B. C. Ray, J. - (1.) The petitioner who was aged about 18 years along with one Subeh Singh was involved in a case of murder of one of Ranbir Singh and he was convicted for an offence u/s. 302/34 I.P.C. and sentenced to life imprisonment by judgment and order dated 22nd May, 1980. The petitioner being admittedly below 21 years of age at the time of alleged commission of offence was sent to Borstal Institution in accordance with the provisions of Punjab Borstal Act, 1926. It has been stated that the petitioner has already undergone a period of about 6 years, 10 months and 11 days detention in jail and together with remissions earned by him it comes to over 10 years. It has been further stated that he is entitled to be released both under the Punjab Borstal Act as well as under Paragraph 516-B of the Punjab Jail Manual and has therefore prayed for his premature release as provided under the Punjab Borstal Act and also under Paragraph 516-B of the Punjab Jail Manual. In the counter-affidavit filed on behalf of the respondent sworn by one Shri Rain Chander Sarwan, Superintendent of District Jail at Rohtak it has been stated that the petitioner was convicted and sentenced to life imprisonment u/s. 302/34 I.P.C. on 22-5-1980 by the Sessions Judge, Rohtak and he was sent to District Jail, Rohtak to undergo the sentence passed upon him. It has been further stated at the time of conviction he was 19 years of age and as such he was sent to D.I. and J. Jail, Hissar. He was transferred back to this Jail (Rohtak District Jail) on 16-12-1981 for trial in IInd case (FIR No. 111/78 u/s. 452/325/34 I.P.C.). He was acquitted in this II nd case and as he was about 21 years of age so he was kept in the Jail to undergo the life imprisonment imposed upon him on 22-5-1980. It has been further averred that after the amendment of the Criminal Procedure Code the petitioner being sentenced to life imprisonment has to undergo 14 years of substantive sentence u/s. 433-A of the Code before his case can be considered for premature release. The detail of sentence undergone by the petitioner as on 22-12-1986 was also given in the said affidavit wherefrom it appears that he has already undergone 7 years, 3 months and 3 days actual sentence up to 22-12-1986. It has therefore been stated that the petitioner having not undergone 14 years of actual sentence, he cannot be released prematurely.
(2.) It is evident from the averments made in the writ petition as well as in the said counter-affidavit that the petitioner who was admittedly adolescent at the time of his conviction was sent to Borstal Institute at Hissar. Subsequently, he has been transferred to the District Jail at Rohtak and is undergoing the sentence of imprisonment for life. It appears from the objects and reasons of Punjab Borstal Act, 1926 that the object of the Act is to provide for segregation of adolescent prisoners from those of more mature age, and their subsequent training in separate institutions. These Borstal Institutions are meant for detaining adolescent offenders and to impart to them such industrial training and other instructions and subject them to such disciplinary and moral influence as will conduce to their reformation. This is evident from the provisions of Section 2(l) of Punjab Borstal Act, 1926. Sub-section (2) of Section 2 defines 'detained' as detained in and 'detention' as detention in a Borstal Institution. Section 5 of the said Act which is very vital for the purpose of decision of this case is quoted hereinbelow:- "5. Powers of courts to pass a sentence of detention in a Borstal Institution in the case of a convict under twenty-one years of age in lieu of transportation or rigorous imprisonment - (1) When any male person less than twenty-one years of age is convicted of an offence by a court of session, a Magistrate specially empowered under Section 30 of the Code of Criminal Procedure, 1898, or a Judicial Magistrate of the first class, or is ordered to give security for good behaviour and fails to give such security, and when by reason of this criminal habits or tendencies or associations with persons of bad character it is expedient in the opinion of the Judge or Magistrate, that he should be detained, such Judge or Magistrate may, in lieu of passing a sentence of transportation or rigorous imprisonment, pass an order of detention for a term which shall not be less than two years and shall not exceed seven years when the order is passed by a court of session or a Magistrate specially empowered under Section 30 of the Code of Criminal Procedure, 1898, and shall not be less than two years nor exceed three years, when the order is passed by a judicial Magistrate of the first class not so empowered. (2) When any Judicial Magistrate not empowered to pass such order is of opinion that an offender convicted by him is a person in respect of whom such order should be passed in accordance with the provisions of sub-section (1), he may, without passing any sentence, record such opinion and submit his proceedings and forward the accused to the Chief Judicial Magistrate to whom he is subordinate. (3) The Chief Judicial Magistrate to whom the proceedings are so submitted may make such further enquiry (if any) as he may deem fit and pass such order for the detention of the offender or such other sentence or order, as he might have passed if the trial had been held by him from its commencement."
(3.) Thus it is manifest from Section 5 of the said Act that either a Sessions Judge or a Magistrate of first class or a Magistrate specially empowered under Section 30 of the Code of Criminal Procedure after convicting any male person who is less than twenty-one years of age, of an offence punishable with imprisonment for life or transportation or other rigorous imprisonment or a convict is ordered to give security for good behaviour and fails to give such security, may in lieu of passing a sentence of transportation or rigorous imprisonment pass an order of detention which shall not be less than two years and shall not exceed seven years when an order is passed by a court of session or a Magistrate specially empowered under the Code of Criminal Procedure. The petitioner who was adolescent admittedly being less than twenty-one years of age at the time of his conviction though convicted u/s. 302/34 I.P.C. and sentenced to imprisonment for life, was sent to the Borstal 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. On the other hand on a plain reading of Section 5 it is clear that the adolescent convict under twenty-one years of age after expiry of his period of detention has to be released from detention and he is not to be transferred to Jail for undergoing the unexpired period of his sentence of imprisonment. Section 20 of the said Act is in the following terms.:- "20. Incorrigibles- Where an inmate is reported to the State Government by the visiting committee to be incorrigible or to be exercising a bad influence on the other inmates of the institution or is convicted under Section 19 of this Act or is reported by the Superintendent to have committed an offence which has been declared to be major Borstal Institution offence by rules made by the State Government in pursuance of the provisions of sub-section (14) of Section 34 of this Act, the State Government may commute the residue of the term of detention to such term of imprisonment of either description not exceeding such residue as the State Government may direct, and may order the transfer of the inmate to any jail in Punjab in order to complete the said term of imprisonment".;