAM THE HON’BLE MRS. JUSTICE PRABHA SRIDEVAN THE HON’BLE MR. JUSTICE N. PAUL VASANTHA KUMAR AND THE HON’BLE MR. JUSTICE S. NAGAMUTHU Habeas Corpus Petition No.596 of 2007 A. Thangammal … Petitioner […]<\/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":[8,13],"tags":[],"class_list":["post-31113","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nA. 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