Supreme Court of India
SUBE SINGH & ORS. ETC. ETC.versusSTATE OF HARYANA & ORS.
- Citation
- 1988 INSC 292
- Decided
- 21 September 1988
- Disposal
- Dismissed
- Bench
- RANGANATH MISRA
Holding
The Punjab Borstal Act, 1926 does not apply to offences punishable under Section 302 of the Indian Penal Code.
Summary
The petitioners, adolescents under twenty‑one, were convicted of murder under Section 302 of the Indian Penal Code and sentenced to life imprisonment. They sought relief under Section 5 of the Punjab Borstal Act, 1926, which allows detention in a Borstal Institution in lieu of transportation or rigorous imprisonment for certain offences. The Court examined the definition of "offence" in Section 2(4) of the Act, which excludes offences punishable with death. Although the petitioners received life imprisonment, murder remains an offence punishable with death under the IPC. Consequently, the Court held that the Punjab Borstal Act does not apply to offences under Section 302, and the petitioners were not entitled to its benefit. The writ petitions were dismissed.
Issues considered
- Whether Section 5 of the Punjab Borstal Act, 1926 applies to an adolescent convicted of murder under Section 302 IPC and sentenced to life imprisonment
- Whether the definition of "offence" in Section 2(4) of the Punjab Borstal Act excludes offences punishable with death even if the court imposes life imprisonment
Legislation cited
- Indian Penal Code, 1860s. 302
- Punjab Borstal Act, 1926s. 2(4), s. 5
Subjects
Borstal Actadolescent offenderSection 302 IPClife imprisonmentpunishable with deathstatutory interpretationjuvenile justice
Judgment
<l>
SUBE SINGH & ORS. ETC. ETC. A
v.
STATE OF HARYANA & ORS.
SEPTEMBER 21, 1988
[RANGANATH MISRA AND M.N. VENKATACHALIAH, JJ.] B
Punjab Borstal Act, 1926: Ss. 5 and 2(4)-Adolescents convicted
for offence of murder and sentenced to imprisonment for life under
s. 302 !PC-Whether entitled to benefit of s. 5 of the Act.
Section S of the Punjab Borstal Act, 1926 empowers courts to pass C
a sentence of detention in a Borstal Institution In the case of male
persons less than twenty one years of age convicted of an otTence
punishable under the Indian Penal Code, In lieu of passing a sentence of
transportation or rigorous imprisonment. Section 2(4) of the Act which
defines 'offence' takes in offences other than an offence punishable with
1 death. D
The petitioners who have been convicted for the offence punish·
able under s. 302 of the Indian Penal Code and have been sentenced to
! life imprisonment, claim entitlement to the benefit of s. S of the Act.
Dismissing the writ petitions, E
HELD: The Punjab Borstal Act, 1926 does not have application
to an offence punishable under s. 302 of the Indian Penal Code. [l43GJ
The offence of murder is punishable with death even though the
punishment awarded is not death but imprisonment for life. [l44Hf F
'Punishable' in s. 2(4) of the Act carries a meaning 'liable to be
punished'. Since the offence under s. 302 is punishable with death, the
provisions of the Punjab Borstal Act would not cover an offence under
s. 302 of I.P.C. and the benefit would not, therefore, be available to an
accused convicted for the offence under s. 302 I.P.C. [l45E] G
Subhash Chand v. State of Haryana· & Ors., [1988] l SCC 717
applied; Hava Singh v. State of Haryana & Anr., [1987] 4 SCC 207;
State of Andhra Pradesh v. Vallabhapuram Ravi, [1984] 4 SCC 410 and
Kunwar Bahadur & Ors. v. State of Uttar Pradesh, [1980] (Supp.) SCC
339, distinguished. H
141.
142 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.
A ORIGINAL JURISDICTION: Writ Petition (Cr!.) No. 648 of
1987 etc. etc.
(Under Article 32 of the Constitution of India)
D.S. Tewatia, Mukul Mudgal, Rakesh Khanna, P.K. Jain, R.P.
Singh, C.V.S. Rao, Prem Malhotra, S.K. Sabharwal, Mahabir Singh,
B Mrs. Urmila Kapoor and N. Sudhakaran for the appearing parties.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. These are a batch of writ petitions
under Article 32 of the Constitution raising the common claim of enti-
tlement to the benefit of Section 5 of the Punjab Borstal Act, 1926.
c
In each of these writ petitions, the petitioner has been convicted
for the offence punishable under Section 302 of the Indian Penal Code
and has been sentenced to life imprisonment. The State of Haryana
has challenged the claim of the petitioner in each of these writ
O petitions.
Learned counsel for the petitioners has relied upon the decision
of this Court in Hava Singh v. State of Haryana & Anr., [1987] 4 SCC
207 in support of the claim advanced in the writ petitions. A two Judge
Bench of this Court in that case referred to Section 5 of the Act and
E held:
"On a conspectus of the aforesaid decision as well as
on a consideration of the facts and circumstances the only
conclusion follows that the petitioner who has already
undergone actual imprisonment for seven years is entitled
F to be released from detention and from imprisonment.
Paragraph 516-B of the Punjab Jail Manual is not appli-
cable in this case as the petitioner who was an adolescent
convict below twenty-one years of age was sent to the Bors-
tal Institute at Hissar for detention in accordance with the
provisions of Section 5 of the Pun jab Borstal Act, 1926. He
being convicted by the Sessions Judge the maximum period
of detention as prescribed by the Act is ·seven years. We
have already said hereinbefore that such an inmate of the
Borstal Institute cannot be transferred to jail on the ground
that he has attained the age of twenty-one years as the said
Act does not provide for the same. The only provision for
transfer to jail is in the case of incorrigible inmate or
·:,...
SUBE SINGH v. STATE OF HARYANA [MISRA, J.J 143
inmates convicted of major Borstal Institution offence."
A
Reliance· was also placed by learned counsel for the petitioners
on another two-Judge Bench decision of this Court in the case of State
of Andhra Pradesh v. Vallabhapuram Ravi, [1984] 4 SCC 410. That
was a case under the Andhra Pradesh Borstal Schools Act, 1925 (5 of
1926) and the question for consideration was the same as here with B
reference to the provision of Section 8 of that Act. The two-Judge
Bench held that the provisions of the Borstal Schools Act applied to
the offence punishable under Section 302 of the Indian Penal Code.
Both these cases were referred to in Subhash Chand v. State of
Haryana & Ors., [1988] 1 SCC 717 by a three-Judge Bench. It referred
to Hava Singh's case (supra) at length. The three-Judge Bench in· its
c
judgment referred to the definition of 'offence' under Section 2(4) of
the Punjab Borstal Act which defined 'offence' to mean-
"an offence punishable with transportation or rigorous
imprisonment under the Indian Penal Code other than- D
(a) an offence punishable with death;"
The Court found that Section 302 of the Indian Penal Code provides:
"whoever commits murder shall be punished with death, or E
imprisonment for life, and shall also bdiable to fine" and
proceeded to say again "one of the punishments for the
offence of murder to death and, therefore, the offence of
murder would be covered within Section 2(4)(i)(a) of the
Punjab Act and to such a conviction the Punjab Borstal Act
would have no application. Support for such a view is avail' F
able from several decisions of different High Courts".
The Court ultimately held:
"In Hava Singh's case the definition was not placed for
consideration before the Court and, therefore, the conclu- G
sion which has been reached is not correct: The Punjab
Borstal Act does not have application to an offence punish-
able under Section 302 of IPC".
This being a decision of a larger Bench we are bound by it.
H
144 SUPREME COURT REPORTS [ 1988} Supp. 3 S.C.R.
A In the Webster's Third New International Dictionary the fol19w-
ing meaning has been given to the word 'punishable'-
"Deserving of, or liable to, punishment: capable of being
punished by law or right". '
B Aiyar's the Law Lexicon (Reprint Edition 1987) gives the mean-
ing of 'punishable' thus:
" "The-word 'punishable' as used in statutes which declare
that certain offences are punishable in a certain way, means
liable to be punished in the way designated." ,
c
In Bouvier's Law Dictionary, the meaning of the word 'punish-
able' has ·been· given as 'liable to punishment'. In 'Words and
Phrases-Permanent Edition', the following meaning has been given:
"The word 'punishable' in a statute stating that a crime is
D punish·able by a designated penalty or term of years in the
state prison limits the penalty or term of years to the
amount or term of years stated in the statute." I
The word 'punishable' is ordinarily defined as deserving of or
I
I
capable or liable to punishment, punishable within statute providing '
E that defendant may have ten peremptory challenges if offence
charged is 'punishable' with death or by life imprisonment; means
cleserving of or liable to punishment; capable of being punished by law
or right, may be punished, or liable to be punished, and not must be
punished.
(
F 'Corpus Juris Secundum' gives the meaning as: I
"Deserving of, or liable to, punishment; capable of being
punished by law or right; said of persons of offences: The
meaning of the term is not 'must be punished', but 'may be
' punished', or 'liable to be punished'.
G
In the absence of a definition of 'punishable' we have referred to these
for gathering the exact meaning of the word. In the sense given to the
word, as above, there can be no doubt that the offence of murder is ('
punishable with death even though the punishment awarded is not
death but imprisonment for life.
H
~~.-
SUBE SINGH v. STATE OF HARYANA !MISRA, J.] 145
An earlier decision of this Court in Kunwar Bahadur & Ors. v. A
State of Uttar Pradesh, [1980] Supp. SCC 339, where a two-Judge
Bench dealt with the provisions of the United Provinces Borstal Act 7
of 1938 was also reli~d upon. The judgment is a short one. Detailed
reference to the 'provisions of the United Provinces Act has not been
made but Section 7 of the Act was referred to and it was observed:
B
"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
contemplates that for such an offender the sentence of five
years will be equivalent even to a higher sentence of life c
prisonment''.
Obviously in the United Provinces Act, there is no definition of
'offence' as available in the Punjab Act. Therefore, the decision in
Kunwat Bahadur's case (supra) is not really material for our purpose.
D
'Punishable' carries a meaning 'liable to be punished' as indi-
cated by the three-Judge Bench. Since the offence under Section 302 is
punishable with death, the provisions of the Punjab Borstal Act would
not cover an offence under Section 302 of IPC and the benefit would
not therefore, be available to an accused convicted for the offence
under Section 302 IPC. E
During the bearing of the matters learned counsel for the
petitioners had maintained that the provisions of the Punjab Act
should be suitably amended to bring about uniformity in the law on the
subject. This is a matter for the State and the Legislature and it is for
them to consider whether the provision should be suitably amended F
keeping the modern concept of punishment and treatment of adoles-
cents in view.
Each of the writ petitions is dismissed. There would be no order
for costs.
G
P.S.S. Petitions dismissed.
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