Supreme Court of India
SUBHASH CHANDversusSTATE OF HARYANA AND ORS.
- Citation
- 1988 INSC 2
- Decided
- 11 January 1988
- Disposal
- Dismissed
Holding
The Punjab Borstal Act, 1926 does not apply to offences punishable with death, such as murder under IPC s.302, and therefore the petitioner is not entitled to its benefit.
Summary
Subhash Chand, an adolescent convicted of murder under IPC s.302 and sentenced to life imprisonment, filed a writ petition under Article 32 seeking detention under the Punjab Borstal Act, 1926, relying on Hava Singh v. State of Haryana. The State opposed, arguing that the Act does not apply to offences punishable with death. The Supreme Court examined the definition of "offence" in s.2(4)(i)(a) of the Punjab Borstal Act, which expressly excludes offences punishable with death. Since murder under s.302 carries the death penalty as an alternative, it falls within the exclusion, rendering the Act inapplicable. Consequently, the Court held that the petitioner is not entitled to the benefit of the Borstal Act and dismissed the writ petition.
Issues considered
- Whether an adolescent convicted of murder (IPC s.302) and sentenced to life imprisonment is eligible for detention under the Punjab Borstal Act, 1926.
Legislation cited
- Code of Criminal Procedure, 1898s. 562(1)
- Indian Penal Code, 1860s. 302
- Punjab Borstal Act, 1926s. 2(4)(i)(a), s. 5
Subjects
Punjab Borstal Actadolescent offendermurderIPC 302detentionlife imprisonmentArticle 32writ petitiondeath penaltyjuvenile justice
Judgment
A SUBHASH CHAND
v.
{
STATE OF HARYANA AND ORS.
JANUARY I I, 1988.
B
[RANGANATH MISRA, B.C. RAY AND
K.JAGANNATHA SHETTY, JJ.]
Punjab Borstal Act, 1926: ss. 5 and 2(4)(i)(a)-Adolescent con-
victed for offence of murder and sentenced to imprisonment for life-;
Whether entitled to the benefit of the Act.
c
Section S of the Punjab Borstal Act, 1926 empowers courts to pass
a sentence of detention in a Borstal institution in the case of male
persons less than twenty one years of age convicted of an offence, in lieu
of transportation or rigorous imprisonment, Section 2(4)(i)(a) of the Act
D which defines 'offence' takes in offences other than an offence punish-
able with death,
In his writ petition under Article 32 of the Constitution, the
petitioner who has been convicted for the offence of murder and
sentenced to imprisonment for life claimed benefit of the Punjab Borstal
E Act relying on Hava Singh v. State of Haryana, AIR 1987 SC 2001. The
State contested his claim. •
Dismissing the writ petition.
HELD: I. I The Punjab Borstal Act does not have application to :r
F an offence punishable under s. 302 I.P.C. [561F-G]
1.2 What is excepted in the definition of 'offence' ins. 2(4)(i)(a)
of the Act is an offence which is punishable with death. One of the
punishments under s. 302 1,P.C. for the offence of murder is death,
and. therefore, the offence of murder would be covered with s. 2(4)(i)(a)
G of the Act and to such a conviction the Punjab Borstal Act would have
no application. [560 F-G]
1.3 The petitioner is, therefore, not entitled to the benefit of the
i
Punjab Borstal Act as he has been sentenced to imprisonment for life for
the offence of murder punishable under s. 302 I.P.C. for which the
H sentence of death is prescribed as an alternate. [561 G I
556
SUBHASH CHAND v. STATE OF HARYANA [MISRA, J.J 557
'f 1.4 In Hava Singh's, case the definition of offence was not placed A
for consideration before the court and, therefore, the conclusion which
has been reached is not correct. l561FI
Emperor v. Mt. Janki & Anr., AIR 1932 Nag. 130; King Emperor
v. Nga San Htwa & Ors., AIR 1927 Rangoon 205; Chetti v. State of
Madhya Pradesh, AIR 1959 MP 291; Emperor v. Bahawati, AIR 1928 B
Labore 920; State v. Sheo Shankar, AIR 1956 All. 326; Public Pro-
secutor of Madras v. Paneswar Rao, AIR 1946 Mad. 178; Sarkar v.
Jalam Singh, AIR 1950 Raj. 28 and Narauji Premji v. Emperor, AIR
1928 Born ..244, referred to.
Hava Singh v. State of Haryana, AIR 1987 SC 2001 overruled. C
r· CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(CRL) No. 745 of 1987.
(Under Article 32 of the Constitution of India).
D
J.M. Khanna for the Petitioner
Ravindra Bana, G. Venkatesh Rao and C.V. Sobba Rao for the
Respondents.
E
• The following Order of the Court was delivered:
ORDER
•' 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 F
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.
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 G
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
H
petitioner was admittedly adolescent at the time of his con-
558 SUPREME COURT REPORTS · [1988] 2 S.C.R.
viction was sent to Borstal Institute at Hissar. Subse- )/
A
quently, 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
B mature age, and their subsequent training in separate in-
stitutions. 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
c 2 defines detained as detained in and detention as detention
in a Borstal Institution. Section 5 of the said Act which is '-i
very vital for the purpose of decision of this case is quoted
hereinbelow:
D '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 sessions, a Magistrate specially
E empowered under section 30 of the Code of Criminal "
Procedure, 1398, or a Judicial Magistrate of the first
class, O' is ordered to give security for good be-
haviour and fails to give such security, and when by ~
reason of this criminal habits or tendencies or associa-
tions with persons of bad character it is expedient in Y
F 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 im-
prisonment, pass an order of detention for a term
which shall not be less than two years and shall n9t
exceed seven years when the order is passed by a
G court of sessions 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 't
three years, when the order is passed by a judicial
magistrate of the first class not so empowered.
H (2}
SUBHASH CHAND v. STATE OF HARYANA !MISRA, J.J 559
(3)
A
This court further stated:
"The petitioner who was adolescent admittedly being
less than twenty-one years of age at the time of his convic- B
tion 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 Bors-
tal Act, 1926. On his attaining the age of about twenty-one
years he was transferred back to the Jail. There is no provi-
sion except section 20 under the said Act for transferring
back an adolescent convict on his attaining the age of C
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 incorrigi-
r bles and observed: D
"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 Govern-
ment may direct and also to order transfer of the inmate to E
_.. any jail in Punjab in order to complete the said term of
imprisomnent when such an inmate is reported to be incor-
rigible 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."
F
The Court then stated:
"This Court while considering an indentical case in
the State of Andhra Pradesh v. Vallabhapuram Ravi, AIR
1985 SC 870 has observed that a person detained in a Bors-
tal School under section 10-A has to be released after he G
has served the full term of 5 years of detention or on his
completing 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 provicling for deten-
tion of young offenders in Bo-:stal School for the purpose of
reformation and rehabilitation of such offenders'. It is to be H
560 SUPREME COURT REPORTS [1988] 2 S.C.R.
A noted in this connection that sentence of detention is pas-
sed in lieu of sentence of imprisonment which may have
! y
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.
B 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 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 impris-
c onment for life imposed on persons who had been con- +
victed of capital offences but had been sentenced to impris- '
onment for life to short periods like five to six years."
Under the Punjab Act, 'offence' has been defined in section 2(4)
D tomean-
"an offence punishable with transportation or rigor-
ous imprisonment under the Indian Penal Code other
than-
-
E (a) an offence punishable with death;."
Hava Singh's case 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 lo"·
Pradesh Borstal Schools Act, 1925, does not have the definition of
F 'offence' and there is no exclusion as provided in the Punjab Act. .~
What is excepted in the definition is an offence which is punish-
able with death. Section 302 of the Indian Penal Code provides:
"Whoever commits murder shall be punished with
G death or imprisoment for life and shall also be liable to
fine."
One of the punishments for the offence of murder is death·and, there-
fore, 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
H would have no application. Support for such a view is available from
SUBHASH CHAND v. STAIB OF HARYANA [MISRA, J.[ 561
several decisions of different High Courts. Section 562(1) of the Code A
of Criminal Procedure of 1898 as amended in 1923 brought in the
phrase:
"Punishable with death or transportation for life".
In Emperor v. Mt. Janki & Anr., AIR 1932 Nag. 130 that phrase was B
interpreted disjunctively and women convicted of an offence for which
·transportation for life was one of the punishments provided were held
- ineligible for release on probation under section 562. It was pointed
out that the words 'death or transportation for life' must be read as
referring to offences the penalty for which provided by the Penal Code
contains either death or transportation for life as one Of the punish- c
ments awarded and not necessarily both. Reliance was placed on a full
Bench decision of the Rangoon High Court in King Emperor v. Nga
San Htwa & Ors., AIR 1927 Rangoon 205 which was dealing with a
similar phrase occurring in section 497 of the old Code. A Division
Bench of the Madhya Pradesh High Court in Chetti v. State of Madhya
Pradesh, AIR 1959 MP 241 also took the same view. In Emperor v. D
' Bahawati, AIR 1928 Lahore 920 it was held that as one of the alterna-
tive punishments for that offence under section 307 of the Penal Code,
is transportation for life, it is obvious that section 562 is not applicable
and the accused must be sentenced to rigorous imprisonment and fine.
The Allahabad High Court in the case of State v. Sheo Shanker, AIR
1956 All. 326, the Madras High Court in Public Prosecutor of Madras E
v. Paneswar Rao, AIR 1946 Mad. 178, the Rajasthan High Court in
Sarkar v. Jalam Singh, AIR 1950 Raj, 28 and the Bombay High Court
in Naranji Premji v. Emperor, AIR 1928 Born. 244 have taken the
same view.
In Hava Singh's case the definition was not placed for considera- F
tion before the Court and, therefore, the conclusion which has been
reached is not correct. The Punjab Borstal Act does not have applica-
tion to an offence punishable under section 302 IPC. therefore, the
conclusion in Hava Singh's case is not correct. The petitioner is not
entitled to the benefit of the Punjab Borstal Act as he has been
sentenced to imprisonment for life for the offence of murder punish- G
able under section 302 IPC for which the sentence of death is
prescribed as an alternate.
The writ petit!on is dismissed.
P.S.S. Petition dismissed.
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