- (1.) The petitioner has been convicted for the offence of murder and sentenced to imprisonment for life. He claims in this application under Article 32 of the Constitution the benefit of the Punjab Borstal Act and has placed reliance on a decision of this Court in the case of Hava Singh v. State of Haryana, AIR 1987 SC 2001. A counter-affidavit has been filed disputing the tenability of the claim.
(2.) In Hava Singh's case (supra) a two-Judge Bench (including one of us) was considering the claim of a convict for an offence of murder to release taking into account the period the prisoner had stayed in the Borstal Institution. In that case, it was observed :- "It is evident from the averments made in the writ petition as well as in the said counter-affidavit that the petitioner 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 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(1) 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) and (3) .........................'." This Court further stated :- "The petitioner who was adolescent admittedly being less than twenty-one years of age at the time of his conviction though convicted under Section 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." The Court then referred to Section 20 of the Act dealing with incorrigibles and observed :- "The section empowers the State Government to commute the residue of the term of detention of an inmate in Borstal Institute to such term of imprisonment of either description not exceeding the residue as the State Government may direct and also to order transfer of the inmate to any jail in Punjab in order to complete the said term of imprisonment when such an inmate is reported to be incorrigible or is exercising bad influence on the other inmates of the Institution or such an inmate has committed a major Borstal Institution offence as provided in the rules." The Court then stated :- "This Court while considering an identical case in the State of Andhra Pradesh v. Vallabhapuram Ravi, AIR 1985 SC 870 has observed that 'a person detained in a Borstal School under Section 10-A has to be released after he has served the full term of 5 years of detention or on his completion 23 years of age. He cannot be retransferred thereafter to prison. Such a retransfer would defeat the very object and purpose of the Act of providing for detention of young offenders in Borstal School for the purpose of reformation and rehabilitation of such offenders'. It is to be noted in this connection that sentence of detention is passed in lieu of sentence of imprisonment which may have been passed. Hence the detention order under Section 5 of the said Act is not imprisonment and Borstal School where the adolescent offender is detained is not a prison. It has also been observed further that Section 433-A, Cr. P. C. would not operate where a person is detained by an order under Section 10-A of the Act. Section 433-A of the Code was introduced not to set at naught provisions like S. 10-A of the Act which dealt with a special class of offenders like adolescent offenders but only to regulate capricious and arbitrary decisions under Section 432 of the Code and the remission rules sometimes reducing the sentence of imprisonment for life imposed on persons who had been convicted of capital offences but had been sentenced to imprisonment for life to short periods like five to six years."
(3.) Under the Punjab Act, 'offence' has been defined in Section 2(4) to mean- "an offence punishable with transportation or rigorous imprisonment under the Indian Penal Code other than- (a) an offence punishable with death;." Hava Singh's case, AIR 1987 SC 2001, did not refer to the definition of 'offence' and relied upon the decision in the case of Ravi (supra) though the scheme of the Andhra Act was very different. The Andhra Act known as the Andhra Pradesh Borstal Schools Act, 1925, does not have the definition of 'offence' and there is no exclusion as provided in the Punjab Act.;