SLBBU ALIAS RAMGOPAL ALIAS SHAMBHU Vs. STATE OF MADHYA PRADESH
LAWS(MPH)-1967-10-3
HIGH COURT OF MADHYA PRADESH
Decided on October 24,1967

SLBBU ALIAS RAMGOPAL ALIAS SHAMBHU Appellant
VERSUS
STATE OF MADHYA PRADESH Respondents

JUDGEMENT

Shiv Dayal J - (1.) THE appellant has been convicted of an offence under section 376, Penal Code, and sentenced to rigorous imprisonment for two years. Aggrieved by his conviction and sentence, he has preferred this appeal. His age is 15 years. One of the questions which I have to consider while deciding this appeal requires an authoritative pronouncement of a larger Bench of this Court.
(2.) THE question is whether the provisions of the Reformatory Schools Act, 1897, apply to the case of an offence, the sentence for which may extend to imprisonment for life, (e.g. sections 307, 326, 376, 377, 388 etc. etc.) THE offence under section 376, Penal Code, is such an offence. It is an accepted principle that sending of a youthful offender, whose antecedents are not shown to be bad to an ordinary prison may have the effect of making him a hardened criminal. THE intention of the law, as manifests itself in the provisions of the Reformatory Schools Act is that, in suitable cases, offenders under the age of sixteen years should not be sent to ordinary prisons but their detention in Reformatory Schools should serve as a substitute for such punishment. Before any provisions of the Reformatory Schools Act can be invoked, the offender must be a "youthful offender ' within the meaning of section 4 (a) of that Act, which is in these words:- " 'Youthful offender' means any boy who has been convicted of on offence punishable with transportation or imprisonment......and who, at the time of such conviction was under the age of sixteen years." An essential ingredient of this definition is that the offence must be punishable with transportation or imprisonment. It is worthy of note that neither in the said interpretation clause nor in any other section of the Act "transportation" is defined. Nor is it qualified by prescribing any term. Thus, an offence punishable with transportation for life was within the purview of that definition. To put it differently, irrespective of the nature of the offence and irrespective of the term of sentence, whenever transportation or imprisonment could be awarded as punishment, and the sentence was in fact so awarded, to a boy under sixteen years of age, the Court had the discretion to exercise its powers under the Act, for instance, under section 8 or section 31. It is altogether different whether in the facts and circumstances of a particular case the Court decides to give the convict the benefit of that Act or not. In section 53 of the Penal Code, as it stood before 1955, "transportation" was one of the forms of punishment. But, let it be borne in mind, "transportation for life" was not enlisted as a separate category from "transportation". In Ki8horilal v. Emperor, AIR 1945 PC 64=72 IA 1, the Privy Council observed that transportation was in truth a name given, in India to the sentence for life. Referring to that decision, their Lordships said in G. V. Godse v. State of Maharashtra, AIR 1961 SC 600, that the word 'transportation' was not defined in the Penal Code, but it was for life, with two exceptions. That the word "transportation" in section 4 (a) of the Reformatory Schools Act meant "transportation for life" must be deduced from Rama v. Emperor, 4 NLR 180 (D.B.), where it was held that the Reformatory Schools Act is applicable to the case of a juvenile offender who has been convicted of murder and sentenced to transportation for life. See also Vila v. The King, AIR 1950 Orissa 261(D.B.); and Daljit Singh v. Emperor, AIR 1937 Nag 274 (D.B.).
(3.) IN 1955, 'transportation', as a form of punishment, was abolished by virtue of the Code of Criminal Procedure (Amendment) Act, No. 26 of 1955, (hereinafter called the Amendment Act). Diverse provisions were made for substitution of "imprisonment for life" for "transportation". Section 53 of the Penal Code, as it stood prior to commencement of the Amendment Act, read thus: "53. Punishments to which offenders are liable under the provisions of this Code are:- First-death; Secondly - transportation; * * * Fourthly - imprisonment which is of two descriptions, namely:- (a) rigorous, that is, with hard labour; (b) simple. * * * " Transportation for life, which was prescribed for a number of offences, was not a separate category but was necessarily included in "Secondly, -transportation". What the Amendment Act did may be summed up thus:-(1) IN section 53 of the Penal Code, the expression "imprisonment for life" was substituted for "transportation" as a category for punishment separately from "Thirdly, -imprisonment" (that is, imprisonment for any term except for life). (2) IN clauses 3 to 18 of the Schedule under section 117 of the Amendment Act, specific provisions were made for substitution of "imprisonment for life" for expressions containing the word "transportation" in various provisions of the Penal Code. IN a nutshell "imprisonment for life" was substituted for all the three expressions, namely, (i) transportation for life (ii) transportation for a term or any shorter term; and (iii) transportation. (3) Aware of the fact that these expressions "transportation for life", "transportation for a term or any shorter term"; and "transportation" (simpliciter) were employed in other enactments as well, but without attempting to specifically and separately amend all those provisions, what the Legislature did was just to lay down the criteria for application; and this was done by introducing a new section in the Penal Code. It is section 53-A. The material criteria may be summed up thus: (i) "Transportation for life" in any other law is to be construed as "imprisonment for life" [per sub-section (1)]. (ii) "Transportation for a term or transportation for any shorter term" (by whatever name called) in any other law, has to be omitted, [per sub-section (3).] (iii) Then sub-section (4) of the new section runs thus: "Any reference to 'transportation' in any other law for the time being in force shall,- (a) if the expression means transportation for life, be construed as a reference to imprisonment for life; (b) if the expression means transportation for any shorter term, be deemed to have been omitted." It is obvious enough that wherever the expressions "transportation for life" or "transportation for a term" or "transportation for any shorter term" occur in any enactment other than the Penal Code, they stand amended as above: the first expression above is to be substituted by "imprisonment for life", while the other two are to be deleted. But, where in any enactment the word "transportation" (simpliciter) occurs, it has to be determined whether it means "transportation for life" or "transportation for a shorter term". After such determination, in the former case it is to be substituted by "imprisonment for life", and in the latter it is to be deleted. With that as the basis, it has to be determined whether the word "transportation" in section 4 (a) of the Reformatory Schools Act meant "transportation for life" or was limited to transportation for any term shorter than transportation for life. On giving a very considered thought, I find that the position is this: (1) The term "transportation" is not defined in the interpretation clause or in any other section of the Reformatory Schools Act. (2) There is nothing in the context to show that by necessary implication the word "transportation" was used so as to exclude transportation for life. For instance, there are no such provisions, general or particular, as exclude in terms the application of the Act to any offence punishable with transportation for life. (3) The general connotation of 'transportation" was "transportation for life". Section 53, Penal Code, affords strongest support to this. Although transportation for life was prescribed as a punishment in many sections of the Penal Code, in section 53 (where punishments are categorised) there was mention of "transportation" simpliciter. "Transportation for life" was not mentioned as any category of punishment in that section. It is then incontestable that "transportation" meant "transportation for life". (4) In Kishorilal v. Emperor, AIR 1945 PC 64=72 IA 1, the Privy Council said that "transportation" was in truth a name given in India to the sentence for life. (5) In 0. V. Godse v. State of Maharashtra, AIR 1961 SC 600, their Lordships referred to Kishorilal, AIR 1945 PC 64=72 IA 1 and observed: "The word 'transportation' was not defined in the Penal Code, but it was for life with two exceptions." For the above reasons and on high authority, I am of the view that the word "transportation" in section 4 (a) of the Reformatory Schools Act, meant "transportation for life" and was not limited to "transportation for any shorter term".;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.