- (1.) The only question agitated before us by learned Senior Counsel for the Petitioner is that the provisions of Tamil Nadu Borstal Schools Act, 1925 (hereinafter 'Borstal Schools Act') have been ignored by the Courts below. It is evident from a perusal of the impugned judgment that the applicability of the said statute has not been raised in either of the Courts below. Briefly stated, the Petitioner has been sentenced to life imprisonment under Section 302 of the Indian Penal Code for the murder of his paternal uncle on 12.8.1999. It is not disputed before us that the Petitioner's date of birth is 29.11.1979 thereby making him 19 years 8 months of age on the date of the commission of the murder. The Petitioner having been found guilty has been sentenced to life imprisonment vide judgment of the Trial Court pronounced on 6.9.2002, on which date the Petitioner was 22 years 9 months old. It is contended before us by learned Senior Counsel that the Courts below erred in not directing the detention of the Petitioner in a Borstal School.
(2.) The Borstal Schools Act does not contemplate the term 'juvenile' at all. However, the definition of 'adolescent offender' is contained in Section 2(1) of the said Act and reads thus : " 'Adolescent offender' means any person who has been convicted of any offence punishable with imprisonment or who having been ordered to give security under section 118 of the Code of Criminal Procedure has failed to do so and who at the time of such conviction or failure to give security is not less than 16 in the case of a boy and not less than 18 in the case of a girl, but not more than 21 years of age in either case." We should clarify that Section 118 corresponds to Section 110 of the current 1973 Cr.P.C. The age of a juvenile prior to the present Act was 16 years and a legal anachronism palpably exists requiring an amendment to the Borstal Schools Act substituting the age of 16 years by 18 years for a boy. 'Adolescent' is seldom considered in any legal dictionary, whereas juvenile/minor/child is ubiquitously dealt with. Adolescence is the penumbral period (presently between 18 years and 23 years) when, for good reason, a person is not perceived and treated as an adult for the purposes of incarceration. The Borstal School is a halfway house intended to prepare a person for imprisonment in a regular/ordinary jail. Section 8 of the Borstal Schools Act stipulates that a convict cannot remain in a Borstal School beyond a period of five years or his attaining the age of 23 years. We should immediately note the distinction, as the relevant statutes ordain, between an 'adolescent' and a 'juvenile'. 'Juvenile' and its statutory synonym 'child' (and now even 'minor') has been defined in the Juvenile Justice (Care and Protection of Children) Act, 2000 [for short, 'Juvenile Justice Act'] Simply as a person who has not completed eighteen years of age. The repealed Juvenile Justice Act treated any person below the age of sixteen years as a juvenile and it is this age which is contemplated in the Borstal Schools Act. By virtue, therefore, of Section 8 of the Juvenile Justice Act, Special Homes have to be established for the 'reception and rehabilitation of a juvenile in conflict with law'. Again, it is this Act in terms of Section 16, that places an embargo on the imposition of any sentence of death or imprisonment for life.
(3.) In the context of the arguments addressed before us it is important to emphasise that it is the date of conviction that assumes singular significance. By virtue of the statutory definition of 'adolescent offender', on the date of the conviction he should have been not less than 16 years but not more than 21 years of age. Although this question does not arise directly before us, the date of juvenility was less than 16 years of age and, therefore, a plea on this ground had not been raised since the Petitioner was over 19 years on the date of occurrence of the unfortunate event or the conviction. Even in the postulation of the Juvenile Justice Act, no relief is available even retrospectively to the Petitioner. Under Section 8 of the Borstal Schools Act, the Court is empowered to pass a sentence of detention in the Borstal School when it appears to it expedient to pass such a sentence for a term which shall not be less than two years but shall not exceed five years. The rationale behind these provisions is obviously to insulate a young person or adolescent in contradistinction to a juvenile, during his waning impressionable years, from the pernicious influence of hardened criminals; and, on the other hand, to similarly insulate other persons sentenced to detention in Borstal Schools from the influence of convicts who have attained the age of 23 years or who have been detained in a Borstal School for five years.;