Chand Vs. State of Haryana & Ors  INSC 2 (11 January 1988)
Rangnath Misra Rangnath Ray, B.C. (J)
1988 AIR 584 1988 SCR (2) 556 1988 SCC (1) 717 JT 1988 (1) 109 1988 SCALE (1)99
INFO : F 1988 SC2235 (5)
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.
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.
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.
l. l The Punjab Borstal Act does not have application to an offence punishable
under s. 302 I.P.C.[561F-G]
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]
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
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.
Singh v. State of Haryana, AIR 1987 SC 2001 overruled.
ORIGINAL JURISDICTION: Writ Petition (CRL) No. 745 of 1987.
Article 32 of the Constitution of India).
for the Petitioner Ravindra Bana, G. Venkatesh Rao and C.V. Subba Rao for the
following order of the Court was delivered:
O R D
E R 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
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.
that case, it was observed:
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.
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 here in below:
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.
court further stated:
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.
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:
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.
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 Pun- jab Act.
is excepted in the definition is an offence which is punishable with death.
Section 302 of the Indian Penal Code provides:
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.
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:
with death or transportation for life".
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.
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.
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.
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.
writ petition is dismissed.