PETITIONER:
SUBHASH CHAND
Vs.
RESPONDENT:
STATE OF HARYANA AND ORS.
DATE OF JUDGMENT11/01/1988
BENCH:
MISRA RANGNATH
RAY, B.C. (J)
CITATION:
1988 AIR 584 1988 SCR (2) 556
1988 SCC (1) 717 JT 1988 (1) 109
1988 SCALE (1)99
ACT
Punjab Borstal Act, 1926: ss. 5 and 2(4)(i)(a- Adolescent convicted for offence of murder and sentenced to imprisonment for life-Whether entitled to the benefit of the Act.
HEADNOTE
%
Sectlon 5 of the Punjab Borstal Act, 1926 empowers courts to pass a sentence of detention in a Borstal institution in the case of male persons less than twenty one years of age convicted of an offence, in lieu of transportation or rigorous imprisonment. Section 2(4)(i)(a) of the Act which defines ’offence’ takes in offences other than an offence punishable with death.
In his writ petition under Article 32 of the Constitution, the petitioner who has been convicted for the offence of murder and sentenced to imprisonment for life claimed benefit of the Punjab Borstal Act relying on Hava Singh v. State of Haryana, AIR 1987 SC 2001. The State contested his claim
Dismissing the writ petition. ^
HELD: l. l The Punjab Borstal Act does not have application to an offence punishable under s. 302 I.P.C.[561F-G]
1.2 What is excepted in the definition of ’offence’ in s. 2(4)(i)(a) of the Act is an offence which is punishable with death. One of the punishments under s. 302 I.P.C. for the offence of murder is death, and. therefore, the offence of murder would be covered with s. 2(4)(i)(a) of the Act and to such a conviction the Punjab Borstal Act would have no application. [560F-G]
1.3 The petitioner is, therefore, not entitled to the benefit of the Punjab Borstal Act as he has been sentenced to imprisonment for life for the offence of murder punishable under s. 302 I.P.C. for which the sentence of death is prescribed as an alternate. [561G] 557
1.4 In Hava Singh’s, case the definition of offence was not placed for consideration before the court and, therefore, the conclusion which has been reached is not correct. [561F]
Emperor v. Mt. Janki & Anr., AIR 1932 Nag. 130; King Emperor v. Nga San Htwa & Ors., AIR 1927 Rangoon 205; Chetti v. State of Madhya Pradesh, AIR 1959 MP 291; Emperor v. Bahawati, AIR 1928 Lahore 920; State v. Sheo Shankar, AIR 1956 All. 326; Public Prosecutor of Madras v. Paneswar Rao, AIR 1946 Mad. 178; Sarkar v. Jalam Singh, AIR 1950 Raj. 28 and Narauji Premji v. Emperor, AIR 1928 Bom. 244. referred to.
Hava Singh v. State of Haryana, AIR 1987 SC 2001 overruled.
JUDGMENT
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (CRL) No. 745 of 1987.
(Under Article 32 of the Constitution of India).
J.M. Khanna for the Petitioner
Ravindra Bana, G. Venkatesh Rao and C.V. Subba Rao for the Respondents.
The following order of the Court was delivered:
ORDER
The petitioner has been convicted for the offence of murder and sentenced to imprisonment for life. He claims in this application under Article 32 of the Constitution the benefit of the Punjab Borstal Act and has placed reliance on a decision of this Court in the case of Hava Singh v. State of Haryana, AIR 1987 SC 2001. A counter affidavit has been filed disputing the tenability of the claim.
In Hava Singh’s case (supra) a two-Judge Bench (including one of us) was considering the claim of a convict for an offence of murder to release taking into account the period the prisoner had stayed in the Borstal institution. In that case, it was observed:
"It is evident from the averments made in the
writ petition as well as in the said counter-
affidavit that the petitioner was admittedly
adolescent at the time of his con- 558
viction was sent to Borstal Institute at Hissar.
Subsequently, he has been transferred to the
District Jail at Rohtak and is undergoing the
sentence of imprisonment for life. It appears from
the objects and reasons of Punjab Borstal Act,
1926 that the object of the Act is to provide for
segregation of adolescent prisoners from those of
more mature age, and their subsequent training in
separate institutions. These Borstal Institutions
meant for detaining adolescent offenders and to
impart to them such industrial training and other
instructions and subject them to such disciplinary
and moral influence as will conduce to their
reformation. This is evident from the provisions
of section 2(1) of Punjab Borstal Act, 1926. Sub-
section (2) of section 2 defines detained as
detained in and detention as detention in a
Borstal Institution. Section 5 of the said Act
which is very vital for the purpose of decision of
this case is quoted hereinbelow:
’5. Powers of courts to pass a sentence of
detention in a Borstal Institution in the
case of a convict under twenty-one years of
age in lieu of transportation or rigorous
imprisonment-(1) When any male person less
than twenty-one years of age is convicted of
an offence by a court of sessions, a
Magistrate specially empowered under section
30 of the Code of Criminal Procedure, 1898,
or a Judicial Magistrate of the first class,
or is ordered to give security for good
behaviour and fails to give such security,
and when by reason of this criminal habits or
tendencies or associations with persons of
bad character it is expedient in the opinion
of the Judge or Magistrate, that he should be
detained, such Judge or Magistrate may, in
lieu of passing a sentence of transportation
or rigorous imprisonment, pass an order of
detention for a term which shall not be less
than two years and shall not exceed seven
years when the order is passed by a Court of
sessions or a Magistrate specially empowered
under section 30 of the Code of Criminal
Procedure, 1898, and shall not be less than
two years nor exceed three years, when the
order is passed by a judicial magistrate of
the first class not so empowered.
(2) ........................................ 559
(3)......................................... This court further stated:
"The petitioner who was adolescent admittedly
being less than twenty-one years of age at the
time of his conviction though convicted under
Section 302/34 I.P.C. and sentenced to
imprisonment for life, was sent to the Borstal
Institute in accordance with the provisions of
Punjab Borstal Act, 1926. On his attaining the age
of about twenty-one years he was transferred back
to the Jail. There is no provision except section
20 under the said Act for transferring back an
adolescent convict on his attaining the age of
twenty-one years from the Borstal Institute to
Jail for undergoing the unexpired term of
imprisonment. The Court then referred to section 20 of the Act dealing with incorrigibles and observed: n
"The section empowers the State Government to
commute the residue of the term of detention of an
inmate in Borstal Institute to such term of
imprisonment of either description not exceeding
the residue as the State Government may direct and
also to order transfer of the inmate to any jail
in Punjab in order to complete the said term of
imprisomnent when such an inmate is reported to be
incorrigible or is exercising bad influence on the
other inmates of the Institution or such an inmate
has committed a major Borstal Institution offence
as provided in the rules." The Court then stated:
"This Court while considering an indentical
case in the State of Andhra Pradesh v.
Vallabhapuram Ravi, AIR 1985 SC 870 has observed
that a person detained in a Borstal School under
section 10-a has to be released after he has
served the full term of 5 years of detention or on
his completing 23 years of age. He cannot be
retransferred thereafter to prison. Such a
retransfer would defeat the very object and
purpose of the Act of providing for detention of
young offenders in Borstal School for the purpose
of reformation and rehabilitation of such
offenders’. It is to be 560
noted in this connection that sentence of
detention is passed in lieu of sentence of
imprisonment which may have been passed. Hence the
detention order under section S of the said Act is
not imprisonment and Borstal School where the
adolescent offender is detained is not a prison.
It has also been observed further that section
433-A, Cr. P.C. would not operate where a person
is detained by an order under section 10-a of the
Act. Section 433-A of the Code was introduced not
to set at naught provisions like 10-A of the Act
which dealt with a special class of offenders like
adolescent offenders but only to regulate
capricious and arbitrary decisions under Section
432 of the Code and the remission rules sometimes
reducing the sentence of imprisonment for life
imposed on persons who had been convicted of
capital offences but had been sentenced to
imprisonment for life to short periods like five
to six years."
Under the Punjab Act, ’offence’ has been defined in section 2(4) to mean-
"an offence punishable with transportation or
rigorous imprisonment under the Indian Penal Code
other than-
(a) an offence punishable with death;." Hava Singh’s case did not refer to the definition of ’offence’ and relied upon the decision in the case of Ravi (supra) though the scheme of the Andhra Act was very different. The Andhra Act known as the Andhra Pradesh Borstal Schools Act, 1925, does not have the definition of ’offence’ and there is no exclusion as provided in the Punjab Act.
What is excepted in the definition is an offence which is punishable with death. Section 302 of the Indian Penal Code provides:
"Whoever commits murder shall be punished
with death or imprisonment for life and shall also
be liable to fine. " One of the punishments for the offence of murder is death and, therefore, the offence of murder would be covered within section 2(4)(i)(a) of the Punjab Act and to such a conviction the Punjab Borstal Act would have no application. Support for such a view is available from 561 several decisions of different High Courts. Section 562(1) of the Code A of Criminal Procedure of 1898 as amended in 1923 brought in the phrase:
"Punishable with death or transportation for
life". In Emperor v. Mt. Janki & Anr., AIR 1932 Nag. 130 that phrase was interpreted disjunctively and women convicted of an offence for which transportation for life was one of the punishments provided were held ineligible for release on probation under section 562. It was pointed out that the words ’death or transportation for life’ must be read as referring to offences the penalty for which provided by the Penal Code contains either death or transportation for life as one of the punishments awarded and not necessarily both. Reliance was placed on a full Bench decision of the Rangoon High Court in King Emperor v. Nga San Htwa & Ors., AIR 1927 Rangoon 205 which was dealing with a similar phrase occurring in section 497 of the old Code. A Division Bench of the Madhya Pradesh High Court in Chetti v. State of Madhya Pradesh, AIR 1959 MP 241 also took the same view. In Emperor v. Bahawati, AIR 1928 Lahore 920 it was held that as one of the alternative punishments for that offence under section 307 of the Penal Code, is transportation for life, it is obvious that section 562 is not applicable and the accused must be sentenced to rigorous imprisonment and fine. The Allahabad High Court in the case of State v. Sheo Shanker, AIR 1956 All. 326, the Madras High Court in Public Prosecutor of Madras v. Paneswar Rao, AIR 1946 Mad. 178, the Rajasthan High Court in Sarkar v. Jalam Singh, AIR 1950 Raj, 28 and the Bombay High Court in Naranji Premji v. Emperor, AIR 1928 Bom. 244 have taken the same view.
In Hava Singh’s case the definition was not placed for consideration before the Court and, therefore, the conclusion which has been reached is not correct. The Punjab Borstal Act does not have application to an offence punishable under section 302 IPC. therefore, the conclusion in Hava Singh’s case is not correct. The petitioner is not entitled to the benefit of the Punjab Borstal Act as he has been sentenced to imprisonment for life for the offence of murder punishable under section 302 IPC for which the sentence of death is prescribed as an alternate.
The writ petition is dismissed. P.S.S. Petition dismissed. 562