Singh & Ors Vs. State of Haryana & Ors  INSC 293 (21 September 1988)
Rangnath Misra Rangnath Venkatachalliah, M.N. (J)
1988 AIR 2235 1988 SCR Supl. (3) 141 1989 SCC (1) 235 JT 1988 (3) 729 1988
Borstal Act, 1926: Ss. 5 and 2(4)--Adolescents convicted for offence of murder
and sentenced to imprisonment for life under s. 302 IPC--Whether entitled to
benefit of s. 5 of the Act.
Section S 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 punishable under the Indian Penal
Code, In lieu of passing a sentence of transportation or rigorous imprisonment.
Section 2(4) of the Act which defines 'offence' takes in offences other than an
offence punishable wlth death.
petitioners who have been convicted for the offence punishable under s. 302 of
the Indian Penal Code and have been sentenced to life imprisonment, claim
entitlement to the benefit of s. 5 of the Act.
the writ petitions,
The Punjab Borstal Act, 1926 does not have application to an offence punishable
under s. 302 of the Indian Penal Code. [143G] The offence of murder is
punishable with death even though the punishment awarded is not death but
imprisonment for life. [144H] 'Punishable' in s. 2(4) of the Act carries a
meaning 'liable to be punished'. Since the offence under s. 302 is punishable
with death, the provisions of the Punjab Borstal Act would not cover an offence
under s. 302 of I.P.C. and the benefit would not, therefore, be available to an
accused convicted for the offence under s. 302 I.P.C. [145E] Subhash Chand v.
State of Haryana & Ors., [1988I SCC 717 applied; Hava Singh v. State of Haryana
& Anr.,  4 SCC 207; State of Andhra Pradesh v. Vallabhapuram Ravi,
 4 SCC 410 and Kunwar Bahadur & Ors. v. State of Uttar Pradesh,
 (Supp.) SCC 339, distinguished.
141 PG NO 142
JURISDICTION: Writ Petition (Crl.) No. 648 of 1987 etc. etc.
Article 32 of the Constitution of India) D.S. Tewatia, Mukul Mudgal, Rakesh Khanna, P.K. Jain, R.P. Singh,
C.V.S. Rao, Prem Malhotra, S.K. Sabharwal, Mahabir Singh, Mrs. Urmila Kapoor
and N. Sudhakaran for the appearing parties.
Judgment of the Court was delivered by RANGANATH MISRA, J. These are a batch of
writ petitions under Article 32 of the Constitution raising the common claim of
entitlement to the benefit of Section 5 of the Punjab Borstal Act, 1926.
each of these writ petitions, the petitioner has been convicted for the offence
punishable under Section 302 of the Indian Penal Code and has been sentenced to
life imprisonment. The State of Haryana has challenged the claim of the petitioner in each of these writ
counsel for the petitioners has relied upon the decision of this Court in Hava
Singh v. State of Haryana & Anr.,  4 SCC 207 in support of the claim
advanced in the writ petitions. A two Judge Bench of this Court in that case
referred to Section 5 of the Act and E held:
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 516-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." PG NO 143 Reliance was also placed by
learned counsel for the petitioners on another two-Judge Bench decision of this
Court in the case of State of Andhra Pradesh
v. Vallabhapuram Ravi,  4 SCC 410. That was a case under the Andhra
Pradesh Borstal Schools Act, 1925 (5 of 1926) and the question for
consideration was the same as here with reference to the provision of Section 8
of that Act. The two-Judge Bench held that the provisions of the Borstal
Schools Act applied to the offence punishable under Section 302 of the Indian
these cases were referred to in Subhash Chand v. State of Haryana & Ors.,
 1 SCC 717 by a three-Judge Bench. It referred to Hava Singh's case
(supra) at length.
three-Judge Bench in its judgment referred to the definition of 'offence' under
Section 2(4) of the Punjab Borstal Act which defined 'offence' to mean--
"an offence punishable with transportation or rigorous imprisonment under
the Indian Penal Code other than (a) an offence punishable with death;"
The Court found that 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" and proceeded to say again "one of the
punishments for the offence of murder to 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 several decisions of different High Courts".
Court ultimately held:
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 of IPC".
being a decision of a larger Bench we are bound by it.
144 In the Webster'6 Third New International Dictionary the follow-ing meaning
has been given to the word 'punishable'-- "Deserving of, or liable to,
punishment: capable of being punished by law or right".
the Law Lexicon (Reprint Edition 1987) gives the meaning of 'punishable' thus:
word 'punishable' as used in statutes which declare that certain offences are
punishable in a certain way, means liable to be punished in the way
designated." In Bouvier's Law Dictionary, the meaning of the word
'punishable' has been given as 'liable to punishment'. In 'Words and
Phrases--Permanent Edition', the following meaning has been given:
word 'punishable' in a statute stating that a crime is punishable by a
designated penalty or term of years in the state prison limits the penalty or
term of years to the amount or term of years stated in the statute." The
word 'punishable' is ordinarily defined as deserving of or capable or liable to
Punishment, punishable within statute providing that defendant may have ten
peremptory challenges if offence charged is 'punishable' with death or by life
imprisonment; means deserving of or liable to punishment; capable of being
punished by law or right, may be punished, or liable to be punished, and not
must be punished.
Juris Secundum gives the meaning as:
of, or liable to, punishment; capable of being punished by law or right; said
of persons of offences.
meaning of the term is not 'must be punished', but 'may be punished', or
'liable to be punished'.
absence of a definition of 'punishable' we have referred to these for gathering
the exact meaning of the word. In the sense given to the word, as above, there
can be no doubt that the offence of murder is punishable with death even though
the punishment awarded is not death but imprisonment for life.
145 An earlier decision of this Court in Kunwar Bahadur & Ors. v. State of Uttar Pradesh,  Supp. SCC 339, where a
two-Judge Bench dealt with the provisions of the United Provinces Borstal Act 7
of 1938 was also relied upon. The judgment is a short one. Detailed reference
to the provisions of the United Provinces Act has not been made but Section 7
of the Act was referred to and it was observed:
this Section where a prisoner is sentenced for transportation i.e. life
imprisonment and is below the age of 21 years he should be sent to Borstal
School where he cannot be detained for more than five years, The law thus
contemplates that for such an offender the sentence of five years will be
equivalent even to a higher sentence of life prisonment".
in the United Provinces Act, there is no definition of 'offence' as available
in the Punjab Act.
the decision in Kunwar Bahadur's case (supra) is not really material for our
carries a meaning 'liable to be punished' as indicated by the three-Judge
Bench. Since the offence under Section 302 is punishable with death, the
provisions of the Punjab Borstal Act would not cover an offence under Section
302 of IPC and the benefit would not therefore, be available to an accused
convicted for the offence under Section 302 IPC.
the hearing of the matters learned counsel for the petitioners had maintained
that the provisions of the Punjab Act should be suitably amended to bring about
uniformity in the law on the subject. This is a matter for the State and the
Legislature and it is for them to consider whether the provision should be
suitably amended keeping the modern concept of punishment and treatment of
adolescents in view.
of the writ petitions is dismissed. There would be no order for costs P.S.S.
Petitions dismissed .