IQBAL SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) ORDER :- This petition is filed under Section 482 of the Code of Civil Procedure is filed to keep the petitioner in Borstal Institute, Ludhiana instead of shifting him to any other jail.

(2.) The petitioner along with another was tried for the offences under Sections 364, 386, 302 and 120-B, I.P.C. and convicted and sentenced to undergo imprisonment for life for the offence under Section 302 I.P.C. According to the petitioner, he was born on 9-6-1972 and he was only 20 years old on the date of his conviction i.e. 14-7-1992 and, therefore, he was kept in Borstal Institute, Tajpur Road, Ludhiana from 29-2-1992 to 22-11-1995, 17-6-1997 to 29-9-1997, 1-12-1997 to 15-3-1998, 20-7-1998 to 20-11-1998 and for the intervening period he has been kept in regular jail and now he has been confined in Central Jail, Ludhiana. The petitioner is seeking a direction that he should be detained only in Borstal Institute, Tajpur Road, Ludhiana under the provisions of Punjab Borstal Act, 1926.

(3.) The learned counsel for the petitioner has relied upon a decision of this Court in Surta Singh v. State of Punjab reported in 1992 (2) R. C. R. 420 wherein it has been held that there is no provision in the Act and the rules that on attaining the age exceeding 21 years the inmate of the Borstal School shall be liable to be transferred in the ordinary prison. To come to this conclusion the learned single Judge of this Court relied upon Section 20 of the Punjab Borstal Act (hereinafter referred to as the 'Act'). But I am of the opinion that a person who has been convicted for an offence under Section 302 I.P.C. cannot be kept in the Borstal School. Section 5 of the Act empowers the Court which convicts a male person not less than 21 years of age for an offence to pass an order for detention of the accused in Borstal Institution not less than two years in lieu of transportation or rigorous imprisonment. It also empowers the Court to detain the convict for a period not exceeding seven years. Section 5 applies only to the cases of conviction for offences as defined in sub-section (4) of Section 2 of the Act. A person who is convicted for an offence punishable with death is excluded in the definition of an offence. Since the petitioner has been convicted for an offence which is also punishable with death is not entitled to be detained in Borstal Institution under the Act since that Act has no application in regard to the offences which are punishable with death or for an offence punishable under Chapter V-A or Chapter VI of the Indian Penal Code. When the Act itself does not apply, the petitioner cannot seek to be detained only in the Borstal Institution and he cannot be shifted to Central Jail. In this connection reference may be made to the decision of The Supreme Court in Subhash Chand v. State of Haryana, AIR 1988 SC 584 and Sube Singh v. State of Haryana, AIR 1988 SC 2235 wherein it has been held that the benefit under Section 5 of the Punjab Borstal Act cannot be claimed by an accused convicted under Section 302 I.P.C. In view of the decision of the Supreme Court the decision of Hon'ble Mr. Justice A. P. Chowdhary is to be held as rendered per incuriam. For the same reasons the decision of this Court in Balwinder Singh v. State of Punjab 1985 (1) R.C.R. 61 shall be deemed to have been overruled by the Supreme Court.