Holding

Section 433A of the Code of Criminal Procedure does not apply to adolescent offenders detained in a Borstal School under section 10‑A of the Andhra Borstal Schools Act; they must be released upon attaining 23 years of age.

Summary

Vallabhapuram Ravi was convicted of murder and sentenced to life imprisonment. While serving the sentence he was transferred by the Andhra Pradesh Government to a Borstal School under section 10‑A of the Andhra Borstal Schools Act, 1925, to remain there until he turned 23. When he was not released upon attaining that age, he obtained a writ of habeas corpus and the High Court ordered his release. The State appealed, contending that section 433A of the Code of Criminal Procedure, 1973, which requires a life‑sentenced prisoner of a capital offence to serve at least fourteen years before release, barred his discharge. The Supreme Court held that section 433A applies only to persons actually undergoing imprisonment in a prison, not to those detained in a Borstal, which is a distinct institution governed by a special local law; the "as if" clause of section 10‑A extends all Borstal privileges, including release at age 23. Consequently, the appeal was dismissed and the High Court's order stood.

Issues considered

Whether section 433A of the Code of Criminal Procedure, 1973, bars the release of an adolescent offender transferred to a Borstal School under section 10‑A of the Andhra Borstal Schools Act, 1925, after he attains the age of 23.
Whether the special provisions of the Andhra Borstal Schools Act, 1925, prevail over the general provision of section 433A of the Code of Criminal Procedure.

Legislation cited

Andhra Borstal Schools Act, 1925s. 10-A, s. 14, s. 19-C, s. 21-A, s. 8
Code of Criminal Procedure, 1973s. 433A
Constitution of Indias. Entry 2 of List III, s. Entry 4 of List II
Indian Penal Code, 1860s. 302
Madras Borstal Schools (Amendment) Act, 1939

Subjects

adolescent offenderBorstalsection 433Alife imprisonmentspecial law vs general lawnon‑obstante clauseremissionrelease at age 23deeming provision

Judgment

729

A
STATE OF ANDHRA PRADESH

v•
•
VALLABHAPURAM RAVI B
September 14, 1984

[E.S. VENKATARAMIAH AND SABYASACHI MUKHARJI, JJ.]

Code a/Criminal Procedure, J973-S.433A-Whether bars release of an
c
adolescent offender transferred to Borstal School under s.10-A of the Andhra
Borstal Schools Act, 1925, as a1nended, after he has attained age of 23 years.

Andhra Borstal Schools Act, 1925-S. !O-A introduced by the Madras Borstal
Schools (A1ne11dment) Act, 1939 (Madras ActXJ/i of 1939)-S.IO-A not affected by D
S.433A of1he Code of Criminal Procedure, 1973 and must be given full affect to.

The respondent, an adolescent, was convicted for an offence punishable
under section 302 of the Indian Penal Code and sentenced to imprisonment for
' life. After the respondent had undergone the sentence for a few months in a
prison, he was ordered to be detained in a Borstal School under an order made
by the appellant State Government under section iO-A oftbe Andhra Borstal
. Schools Act, 1925 (hereinafter referred to as 'the Act') to serve unexpired portion E
of the sentence till he attained the age of 23 years. Since the respondent was not
• released on his attaining the age of 23 years, the respondent filed a habeas corpus
petition in the High Court. The High Court allowed the petition and directed the
appellant to release the respondent. Hence this appeal by the State Government
by special leave. kThe appellant contended that in view of the mandate of section
433A of the Code of Criminal Procedure, 1973 any person who was sentenced to
imprisonment for life for an offence for which death was one of the punishments
provided by law could not be released from prison unless he had served at Jcast
14 years of imprisonment even though by an order made under section 10-A of
the Act he had been detained in a Borstal school.

Dismissing the appeal,

HELD: The appellant's contention overlooks the words 'prison• and 'impri- ~
sonment' in section 433A of the Code and the effect of an order made by the State
Government under section 10-A of the Act read with section 8 thereof. Entry 4
of List II of the Seventh Schedule to the Constitution which reads as "4. Prisons,
reformatories, Borstal institutions and other institutions of a like nature, and
persons detained therein ..• " also makes a distinction between a prison and a
Borstal institution. Section 433A of the Code refers to a person who is actually
undergoing imprisonment. As SOOD at an order is made under 1.10.A of tho Act H
730 SUPREME COURT REPORTS (1985j l S.C.R.

in respect of a person who is sentenced to imprisonn1ent for life, and he is sent to
A
a Borstal school pursuant thereto, he ceases to be a prisoner undergoing imprison-
ment. He would be a detenu in a Borstal school and the provisions of section 8
of the Act will have to be given their full effect in hi'> case also. It is true that
there is some apparent contradiction between the two sentences of section 10-A.
But having regard to the object of the legislation and the meaning of the words
'as if' in the second sentence, we should extend all the privileges available to an
B offender detained under section 8 of the Act to a pri<;oner who is directed to be •
transferred to a Borstal school und~r section 10 A. Under section 8 of the Act
the person detained in a Borstal school can be kept there for a maximum period
of five years and in no case after he has attained 23 years of age. There is no
provision for sending him back to prison except section 14 of the Act which will
not be applicable to a person against whom no report is 111ade by the Superin-
tendent of a Borstal school as stated therein. If section 14 of the Act is inappli-
c cable there is no legal way in which he can be sent back to prison to satisfy the
requirements of section 433A of the Code, Moreover, an anomalous situation
which arises in the case of a person sent to a Borstal school under section 10-A
of the Act is that if the period of detention in a Borstal schOol is not to be coun-
ted as the period of imprisonment because detention is ordered in lieu of impri-
sonn1ent and because Borstal school is not a prison then such person cannot claim •
by way of credit the period of detention in a Borstal school while con1puting the
D fourteen years of imprisonment mentioned in section 433A of the Code. If that
is so, should he undergo an extra period of imprisonment equivalent to the
period of his detention to make good the deficiency to satisfy the requirements
of that section 1 That would hardly be a proper thing to be demanded of him.
[743F·H ; 744A·E] •
E Emperor v. Lakshman Shivram, A.LR. 1933 Bom. 461. (FB), referred to.

In re T. Munirathnam Reddi & Anr., A.I.R 1955 Andhra 118. Jn re. •
Krishnaswatni alias Kilian, A.LR. 1949 Mad. 109. Jn re. Periyaswami Asari,
A.I.R. 1949 Mad. 223 and Kesavan v. State of Kera/a, 1957 K.L.G. 1049,
overruled.
F
If every person who is transferred under section 10-A of the Act to a
Borstal school is to remain there until he serves out the entire period of iin-
prisonmcnt for life, the Borstal school would soon become a prison consisting
of' lifers' and its other inmates who arc detained under section 8 of the Act
would be keeping company with adult offenders, thus defeating the very object
G of establishing a Borstal school. The Court should as far as possible avoid a
construction which w~ll make the legislation futile . The second reason is that
the words 'as if' appearing in the second sentence in section lO-A make it a
deeming provision and such deeming provision should in law be carried to its
logical end. [740E-G]

East End Dwe/ling1 Co. Ltd. v. Finsbury Borough Council, [1952] A.C. 109
H at p. 132. roferred to.
ANDHltA PRADESH v. v. RAVI 731

If a person detained in a Borstal school under section 10-A of the Act
A
is to be retransferred to the prison after he serves out the full term of detention
in the school it will defeat the very object and purpose of the Act of providing
for detention of young offenders in a Borstal school for the purpose of refor-
mation and rehabilitation of such offenders and that person who is deteincd in
a Borstal school has to be released if he has completed 23 years of age.
[7410-H]
B
Bondili Jagannath Singh v. The Government of Andhra Pradesh. 1983 (2)
Aodbra Pradesh Law Journal 262, upheld.

In the instant case, the Andhra Borstal Schools Act, 1925, which speci-
fically deals with the case of a small section of perSons namely adolescent
offenders traceable to the legislative power derived from the expressions 'Prisons'
and 'Borstal institutions' in Entry 4 of the State List and which is a local law, c
prevails on all the provisions of the Code including section 433A of the Code as
there is no provision which excludes the operation of the Act which deals with
Borstal institutions. Section 433A of the Code was introduced not to set at
naught provisions like section lO·A of the Act which dealt with a special class
of offenders like adolescent offenders but only to regulate capricious and arbi-
trary decisions under section 432 of the Code and the remission rules sometimes
• reducing the sentence of imprisonment for life imposed oa persons who had been D
convicted for capital offences but had been sentenced to imprisonment for life
to short period~ like five to six years. [747E-H]
Maru Ram etc. etc. v. Union of India & Anr., [1981] 1 S.C.R. 1196,
explained and distinguished.
f Section 433A of the Code would not operate in respect of persons dealt
E
with under section 10-A of the Act and that Parliament never intended while en-
acting section 433A to deny the benefit available to adolescent offenders under
section 10-A of the Act. Therefore, section 10-A of the Act remains unimpaired
and it has to be given full effect even after the enactment of section 433A of
• the Code. [749C-D)

In re. Ganapati, 1983 Criminal Law Journal _;509; overruled.
F
Kunwar Bahadur & Ors. v. State of. Uttar Pradesh, AIR 1979 S.C. 1509,
referred to .
•
(Per Sabyasachi Mukharji, J.)

There is some anomaly in section JO.A of the Andhra Pradesh Borstal
Schools Act, 1925. It empowers the State Government to 'transfer adolescent
offenders sentenced to traosporation to Borstal School'. It further provides
that if the State Government is satisfied that any adolescent offender might with
advantage be detained in Borstal School, direct that such offender shaU be
transferred to a Bors to I School, 'there to serve the whole or any part of the
unexpired residue of the sentence'. (emphasis supplied), The section further
stipulates that the provisions of the said Act should apply to such offender 'as if H
732 SUPRl!Mll COURT REPORTS [1985] l S.C.R.

A he had been originally sentenced to detention in a Borstal School'. My learned
brother has, with th~ aid of the principle enunciated by Lord Asquith in East
End Dwellings Co. Ltd. v. Finsbury Borough Council, deemed that the orginal
sentence of transferring the petitioner to a Borstal School has been passed by
the Court at the time of imposing sentence originally. But in fact in passing
the order under section 10..A expression used by the State Government is that
the person concerned should be detained in 'Borstal School' to :serve the unex-
B pired portion of the sentence till he attains the age of 23 years. So the sentence
actually passed by the enabling section by the State Government directs the
detenu 'to serve the unexpired portion of the sentence'. Therefore we have to
deem as if the sentence was passed by the court at the time of the passing of the
•
original sentence by the court. In a matter of this nature, the statute should be
more specific and in that view of the matter, the Government should considP.r
the question of either altering the language of section IO·A of the Act or be
c more specific while passing any orders under section IO·A of the. [750E·H]

East End Dwellings Co. v. Ltd. v. Finsbury Borough Council, [1952] Appeal
Cases 109 at p. 132, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
D •
No. 254 of 1984.

Appeal by Special leave from the Judgment and Order dated
the 29th November, 1983 of the Andhra Pradesh High Court in W.P.
No. 6601 of 1983
E •
P. Ram Reddy, G. Narasimhulu for the Appellant.

A. Subba Rao for the Respondent. •
F The following Judgments were delivered

VENKAT ARA MIAH, J. The main question involved in this appeal
by Special Leave is whether on the coming into force of section
433A of the Code of Criminal Procedure, 1973 (hereinafter referred
G to as 'the Code') an adolescent offender who is sentenced to
imprisonment for life on being convicted of an offence for which
death is also one of the punishments prescribed by law and who
later on is by an order made by the State Government directed to
be sent to a Borstal School under section 10-A of the Andhra
Borstal Schools Act, 1925 (hereinafter referred to as 'the Act') is
liable to be kept in a Borstal School or in a prison at least for a
ff period_of fourteen years,
ANDHRA PRADESH v. v. MVI (Venkataramiah, J.) 733

The respondent Vallabhapuram Ravi was born on April 28,
•
A
1960. Unfortunately owing to an incident which took place when
he was still in his teens, he was convicted of an offence punishable
under section 302 of the Indian Penal Code and sentenced to
imprisonment for life on April 29, 1980 in the Sessions Case No.
51 of 1980 on the file of the Sessions Judge, Guntur in the State of
Andhra Pradesh. On September 12, 1980 the State Government B
of Andhra Pradesh on being satisfied that it would be to the advan-
' tage of the respondent if he was transferred to a Borstal School
made an order under section lO·A of the Act in G.O. Rt. No. 2394
Home (Prisons-BJ Department dated September 12, 1980 directing
that he should be detained in a Borstal School to serve the unexpired c
portion of the sentence till he attained the age of 23 years. Accord-
ingly he was transferred to the Borstal School at Visakhapatnam on
October 14, 1980. The respondent was classified as a Special Star
Grade Inmate which was the highest classification on the basis of
industrious and good conduct under section 19-C of the A<;_t. Since
he was not released on bis attaining 23 years of age on April 28, D
1983 in accordance with the decision of the High Court of Andhra
Pradesh in Bondili Jagannath Singh v. The Government of Andhra
Pradesh,{') he sent a letter to the High Court of Andhra Pradesh
requesting it to issue a writ of habeas corpus to the State Government
to release him. The High Court treated the letter as a writ petition E
and after hearing the State Government passed an order on
November 29, 1983 in Writ Petition No. 6601 of 1983 directing
the States Government to release the respondent. Aggrieved by the
decision of the High Court, the State Government has filed this
• appeal under Article 136 of the Constitution • F

Owing to the persistent efforts of public spirited persons like
Sir Evelyn Ruggles-Brise (1857-1937) and the agitation which was
carried on by leading members of the community two public enquiries
were instituted in England in the year 1894 into the administration
of prisons. The enquiries revealed that in England annually about G
20,000 young criminals belonging to the age group of 16 to 21 were
being admitted into prison by the end of the last century and that it
was necessary to find a remedy to prevent the inflow of such large
number of youngmen into the prisons lest they should turn out ,to be
professional criminals in later years on account of the pernicious

(I) 1983 (2) Andbra Pradesh Law Journal 262. ff
734 SUPREME COURT REPORTS (1985] 1 S.C.ll.

A infiu~nce the prison life and the close association with other adult
prisoners would have on them. This led to the passing of two laws
by the British Parliament, namely, the Prevention of Crime (Borstal)
Act, 1908 and the Children Act, 1908. These laws were followed
•
by the Criminal Justice A~ts of 1948, 1961 and 1972 and the Child-
ren and Young Persons Act, 1969 and each of them made detailed
B provisions for dealing with young or adolescent offenders. The
principle underlying these laws was that if children or adolescents I
found to be gnilty of offences by criminal courts were in lieu of
ordinary sentence of imrrisonment kept in a special form of deten-
tion in a place other than a prison, of which the purpose was to
develop mentally, physically and morally all inmates by giving them
c necessary training, there was every 'likelihood of such persons being
reformed and accepted by society as persons who had no inclination
to commit 'crimes in the future. It was generally felt that every
offender upto a certain age "May be regarded as a potentially good
citizen ; that his lapse into crime may be due either to physical
D degeneracy or bad social environment; that it is the duty of the State •
at least to try to effect a cure, and not to class the offender off~and
and without experiment with the adult professional criminal" (See
Encyclopaedia Britannica, 1962 Edn., Vol. III at page 923). This
system of treatment of juvenile or adolescent offenders came to be
called the 'Borstal System' after the village of Borstal in K1nt
E (England) where the early experiments on boys between the ages of •
16 and 21 were carried out in an old convict prison before the pass-
ing of the above mentioned Acts of 1908. The Borstal System sub-
sequently became popular in all the Commonwealth countries and
was introduced through laws passed for the purpose of achieving its •
object. One such law is the Act which was enacted in the year
F
1925. Its object was to make provision for the establishment and
regulation of Borstal Schools for detention and training of adolescent
offenders. The relevant provisions of the Act i.e sections 2 (I) and •
(2), 8 and 10-A are extracted below for ready reference :

G "2. In this Act, unless there is anything repugnant in the
subject or context :-

1. "Adolescent offender" means any person who has
H been convicted of any offence punishable with imprison- •
ment or who having been ordered to give security under
ANDHRA PRADESH v. v. RAVI (Venkataramiah, J.) 735

section 106 or 118 of the Code of Criminal Procedure has A
faield to do so and who at the time of snch conviction or
failure to give security is not less than 16 nor more than
21 years of age ;

2. "Borstal School" is a corrective institution wherein
adolescent offenders, whilst detained in pursuance of this B
Act, are given such industrial training and other instruct-
tion and are subject to such disciplinary and moral influ-
ences as will conduce to their reformation and the preven-
tion of crime : ............ · · · · · ·"

"8. Power of Court to pass sentences of detention in G
Borstal School.-Where it appears to a Court having
jurisdiction under this Act that an adolescent offender
should, by reason of his criminal habits or tendencies,
or association with persons of bad character be subject to
• detention for such term and under such instruction and
0
diScipline as appears most conducive to his reformation
and the repression of crime, it shall be lawful for the
Court, in lieu of passing a sentence of imprisonment, to
pass sentence of detention in a Borstal School for a term
which shall not be less than two years and shall not exceed
five years but in no case extending beyond the date on
which the adolescent offender will, in the opinion of the
Court attain the age of twenty three years ;

Provided that, before passing such sentence, the
Court shall consider any report of representation which
may be made to it including any report or representation (I
made by the probation officer of thearea in which the
• offender permanently resided at thetime when he
committed the offence as to the suitability of the case
for treatment in a Borstal School and '.shall be satisfied
that the character, state of health and mental condi-
. " tion of the offender and other circumstances of the case
are such that the offender is likely to profit by such ins-
G

truction and discipline as aforesaid."

"IO-A. Power of State Government to transfer offenders
sentenced to transportation to Borstal Schools. The State
Government may, if satisfied that any offender who has R
736 SUPREME COURT REPORTS [1985] 1 S.C.R.

A been sentenced to transportation either before or after
the passing of madras Borstal Schools (Amendment) Act,
1939, and who at the time of conviction was not less than
16 nor more than 21 years of age, might with advantage
•
be detained in a Borstal School, direct that such offender
shall be transfeired to a Borstal School there to serve
B the whole or any part of the unexpired residue of his
sentence. The provisions of this Act shall apply to such
offender as if he had been originally sentenced to detention
in a Borstal School.

An order may be made under this section notwith-
c standing that the sentence of transportation has been sub-
sequently commuted into a sentence of imprisonment."

Any person who is not less.than 16 years nor more than 21
years of age on the date of his conviction of an offence punishable
with imprisonment or who having been ordered to give security
D
under section 106 or section 117 of the Code fails to furnish such
security is considered an adolescent offender under the Act. When
such an offender is convicted of an offence punishable with
imprisonment it is the duty of the court convicting him to consider
whether having regard to his criminal habits or tendencies or asso- •
E ciation with persons of bad character he should be detained for
such period and under such instruction and discipline as appears
most conducive to his reformation and repression of crime. If
the Court considers that it is desirable to do so it may in substi- •
tution of the sentence of imprisonment pass a sentence of deten-
tion in a Borstal School for a term which shall not be less than
F two years and shall not exceed five ye1rs. In no case he can be
detained in a Borstal School beyond the age of twenty three years.
This outer limit of 23 years of age was introduced by an amend-
ment made by the Madras Borstal Schools (Amendment) Act,
1936 (Madras Act XIX of 1936). Before passing such order of
detention the court should satisfy itself about matters set out in
G the proviso to section 8 of the Act including any report made by
the Probation Officer of the area concerned. It is seen that the
sentence of detention is passed in lieu of the sentence of imprison-
ment which may have been passed. Hence the detention ordered
under the above provision is not imprisonment and the Borstal
H School where the adolescent offender is detained is not a prison.
ANDHRA PRADESH v. v. RAVI (Venkataramiah, J.) 737

This is also the view taken by Beaumont, C.J. in Emperor v.
A
Laksliman Shivra111(1) which was a case arising under the Bombay
Borstal Schools Act, 1929. Merely because section 5 of the Act
• has made the Prisons Act, 1894 and Prisoners Act, 1900 applica-
ble to a Borstal School regarding matters not otherwise provided
for does not make it a prison or its inmates prisoners.. The
period of detention has no relationship to the sentence of impri- B
sonment that could have been imposed under law. It is based on
the opinion of the court as to what is conducive to the reformation
of the person detained and the repression of the crime and in no
case it can exceed five years or can be beyond the date on which
the person attains 23 years of age. Section IO-A of the Act which
was introduced by the Madras Borstal Schools (Amendment) Act, c
. 1939 (Madras Act XIII of 1939) provides that the State Govern-
ment, if satisfied that any offender who has been sentenced to im-
prisonment for life and who at the time of conviction was not less
then 16 years of age nor more than 21 years of age might, with
advantage be detained in a Borstal Schools, direct that such offen-
!)
der shall be transferred to a Borstal School, there to serve the
whole or any part of the unexpired period of sentence. The second
sentence in section IO-A of the Act is a deeming provision. It
provides that the provisions of the Act shall apply to such offender
•· as if he had been originally sentenced to detention in a Borstal
School. In view of this clause it is contended and we feel rightly E
that it would not be open to detain a person in a Borstal School
beyond the age of twenty three years, nor can he be sent back to
the prison except under section 14 of the Act. Section 14 of the
• Act reads thus :
"14. Transfer of incorrigibles etc. to prisons. Where
F
a person detained in a Borstal School is reported to the
State Government by the Superintendent of such School to
be incorrigible or to be exercising a bad influence on the
other inmates of the school or in the case of person direct-

,. ed to sent to a Borstal School before the commencement of
the Madras Borstal School (Amendment) Act, 1966, to be G
over twenty three years of age, the State Government may
commute the unexpired residue of the term of detention to
such term of imprisonment of either description as the
• State Government may determine, but in no case exceed-
ing:
(I) AJ.R. 1933 Born. 461 (F.B.).
H
738 SUPREME COURT REPORTS (1985) 1 S.C.R.

(a) such unexpired residue, or
A
(b) the maximum period of imprisonment fixed for
the offence or the failure to give security as the case may
be, or •
B
(c) the maximum period of imprisonment which the
Court that tried him had authority to award under the
Code of Criminal Procedure, 1898, whichever is shortest." ii

While construing section 14 of the Act we may omit the
Cl unnecessary words 'or in the case of person directed to be sent to a
Borstal School before the commencement of the Madras Borstal
Schools (Amendment) Act, 1936, to be over 23 years of age' as they
do not apply to a person who is sent to a Borstal School after the
commencement of the Madras Borstal Schools (Amendment) Act,
1936. These words had to be introduced to remove the anomaly
that would have arisen by the amendment made to section 8 by the
D •
same Amending Act providing that no person could be kept in a
Borstal School after he had attained 23 years of age and to deal
with cases of persons who had already been detained in a Borstal
School and who had crossed 23 years of age. Hence omitting the
above words what section 14 of the Act means is that where a
E person detained in a Borstal School is reported to the State Govern- •
ment by the Superintendent of such School to be incorrigible or to
be exercising a bad influence on the other inmates of the School,
the State Government may commute the unexpired residue of the
period of detention which in no case can be for more than five
years to such term of imprisonment of either description as the
F State Government may determine, but in no case exceeding (a)
such unexpired residue, or (b) the maximum period of imprisonment
fixed for such offence or the failure to give security, as the case may
be, or (c) the maximum period of imprisonment which the Court
that tried him had authority to award under the Code, whichever is
shortest. It is obvious from the foregoing that even in the case of a
G person who is convicted of an offence punishable for imprisonment for
life, but who is detained in a Borstal School by virtue of an order made
by the State Government under section JO-A of the Act, the period
of imprisonment that can be substituted by the State Government
in the place of the period of detention cannot exceed five years in
any event. This is the only provision in ·the Act which authorises the
H State Government to shift a person who is in a Borstal School to a
ANDHRA PRADESH v. v. RAVI (Venkataramiah, J.) 739
prison and even here it is possible only where there is an adverse
report against him by the Superintendent of the Borstal Schools a A
stated therein.

I may here refer to some of the decisions having a hearing
on the effect of an order made under section IO-A of the Act,
B
In In re T. Munirathnam Reddi & Anr.(1) Subba Rao, C.J .
. dealing with the case of an adolescent offender who was convicted
under section 302 of the Indian Penal Code and sentenced to
transportation for life observed thus :
"In this case, we are satisfied that the 1st accused is G
not a hardened criminal. He was a student of Sri Venka-
teswara College and was below 21 years at the time he was
convicted of the offence. We have also found that he shot
the deceased when he abused him and his father presum-
ably ~when they questioned him about his conduct in
D
' insulting his mother. The act was done by an young man
of good antecedents in an emotional state. In our view. s.
10-A, Borstal Schools Act is really intended to govern the
case of such accused. We, therefore, while sentencing the
Ist accused to transportation for life, recommend his case
• to the Government to take action under S. 10-A and to
commit him to the Borstal School for such period as they
think fit."

·fhe above decision shows that the High Court of Andhra
Pradesh was of the view that on making an order under section
IO A of the Act, the State Government could commit a person F
sentenced to transportation for life to a Borstal School for such
period as it thought fit. The High Court of Madras has also passed
similar ordess in In re. Krishnawami alias Kilian(') and in In re.
Periyaswami Asari.l3) It is true that the Kerala High Court has held
in Kesavan v. State of Kerafa(') that a person above 16 and below
G
21 years of age at the time he committed mnrder and sentenced to
imprisonment for life could be detained in a Borstal School under
section I 0-A of the Act but he has to serve the whole or any part of
the unexpired residue of his sentence in that institution. The High

• (1) A.LR. 1955 Andhra ll8 .
(2) A. J.R. !949 Mad. 109.
(3) A.LR. 1949 Mad. 223.
(4) 1957 K.L.J. 1049.
,

'140 StJPREMa COURT REPORTS [1985] l s.c.R.

A Court of Kerala holds that the second sentence in section 10-A has
not the effect of attracting the limitation that a person cannot be
kept in a Borotal School after he attains 23 years of age found in
section 8 of the Act for according to that Htgh Court that sentence
•
merely says that the provision of the Act shall apply to an offender
whose detention in a Borsa] School is directed under section 10-A
8
as if he had been originally sentenced to detention in a Borstal
School, not that the provisions of the Act shall be applied in making
the direction. The High Court of Kerala appears to be unwilling
to give full effect to the words 'as if' in the second sentence of section
10-A in view of the presence of the words 'the whole or any part
D of the unexpired residue of his sentence' at the end of the
first sentence in section 10-A of the Act. It is true that there is
some apparent contradiction between the two sentences. But having
regard to the object of the legislation and the meaning of the
words 'as if' in the second sentence, we should extend all the
privileges available to an offender detained under section 8 of the
c Act to prisoner who is direct~d to be transferred to a Borstal •
School under section l 0-A. The object of the legislation is to reform
offenders who have committed acts visiting them with the penalty
of undergoing prison life when they were between 16 and 21 years of
age and that is sought to be achieved by taking them away from the
company of adult prisoners whose continued association in a prison •
E
would have serious adverse influence on their character. Jf every
person who is transferred under section 10-A to a Borstal School
is to remain there until he serves out the entire period of
imprisonment for life, the Borstal School would soon become a •
prison consisting of 'lifers' and its other inmates who are detained
F under section 8 would be keeping company with adult offenders, thus
defeating the very object of establishing a Borstal School. The Court
should as far as possible avoid a construction which will make the
the legislation futile. The second reason is that the words 'as if'
appearing in the second sentence in section 10-A make it a deeming
provision and such deeming provision should in law be carried to
its logical end. This Court while construing such deeming provision
G has adopted and applied in a number of cases the rule of construc-
tion expounded by Lord Asquith in East End Dwellings Co. Ltd. v.
Finsbury Borough Council (1) in the following words :
•
a (I) E1952J A.c. 109 132.
A.NDllRA PRADES!I v. v. RAVl((Venkataramiah, J.) 741

"If you are bidden to treat an imaginary state of affairs A
as real, you must surely, unless prohibited: from doing so,
also imagine as real the consequences aud incidents which·
if the putative state of affairs had in fact existed must
inevitably have flowed from or accompanied it. One of
these in this case is emancipation from the 1939 level of
rents. The statute says that you must-_imagine a certain
state of affairs ; it does not say that having done so, you B
. must cause or permit your imagination to boggle ·when it
comes to the inevitable corollaries of that state of affairs."

It may also be noted that apart from the clause in section 8
which prescribes that no person detained under it can be kept in c
a Borstal School after he attains 23 years of age, there are other
provisions in the Act which are specially applicable to the inmates
of a Borstal School. Section 21-A of the Act empowers the State_
Governri.ent io order at any time the discharge of an inmate of any
Borstal Schoof either absolutely or subject to such conditions; as
it may think fit. The expression 'inmate' in section 21-A should·
in the ordinary course include a person who is direCted to be
transferred to a Borstal School under section 10-A of the Act.
Section 19-C of the Act provides for classification of· such
...,- immates into various grades for purposes ·of discipline' and>
control in a Borstal School. The provisions in Part III of the·
Act lay down the procedure for releasing the inmates of a Jlorstal E
,.. School on licence. Section 13-A of the Act authorises the transfer
of an inmate of a Borstal School in the State of Andhra Pradesh
· "'to any Borstal School or other School of a like nature' in any
.J. other part of India, with the consent of the Govermn~ni of the
r - other State concerned. Every - one of these provisions is applicable
" to a person transferred under section 10-A. . ·
.
I agree with the decision of the High Court of Andhra
Pradesh in Bondili Jagannath Singh v. The Government of Andhra . i
G
Pradesh case (supra) that if a person detained in a Borstal School
under section 10-A of the Act is to be retransferred to the prison
after he serves out the full term of detention in the School it will ,
defeat the very object and purpose of the Act of providing for
)
detention of young offenders in a Borstal School for the purpose of
reformation and rehabilitation of such offenders and that person
sui>wm COURT REPORTS [1985] 1 s.c.ll..

A. who is detained in a Borstal School has to be released if he has
completed 23 years of age. llut Slui P. Rama Reddi, learned
counsel for the State of Andhra Pradesh very fairly submitted while
a person detained in a Borstal School under section 10-A of the Act
was entitled to be released on his attaining 23 years of age before
the commencement of section 433 A of the Code, he cannot be
B now released until he has undergone fourteen years of imprisonment
as prescribed by section 433 A if he is a person who is sentenced t
for imprisonment for life for an offence for which death is also one
of the punishments prescribed by law.. ··

c Now arises the· crucial question whether on the coming into
force of section 433 A of the Code, a person who had been
sentenced to impri•onment for life on being convicted of an offence
for which death is also prescribed as a punishment and who being
a person not below 16 nor above 21 years of age had later on been
directed by. the State Government under section 10-A of the Act
to be detained in a Borstal School is entitled to be released on his
D completing 23 years of age without any regard to the provision in
section 433 A· of the Code which insists that a person who is
sentenced to imprisonment for life on . being convicted of such an
·· offence should actually undergo imprisonment for a minimum
·period ofofourteen years. Section 433 A of the Code which came
E into force on December 18, 1978 reads thus :
t.' '--~·

"433 A. Restriction on powers of rem1ss10n or
'commutation in certain cases-Notwithstanding anything
contained in Section· 432, where a sentence of imprison-
ment for life is ·imposed on conviction of a person for an
F' offence for. which death is one of the punishments provided
" . .
by law, or where a sentence of death imposed on a person
has been commuted under section 433 into one of imprison-
ment for life, such person shall not be released from
·prison unless he had served at least fourteen years of impri-
G sonment".

------- Section 10-A of the Act empowers the State Government to
·transfer any offender who has been sentenced to imprisonment for
life· and who at the time of conviction was not less than 16 nor
more than 21 years of age from a prison to a Borstal School, if it
H is satisfied that it would be to his advantage•· as provided therein.
.. ANDaRA PRADESH v. V. RAVI (Va"katararniah, J.)

It is well known that persons who commit acts which are forbidden A
by law are ordinarily classified into groups on the basis of their
age for determining their liability unde' criminal law. Section 82 of
the Indian Penal Code declares that nothing is an offence which
is done by a child under seven years of age. Section 83 of the
Indian Penal Code provides that nothing is an offence which is
done by a child above seven years of age and under twelve, who B
has not attained sufficient maturity of understanding to judge of the
nature and consequences of his conduct on that occasion. Children
who are below 15 or 16 years of age are entitled to the protection
of certain beneficent provisions in the various Children's Acts in
force in different parts of the country. Section 360 of the Code
again provides for releasing on probation of good conduct or after c
admonition a person under twentyone years of age who is convi-
cted of an offence not punishable with death or imprisonment for
life, &nd no previous conviction is proved against him. The Act
f' with which we are concerned in this case is again one such law
which attempts to treat an adolescent offender in a humane way.
• The classification of offenders on the basis of age for purposes of D
criminal law is, therefore, beyond reproach.

The only argument pressed before us by the State Govern-
ment is that in view of the mandate of section 433 A of the Code,
any person who is sentenced for imprisonments for life for an Ji
offence for which death is one of the punishments . provided by law
cannot be released from prison unless he had served at least
' fourteen years of imprisonment even though by an order made
under section JO-A of the Act he has been detained in a Borstal
School. This contention obviously overlooks the words 'prison'
and 'imprisonment' in section 433 A of the Code and the effect of E
an order made by the State Government nnder section JO-A of the
Act read with section 8 thereof. Entry 4 of List II of the Seventh
Schedule to the Constitution which reads as "4. Prisons, refor-
matories, Borstal institutions and other imtitutions of a like nature,
' and persons detained therein ... " also makes a distinction between
a person and a Borstal institution. Section 433 A of the Code
G
refers to a person who is actually undergoing imprisonment. As
soon as an order is made under section JO-A of the Act in respect
• of a person who is sentenced to imprisonment for life and he is sent
to a Borstal School pursuant thereto, he ceases to be a prisoner
undergoing imprisonment. As observed earlier he would be a H
744 SUPREME COURT REPORTS (1985] 1 S.C.R. .-
A detenu in a Borstal School and the provisions of section 8 of the
Act will have to be given their full effect in his case also. Under
section 8 of the Act the person detained in a Borstal School can be
kept there for a maximum period of five years and in no case after
he has attained 23 years of age. 1 have already noticed that there is
no provision for sending him back to prison except section 14 of
B the Act which will not be applicable to a person against whom no
report is made by the Superintendent of a Borstal School as stated
therein. If section 14 of the Act is inapplicable there is no legal
way in which he can be sent back to prison to satisfy the require-
ments of section 433 A of the Code. Moreover, an anomalous
situation which arises in the case of a person sent to a Borstal
School under section 10-A of the Act is that if the period of deten-
tion in a Borstal School is not to be counted as the period of
c
imprisonment because detention is ordered in lieu of imprisonment
and beacuse Borstal School is not a prison then such person cannot
claim by way of credit the period of detention in a Borstal Sc!i ool
while computing the fourteen years of imprisonment mentioned
in section 433 A of the Code. If that is so, should he undergo an '
D extra period of imprisonment equivalent to the period of his deten-
tion to make good the deficiency to satisfy the requirements of that
section? That would hardly be a proper thing to be demanded
of him. •

Our attention is ,drawn to a decision of this Court in Maru
B Ram etc. etc. v. Union of .'ndia & Anr('J. I have gone through that
decision carefully. There the question which arose for considera- •
tion was whether after the coming into force of section 433 A of
the Code, it was open to the State Governments to reduce the
sentence of imprisonment for life imposed on a person convicred
of a capital offence to any period they liked on the basis
of the remission rules framed by the State Governments which
were traceable to section 432 or section 433 of the Code or
Acts which authorised the State Governments to modify the
sentence of imprisonment for life imposed by courts. Krishna Iyer, ,
J. who delivered the judgment on behalf of himself and Chandra-
G chud, CJ and Bhagwati, J. observed at pages 1217 ane 1218 thus:

''Sentencing is a judicial function but the executipn of
the sentence' after the court's pronouncement, is ordi1\arily

H o> [198ll s.c.R. 1196. I
ANDHRA PRADESH v. v. RAVI (Venkataramiah, J.) 745
a matter for the Executive under the Procedure Code,
going by Entry 2 in List III of the Seventh Schedule. A
Keeping aside the constitutional powers under Arts. 72
• and 161 which are 'untouchable' and 'unapproachable' for
any legislature, let us examine the law of sentencing,
remission and release. Once a sentence has been imposed,
the only way to terminate it before the stipulated term is
B
• by. action under ss. 432/433 01· Arts. 72/l 61. And if the
latter power under the Constitution is not invoked the only
source of salvation is the play of power" under ss. 432 and
433 (a) so far as a lifer is concerned. No release by
reduction or remission of sentence is possible under the

' corpus juris as it stands, in any other way. The legislative c
power of the State under Entry 4 of List JI, even if it be
stretched to soaping point, can deal only with Prisons and
Prisoners, never with truncation of judicial sentences.
Remission by way of reward or otherwise cannot our
down the sentence as such and cannot, let it be unmis-
takably understood, grant final exit passport for the pris- D
oner except by Government action under s. 432 (1). The
topic of Prisons and Prisoners does not cover release by
way of reduction of the sentence itself. That belongs to
Criminal Procedure in Entry 2 of List III although when
the sentence is for a fixed term and remission plus the
period undergone equal that term the prisoner may win his E
freedom. Any amount of remission to result in manu-
mission requires action under s. 432 (I), read with the
Remission Rules. That is why Parliament tracing the single
source of remission of sentence to s. 432. blocked it by the
non·obstante clause. No remission, however, long, can set F
the prisoner free at the instance of the State, before the
judicial sentence has run out, save by action under the
constitutional power or under s. 432. So read, the infe-
rence is inevitable, even if the contrary be argument ingeni-
ous, that s. 433 A achieves what it wants-arrest the release
.f of certain classes of 'lifers' before a certain period, by bloc- G
king s. 432. Arts. 72 and 161 are, of course, excluded from
this discussion i's being beyond any legislative power to
curb or confine". (Underlining by us.)
• Then the learned Judge considered the effect of section 5 of
the Code on the remission laws or rules. Section 5 of the Code
reads thus : H
146 SUPREME COURT REPORTS (1985) 1 S.C.R.
"5. Saving-Nothing contained in this Code shall, in
A the absence of a specific provision to the contrary, affect
any special or local law for the time being in force, or any
special jurisdiction or power conferred, or any special form
of procedure prescribed, by any other law for the time
being in force".

B lt was contended by the petitioners in that case that section 5 •
of the Code saved all remissions, short sentencing schemes as speci')l
and local laws and therefore, they would prevail over the Code in-
cluding section 433A. Repelling that contention, Justice Krishna
Iyer proceeded to observe thus :
c "The anatomy of this savings sections is simple, yet
subtle. Broadly speaking, there are three components to
be separated. Firstly, the Procedure Code generally governs
matters covered by it. Secondly, if a special or local law
exists covering the same area, this latter law will be saved
D and will prevail. The short-sentencing measures and remis-
sion schemes promulgated by the various States'l!re special
and local laws and must over-ride. Now comes the third
component wbich may be clinching. If there is a specific
provision to the contrary, then that will over-ride the special •
or local law. Is s. 433A a specific law contra? lfso, that
E will be the last word and will hold even against the special
or local law ............. A thing is specific if it is explicit.
lt need not be express. The anti-thesis is between 'specific'
and 'indefinite' or 'omnibus' and between 'implied' and
'express'. What is precise, exact, definite and explicit, is
specific. Sometimes, what is specific may also be special
F but yet they are distinct in semantics. From this angle, the
Criminal Procedure Code is a general Code. The remission
rules are special laws but s. 433A is a specific, explicit,
definite provision dealing with a particular situation or
narrow class of cases, as distinguished from the general run ;
of cases covered by s. 432 Cr. P.C. Section 433A picks
G out of a mass of imprisonment cases a specific class of life
imprisonment cases and subjects it explicitly to a parti-
cularised treatment. lt follows that s. 433A appiies · in
preference to any special or local law because s. 5 expressly '
declares that specific provisions, if any, to the contrary will
prevail over any special or local law. We have said enough
H
ANDHRA PPADESH v. v. RAVI (Vankataramiah, J.) 747
to make the point that 'specific' is specific enough and even
though 'special' to 'specific' is near allied, and thin parti- A
tion do their bounds divide' the two are different. Section
433A escapes the exclusion of s. 5."
A readin"g of the above passage shows that the Court was of
the view that in view of the non-obstante clause used in section
433A of the Code which exccluded the operation of section 432, the B
• remission rules which were traceable to section 432 could not prevail
over section 433A and section 5 of the Code could not, therefore,
be relied on by the petitioners.
Jn the instant case reliance is not being placed on any rules
traceable to section 432 of the Code or on a statute which empower- C
ed the State Government to reduce the period of imprisonment
imposed by the Court passed under the legislative power derived
from Entry 2 of List Ill of the Seventh Schedule to the Constitu-
tion but on an independent statute which specifically deals with the
• case of a small section of persons namely adolescent offenders
traceable to the legislative power derived from the expressions D
'prisons' and 'Borstal institutions' in Entry 4 of the State List. If
in the case of such offenders, the State Government makes an order
under section JO-A of the Act directing their detention in a Borstal
School, then they cease to be persons undergoing imprisonment for
life on heing convicted of an offence for which death is also pres-
E
cribed as one of the punishments but they will become detenus in
a Borstal School. The Act which is a local law, therefore, prevails
on all the provisions of the Code including section 433A of the Code
• as there is no provision which excludes the operation of the Act
which deals with Borstal institutions. Section 433A of the Code
was introduced not to set at naught provisions like section 10-A of F
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 hut had been sentenced
to imprisonment for life to short. periods like five to six years. That
is apparent from the notes in clauses found in the Bill under which G
section 433A of the Code was introduced. The relevant clause is
given below :
"Clause 33 : Section 432 contains provision relating
to powers of the appropriate _Government to suspend or H
748 SUPREME COURT REPORTS (1985] ! S.C.R.
remit sentences. The Joint Committee on the Indian
-
A
Penal Code (Amendment) Bill, 1972 had suggested the
insertion of a proviso to section 57 of the Indian Penal
Code to the effect that a person who has been sentenced to
death and whose death sentence has been commuted into
that of life imprisonment and persons who have been
sentenced to life imprisonment for a capital offence should
B
undergo actual imprisonment of 14 years in Jail. Since
this particular matter relates more appropriately to the
•
Criminal Procedure Code, a new section is being inserted
to cover the proviso inserted by the Joint Committee".
The Joint Committee's recommendation on section 57 of the
C Indian Penal Code which is referred to in the above clause was as
follows :
"Section 57 of the Code as proposed to be amended
had provided that in calculating fractions of terms of
punishment imprisonment for life should be reckoned as •
D equivalent to rigorous imprisonment for twenty years. In
thh connection attention of the Committee was brought to
the aspect that sometimes due to . grant of remission even
murderers sentenced or commuted lo life imprisonment
were released at the end of 5 to 6 years. The Committee •
feels that such a convict should not be released unless he
E has served at least fourteen years of imprisonment."

It is obvious that Parliament which was aware of laws like
the Act which were in force in the States did not choose to interfere
with them by enacting section 433A of the Code. If it intended to
nullify or modify such laws the non-obstante clause in section 433A
F ·would have been more comprehensive including all local statutes
enacted for the benefit of children and juvenile or adolescent offen-
ders. Considering the case in the light of the observations made
in Maru Ram's case (supra) I feel that section 10-A of the Act
remains unimpaired and it has to be given full effect even after the
G enactment of section 433A of the Code. The contrary view express-
ed by the Madras High Court in In re. GanapattPl cannot be accept-
ed as correct.
I am, therefore, of the view that section 433A of Code •
H (I) 1983 Criminal Law Journal 509
ANDHRA PRADESH v. v. RAVI (Venkataramiah, J.) 749
would not operate in respect of persons dealt with under section
A
10-A of the Act and that Parliament never intended while enacting
section 433A to deny the benefit available to adolescent offenders
under section 10-A of the Act. When once this conclusion is
reached, the argument that by reason of Article 254;of the Constitu-
tion, the Act should yield in favour of a later Central legislation
which is repugnant to the Act would not arise because there would B
be no such repugnancy at all. If section 433A of the Code is kept
out of the way, section 10-A of the Act should be interpreted in the
same way in which it was understood all along. So construed a
person who is detained under section 10-A of the Act in a Borstal
School would have to be released on his attaining 23 years of age.
My view receives support from the decision of this Court in Kunwar c
Bahadur & Ors. v. State of Uttar Pradesh(') which was a case under
the U.P. Borstal Act, 1938, the relevant part of which reads thus:
"It was then argued that so far as appellant Nand
• Kishore is concerned, he appears to be only 15 years at the
time when the occurrence took place and it appears that
wl!en he was sent to prison the Jailor referred him to the
D
Sewa Sadan under S. 7 of the United Provinces Borstal Act,
1938. Under this section where a prisoner is sentenced for
transportation i.e. life imprisonment and is below the age
of 21 years he should be sent to Borstal School where he
cannot be detained for more than five years. The law thus
E
contemplates that for such an offender the sentence of five
years will be equivalent even to a higher sentence of life
• imprisonment. It is not disputed before us that the appellant
Nand Kishore had already served 5 years in that institution
and has been released therefrom. The question, therefore,
of his surrendering to serve the remaining sentence does F
not arise. With this modification the appeal is dismissed."
In view of the foregoing, there is no ground to interfere with
the decision of the High Court. The appeal is, therefore, dismissed.
SABYASACHI MUKHARJ!, J. With great respect I agree with the
order proposed and also with the reasoning of my learned brother, G
Justice Venkataramiah. There is however some anomaly in Section
JOA of the Andhra Pradesh Borstal Schools Act, 1925. The said sec·
tion has been set out in the judgment. It empowers the State Govern·
• ment to 'transfer offenders sentenced to transportation to Borstal
(1) A.l.R. 1979 SC 1509 H
750 SUPREME COURT REPORTS (1985) ! S.C.R.
School'. It further provides that if the State Government is satisfied
A
that any offender who has been sentenced to transportation either
before or after the passing of the Madras Borstal Schools (Amend-
ment) Act, 1939, and who at the time of conviction was not less than
16years, nor more than 21 years, might with advantage be detained
in Borstal School, direct that such offender shall be transferred to
B
a Borstal School, 'there to serve the whole or any part of the un-
expired residue of the sentence'. (emphasis supplied). The section
further stipulates that the provisions of the said Act should apply
to such offender 'as if he had been originally sentenced to.'deteu-
tion in a Borstal School'. In the instant case, by the order dated
12th September, 198(1, the State Government had directed that the
c petitioner should be detained in a Borstal School 'to serve the un-
expired portion of the sentence till he attains the age of 23 '. My
learned brother has, with the aid of the principle enunciated by •
Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough
Council(') deemed that the original sentence of transferring the
petitioner to a Borstal School has been passed by the Court at the
D time of imposing sentence originally. But In fact in passing the
order under Section JOA expression used by the State Government
is that the person concerned should be detained in 'Borstal School'
to serve the unexpired portion of the sentence till he attains the age
of 23 years. So the sentence actually passed by the enabling sec-
tion by the State Government directs the detenu'to serve the un-
E
expired portion of the sentence'. Therefore we have to deem as
if the sentence was passed by the court at the time of the passing
of the original sentence by the court. In a matter of this nature,
the statute should be more specific and in that view of the matter,
the Government should consider the question of either altering the
language of Section JOA of the Act or be more specific while pas-
sing any orders under Section !OA of the Act.

With these observations I respectfully agree with the decision
of my learned brother.
G

H.S.K. Appeal dismissed.
•
ff (I) [1952) Appeal Cases 109 at p. 132.