Hava
Singh Vs. State of Haryana & ANR [1987] INSC 225 (21 August 1987)
RAY,
B.C. (J) RAY, B.C. (J) SEN, A.P. (J)
CITATION:
1987 AIR 2001 1987 SCR (3)1061 1987 SCC (4) 207 JT 1987 (3) 375 1987 SCALE
(2)345
CITATOR
INFO : * 1986 SC 584 (*) O 1988 SC 584 (1,2,3,5) * 1988 SC2235 (5)
ACT:
Punjab
Borstal Act, 1926---pre-mature release of convict after seven years' detention
under provisions of--Section 5.
HEADNOTE:
The
petitioner, aged about 18 years, was convicted for an offence u/s 302/34 I.P.C.
and sentenced to life imprisonment by judgment and order dated 22nd May, 1980,
and being admittedly below 21 years of age at the time of commission of the
offence, was sent to Borstal Institution in accordance with the provisions of
the Punjab Borstal Act, 1926.
The
Petitioner filed this writ petition in this Court, stating that the total
period of detention under-gone by him, together with the remissions earned by
him, came to over ten years, and he was entitled to be released both under the
Punjab Borstal Act as well as under paragraph 516-B of the Punjab Jail Manual.
The petitioner, therefore, prayed for his premature release as provided under
the Punjab Borstal Act and the paragraph 516-B of the Punjab Jail Manual.
On
behalf of the respondents, a counter-affidavit was filed by the Superintendent,
Rohtak District Jail, where the petitioner was first sent after his conviction
and sentence u/s 302/34 I.P.C., and where he was brought again from the Borstal
Institute in connection with another case and was now being kept, as he had
attained the age of 21 years.
Allowing
the writ petition, the Court,
HELD:
The petitioner was sent to Borstal Institute at Hissar as he was admittedly
adolescent at the time of his conviction, and was subsequently transferred to
the District Jail at Rohtak to undergo the sentence of imprisonment for life.
[1064C] It appears from the objects and reasons of the Punjab Borstal Act,
1926, that the object of the Act is to provide for the segregation of the adolescent
prisoners from those of more mature age, and their subsequent training in
separate Borstal Institutions meant for detaining the adolescent offenders and
for imparting to them industrial training and 1062 subjecting them to such
disciplinary and moral influence as will conduce to their reformation.
[1064C-E] Under section 5 of the Act above-said, either a Sessions Judge or a
Magistrate of first class or a Magistrate specially empowered under section 30
of the Code of Criminal Procedure, after convicting any male person, less than
twenty-one years of age, of an offence punishable with imprisonment for life or
transportation or other rigorous imprisonment, or in the case of a convict who
is ordered to give security for good behaviour and he fails to give such
security, may in lieu of passing a sentence of transportation or rigorous
imprisonment pass an order of detention which shall not be less than two years
and more than seven years when an order is passed by a Court of Sessions or a
Magistrate. The petitioner, when he was convicted u/s 302/34 I.P.C. and
sentenced to imprisonment for life, was adolescent being less than twenty-one
years of age and was sent to the Borstal Institute in accordance with the
provisions of the Punjab Borstal Act, 1926. On his attaining the age of about
twenty-one years, he was transferred back to the jail.
There
is no provision except section 20 in the said Act for transferring back an
adolescent convict on his attaining the age of twenty-one years from the
Borstal Institute to jail for undergoing the unexpired term of imprisonment. On
the other hand, under section 5 of the Act an adolescent convict under
twenty-one years of age, after the expiry of his period of detention, has to be
released from detention and he is not to be transferred to jail for undergoing
the unexpired period of his sentence of imprisonment. Section 20 empowers the
State Government' to commute the residue of the term of detention of an inmate
of the Borstal Institute, and also order his transfer to any jail in Punjab to
complete the said term of imprisonment when such an inmate is reported to be
incorrigible or is exercising bad influence on the other inmates of the
Institution or has committed a major Borstal Institution offence as provided in
the rules. There was nothing to show that the petitioner had been even found to
be incorrigible or to be exercising a bad influence on the other inmates of the
Institution, etc., as stated above, and the State Government had not passed any
order for his transfer to the jail as mentioned above. [1065E-H; 1066A, D-F] On
a conspectus of the decision of this Court in the State of Andhra Pradesh v.
Vallabhapuram Rani, [1984] 4 S.C.C. 410, and on a consideration of the facts
and circumstances of the case, the only conclusion that followed was that the
petitioner, who had already undergone actual imprisonment for seven years, was
entitled to be released from detention and imprisonment. Paragraph 516-B of the
Punjab Jail 1063 Manual was not applicable in this case. The Court directed the
respondents to release the petitioner from imprisonment forthwith. [1067C-D; G]
State of Andhra Pradesh v. Vallabhapuram Rani, [1984]4S.C.C. 410, referred to.
ORIGINAL
JURISDICTION: Writ Petition (Criminal) No.668 of 1986. (Under Article 32 of the
Constitution of India).
R.K.
Jain and R.P. Singh for the Petitioner. C.V.S. Rao for the Respondents.
The
Judgment of the Court was delivered by B.C. RAY, J. The petitioner who was aged
about 18 years along with one Subeh Singh was involved in a case of murder of
one Ranbir Singh and he was convicted for an offence U s 302 34 I.P.C. and
sentenced to life imprisonment by judgment and order dated 22nd May, 1980. The
petitioner being admittedly below 21 years of age at the time of alleged
commission offence was sent to Borstal Institution in accordance with the
provisions of Punjab Borstal Act, 1926. It has been stated that the petitioner
has already undergone a period of about 6 years, 10 months and 11 days
detention in jail and together with remissions earned by him it comes to over
10 years. It has been further stated that he is entitled to be released both
under the Punjab Borstal Act as well as under paragraph 5 16-B of the Punjab
Jail Manual and has therefore prayed for his pre-mature release as provided
under the Punjab Borstal Act and also under paragraph 5 16-B of the Punjab Jail
Manual. In the counter-affidavit filed on behalf of the respondent sworn by one
Shri Ram Chander Sarwan, Superintendent of District Jail at Rohtak it has been
stated that the petitioner was convicted and sentenced to life imprisonment U,S
30234 I.P.C. on 22.5. 1980 by the Sessions Judge, Rohtak and he was sent to
District Jail, Rohtak to undergo the sentence passed upon him. It has been
further stated that at the time of conviction he was 19 years of age and as
such he was sent to B.I. & J. Jail, Hissar. He was transferred back to this
Jail (Rohtak District Jail) on 16.12. 1981 for trial in 2nd case (FIR No.III,78
U/s 452/325/34 I.P.C.). He was acquitted in this 2nd case and as he was about
21 years of age so he was kept in the Jail to undergo the life imprisonment
imposed upon him on 22.5.
1980.
It has 1064 been further averred that after the amendment of the Criminal
Procedure Code the petitioner being sentenced to life imprisonment has to
undergo 14 years of substantive sentence U/s 433-A of the Code before his case
can be considered for pre-mature release. The detail of sentence undergone by
the petitioner as on 22.12. 1986 was also given in the said affidavit wherefrom
it appears that he has already undergone 7 years, 3 months and 3 days actual
sentence upto 22.12.
1986.
It has therefore been stated that the petitioner having not undergone 14 years
of actual sentence, he can not be released pre-maturely.
It
is evident from the averments made in the writ petition as well as in the said
counter-affidavit that the petitioner who was admittedly adolescent at the time
of his conviction was sent to Borstal Institute at Hissar. 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 are meant for
detaining adolescent offenders and to impart to them such industrial training
and other instructions and subject them to such disciplinary and moral influence
as will conduce to their reformation. This is evident from the provisions of
section 2(1) of Punjab Borstal Act, 1926. Sub-section (2) of section 2 defines
'detained' as detained in and 'detention' as detention in a Borstal
Institution. Section 5 of the said Act which is very vital for the purpose of
decision of this case is quoted hereinbelow:"5. Powers of courts to pass a
sentence of detention in a Borstal Institution in the case of a convict under
twenty-one years of age in lieu of transportation or rigorous 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 his criminal habits or tendencies or
associations with persons of bad character it is expedient in the opinion of
the Judge or Magistrate, that he should be detained, such Judge or Magistrate
may, in lieu of passing a sentence of transportation or rigorous 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 1065 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)
When any Judicial Magistrate not empowered to pass such order, is of opinion
that an offender convicted by him is a person in respect of whom such order
should be passed in accordance with the provisions of subsection (1), he may,
without passing any sentence, record such opinion and submit his proceedings
and forward the accused to the Chief Judicial Magistrate to whom he is
subordinate.
(3)
The Chief Judicial Magistrate to whom the proceedings are so submitted may make
such further enquiry (if any) as he may deem fit and pass such order for the
detention of the offender or such other sentence or order, as he might have
passed if the trial had been held by him from its commencement." Thus it
is manifest from Section 5 of the said Act that either a Sessions Judge or a
Magistrate of first class or a Magistrate specially empowered under Section 30
of the Code of Criminal Procedure after convicting any male person who is less
than twenty-one years of age, of an offence punishable with imprisonment for
life or transportation or other rigorous imprisonment or a convict is ordered
to give security for good behavior and fails to give such security, may in lieu
of passing a sentence of transportation or rigorous imprisonment pass an order of
detention which shall not be less than two years and shall not exceed seven
years when an order is passed by a court of sessions or a Magistrate specially
empowered under the Code of Criminal Procedure.
The
petitioner who was adolescent admittedly being less than twenty-one years of
age at the time of his conviction though convicted U/s 302/34 I.P.C. and
sentenced to imprisonment for life, was sent to the Borstal Institute in
accordance with the provisions of Punjab Borstal Act, 1926. On his attaining the
age of about twenty-one years he was 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. On
the other hand on a plain reading of section 5 it is clear that the adolescent
convict under twenty-one years of age after expiry of his period of detention
1066 has to be released from detention and he is not to be transferred to Jail
for undergoing the unexpired period of his sentence of imprisonment. Section 20
of the said Act is in the following terms:"20. Incorrigibles--Where an
inmate is reported to the State Government by the visiting committee to be
incorrigible or to be exercising a bad influence on the other inmates of the
institution or is convicted under section 19 of this Act or is reported by the
Superintendent to have committed an offence which has been declared to be major
Borstal Institution offence by rules made by the State Government in pursuance
of the provisions of sub-section (14) of section 34 of this Act, the State
Government may commute the residue of the terms of detention to such term of
imprisonment of either description not exceeding such residue as the State
Government may direct, and may order the transfer of the inmate to any jail in
Punjab in order to complete the said term of imprisonment." This section
empowers the State Government to commute the residue of the term of detention
of an inmate in Borstal Institute to such term of imprisonment of either
description not exceeding the residue as the State Government may direct and
also to order transfer of the inmate to any jail in Punjab in order to complete
the said term of imprisonment when such an inmate is reported to be
incorrigible or his exercising bad influence on the other inmates of the
Institution or such an inmate has committed a major Borstal Institution offence
as provided in the rules. There is nothing to show that the petitioner was ever
found to be incorrigible or to be exercising a bad influence on the other
inmates of the Institution or is found to have committed any major Borstal
Institution offence and the State Government has not passed any order for his
transfer from the Borstal Institution to Jail for undergoing the residue of his
term of imprisonment.
This
Court while considering an identical case in the State of Andhra Pradesh v.
Vallabhapuram Ravi [1984] 4 S.C.C. 410 has observed that "a person
detained in a Borstal School under section 10-A has to be released after he has
served the full term of 5 years of detention or on his completing 23 years of
age. He cannot be retransferred thereafter to prison. Such a retransfer would
defeat the very object and purpose of the Act of providing for detention of
young offenders in Borstal School for the purpose of reformation and
rehabilitation of such offenders." It is to be noted in this connection
that 1067 sentence of detention is passed in lieu of sentence of imprisonment
which may have been passed. Hence the detention order U/s 5 of the said Act is
not imprisonment and Borstal School where the adolescent offender is detained
is not a prison. It has also been observed further that "Section 433-A,
Cr. PC would not operate where a person is detained by an order under Section
10-A of the Act. Section 433-A of the Code was introduced not to set at naught
provisions like 10-A of the Act which dealt with a special class of 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." On a conspectus of the aforesaid
decision as well as on a consideration of the facts and circumstances the only
conclusion follows that the petitioner who has already undergone actual
imprisonment for seven years is entitled to be released from detention and from
imprisonment. Paragraph 5 16-B of the Punjab Jail Manual is not applicable in
this case as the petitioner who was an adolescent convict below twenty-one
years of age was sent to the Borstal Institute at Hissar for detention in
accordance with the provisions of Section 5 of the Punjab Borstal Act, 1926. He
being convicted by the Sessions Judge the maximum period of detention as
prescribed by the Act is seven years. We have already said hereinbefore that
such an inmate of the Borstal Institute cannot be transferred to Jail on the
ground that he has attained the age of twenty-one years as the said Act does
not provide for the same. The only provision for transfer to Jail is in the
case of incorrigible inmate or inmates convicted of major Borstal Institution
offence. The petitioner who was' detained in a Borstal Institute is entitled to
be released and to be set free as he has already undergone detention for a
period of seven years. The Writ Petition is therefore allowed. The respondents
are directed to release the petitioner from imprisonment forthwith. There will
be no order as to costs.
S.L.
Petition allowed.
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