1989 PLP 1076 (MLD)

"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 Bortstal 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:- "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 imprisonment 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 identical case in the State of Andhra Pradesh v. Vafabhapuram Ravi, A I R 1985 S C 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 completion 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 m 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 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.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 section 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 rule: sometimes reducing the sentence of imprisonment for life imposed on person who had been convicted of capital offences but had been sentenced to imprisonment for life to short periods like five to six years."

3. 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, A I R 1987 S C 2001, 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 A Andhra Pradesh Borstal Schools Act, 1925, does not have, the definition of `offence' and there is no exclusion as provided in the Punjab Act.

4. 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 I3 application. Support for such a view is available from several decisions of different High Courts. Section 562(1) of the Code 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, AIR 1932 Nag. 130, that phrase was interpeted disjunctively and women convicted of an offence for which transportation for life must 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 Emperor v. Nga San Htwa, AIR 1927 Rang 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 Madh Pra 291, also took the same view. In Emperor v. Bahawali, AIR 1928 Lah. 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 Ccurt in the case of State v. Sheo hanker, AIR 1956 All. 326, the Madras High Court in Public Prosecutor of Madras v. Paneswara Rao, AIR 1946 Mad. 173, the Rajasthan High Court in Sarkar v. Jalam Singh, AIR 1950 Raj. 28 and the Bombay High Court in Naranji a remji v. Emperor, AIR 1928 Bom. 244 have taken the same view.

5. In Hava Singh's case (A I R 1987 S C 2001) 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, I.P.C. 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, I.P.C. for which the sentence of death is prescribed as an alternate.

6. The writ petition is dismissed. M.BA./75/SC(Ind.) Petition dismissed.