(1.) THE following question has been referred to us for our decision: "whether the expression 'transportation' in Section 4 (a) of the reformatory Schools Act meant 'transportation for life' and, therefore, now means 'imprisonment for life'?" the question has been referred because, according to the learned Single Judge (Shiv Dayal J.), there is a conflict between the two decisions, namely, Rama v. Emperor, (1908) 4 Nag LR 180 and Daljit Singh v. Emperor, AIR 1937 Nag 274 on the one hand, and Gangaram v. State of M. P. , AIR 1965 Madh Pra 122.
(2.) THE appellant in this case has been convicted of an offence under Section 376 of the Indian Penal Code and has been sentenced to rigorous imprisonment for two years. The punishment prescribed under Section 376 of the Indian Penal Code is imprisonment for life or imprisonment of either description for a term which may extend to ten years and also fine. The appellant is aged 18 years. One of the questions which came before the learned Single Judge while deciding the appeal was whether in such a case the provisions of the Reformatory Schools Act, 1897 could be applied. That depends on the interpretation of Section 4 (a) of the reformatory Schools Act which contains the definition of a 'youthful offender'. The definition of a 'youthful offender', with the local amendment, reads thus: "4. Definitions. In this Act, unless there is anything repugnant in the subject or context.- (a) 'youthful offender' means any boy who has been convicted of any offence punishable with transportation or imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898, and who at the time of such conviction or sentence, was under the age of sixteen years. " In this definition, there is reference to punishment of 'transportation' or 'imprisonment' and no reference to 'imprisonment for life'. Hence, the question has been posed for our decision.
(3.) SECTION 53 of the Indian Penal Code, before its amendment in 1949, prescribed the following penalties:-
" first, -- Death; secondly, -- Transportation; thirdly, -- Penal Servitude; fourthly, -- Imprisonment, which is of two descriptions, namely:- (1) Rigorous, that is, with hard labour; (2) Simple; fifthly, -- Forfeiture of property; sixthly, -- Fine. " after its amendment in 1949 and 1955, the section reads thus: "first, -- Death Secondly, -- Imprisonment for life; thirdly, -- (Repealed by Act No. 17 of 1949): fourthly, -- Imprisonment, which is of two descriptions, namely: (1) Rigorous, that is, with hard labour; (2) Simple; fifthly, -- Forfeiture of property; sixthly, -- Fine". These amendments were necessitated because for a long time persons sentenced to transportation were not sent out of India and they were confined in the Indian prisons and the sentence of transportation for life was treated as if it was a sentence of imprisonment for life. This matter came up before their Lordships of the Privy Council in Kishori Lal v. King Emperor, 72 Ind App 1 = (AIR 1945 PC 64)wherein their Lordships observed thus: "in England transportation beyond the seas ceased as a punishment in 1854. In India it is still part of the penal system, but Acts passed since the Penal Code have effected so radical a change in the law relating thereto that, whatever may have been the case in 1860, Section 58 can no longer be construed as providing only for the transitory detention of prisoners awaiting conveyance to a penal settlement outside India. A sentence of transportation no longer necessarily involves prisoners being sent overseas, or even beyond the province wherein they were convicted. . . . . . . So, in India, a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appointed for transportation prisoners, where he will be dealt with in the same manner as a prisoner sentenced to rigorous imprisonment. " [pp. 8-9 of Ind App. (at pp. 66-67 of AIR ). ] from this decision it is clear that in the all those cases where a person was sentenced to transportation for life, it was treated as if it was a sentence of life imprisonment. This is the reason why in 1955, Section 53 of the Indian Penal Code was amended so as to delete the punishment of 'transportation' and to substitute it by the punishment of 'imprisonment for life'. There was reference to the punishment of transportation in other enactments also. Hence, in 1955 Section 53a was added which reads thus:
"53a. Construction of reference to transportation. (1) Subject to the provisions of Sub-section (2) and Subsection (3), any reference to 'transportation for life' in any other law for the time being in force or in any instrument or order having effect by virtue of any such law or any enactment repealed shall be construed as a reference to 'imprisonment for life. ' (2) In every case in which a sentence of transportation for a term has been passed before the commencement of the Code of Criminal Procedure (Amendment) Act, 1955, the offender shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the same term. (3) Any reference to transportation for a term or to transportation for any shorter term (by whatever name called)in any other law for the time being in force shall be deemed to have been omitted. (4) Any reference to 'transportation' in any other law for the time being in force shall,-- (a) as 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. " the effect of this section is twofold: (1) that wherever there is any reference to 'transportation for life' in any other law for the time being in force, it should be construed as a reference to 'imprisonment for life'; and (2) wherever there is a reference to 'transportation for a shorter term', it should be deemed to have been omitted. Now, Section 4 (a) of the Reformatory Schools Act refers to the punishment of 'transportation'. If the expression 'transportation' in taken to include 'transportation for life' or 'transportation for a shorter term', the effect of Section 53a of the Penal Code would be that in place of the word 'transportation' the words 'imprisonment for life' would have to be substituted. The definition of a 'youthful offender' reconstituted with reference to the said amendments would then read as under:-'"youthful offender' means any boy who has been convicted of any offence punishable with imprisonment for life or imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898, and who at the time of such conviction or sentence was under the age of sixteen years;" If the definition is so read, no manner of doubt is left that a person convicted of an offence, which is punishable with a sentence of imprisonment for life can be dealt with under the provisions of the Reformatory Schools Act and the answer to the question posed must be given in the affirmative.;