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Friday, September 20, 2013

Tamil Nadu Borstal Schools Act, 1925 = since on the date of his conviction the Petitioner was over 21 years old, and therefore, was not a juvenile under the erstwhile or current statutory dispensation as per the wisdom of the Legislature, there was no impediment or legal impropriety in his having to undergo his sentence in an ordinary jail; on the contrary being an adult it would not have been advisable for him to be detained in a Borstal School as he may detrimentally influence younger persons. The position would have been totally different had he, on the date of his conviction, been between ages of 16 and 21 years as he would then have required to be placed in a Borstal School. Even if this infraction had occurred, the Petitioner would not be entitled to bail today solely on that score. In any event, the entire argument is totally academic since on the present date the Petitioner is over 30 years of age and on the date of his conviction for the commission of the offence, the Petitioner was over 21 years of age. The Borstal Schools Act merely concerns detention of a convict, whereas the Juvenile Justice Act deals with detention as also the punishment or sentence that can be imposed. 6. Accordingly the Application for bail, on the grounds pressed before us, is devoid of merit and is dismissed.

 punishable   http://judis.nic.in/supremecourt/imgst.aspx?filename=40792                                                             
 REPORTABLE


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                           CRL.M.P. NO.853 OF 2013
                                     IN
                       CRIMINAL APPEAL NO.811 OF 2011




      Nagoor Pichai @ Badusha                           …..Petitioner


            Versus


      State Tr. Sub-Inspector of Police                       …..Respondent










                               J U D G M E N T




      VIKRAMAJIT SEN, J.


      1.    The only question agitated before us by learned  Senior  Counsel
      for the Petitioner is  that  the  provisions  of  Tamil  Nadu  Borstal
      Schools Act,  1925  (hereinafter  ‘Borstal  Schools  Act’)  have  been
      ignored by the Courts below.  It is evident  from  a  perusal  of  the
      impugned judgment that the applicability of the said statute  has  not
      been raised in either  of  the  Courts  below.   Briefly  stated,  the
      Petitioner has been sentenced to life imprisonment under  Section  302
      of the Indian Penal Code for the  murder  of  his  paternal  uncle  on
      12.8.1999.  It is not disputed before us that the Petitioner’s date of
      birth is 29.11.1979 thereby making him 19 years 8 months of age on the
      date of the commission of the  murder.   The  Petitioner  having  been
      found guilty has been sentenced to life imprisonment vide judgment  of
      the Trial Court pronounced on 6.9.2002, on which date  the  Petitioner
      was 22 years 9 months old.  It  is  contended  before  us  by  learned
      Senior Counsel that the  Courts  below  erred  in  not  directing  the
      detention of the Petitioner in a Borstal School.
      2.       The  Borstal  Schools  Act  does  not  contemplate  the  term
      ‘juvenile’ at all.  However, the definition of  ‘adolescent  offender’
      is contained in Section 2(1) of the said Act and reads thus :
           “ ‘Adolescent offender’ means any person who has been  convicted
           of any offence punishable with imprisonment or who  having  been
           ordered to give security  under  section  118  of  the  Code  of
           Criminal Procedure has failed to do so and who at  the  time  of
           such conviction or failure to give security is not less than  16
           in the case of a boy and not less than 18 in the case of a girl,
           but not more than 21 years of age in either case.”


      We should clarify that Section 118 corresponds to Section 110  of  the
      current 1973 Cr.P.C.  The age of a juvenile prior to the  present  Act
      was 16 years and a legal  anachronism  palpably  exists  requiring  an
      amendment to the Borstal Schools Act substituting the age of 16  years
      by 18 years for a boy.  ‘Adolescent’ is seldom considered in any legal
      dictionary, whereas juvenile/minor/child is ubiquitously  dealt  with.
      Adolescence is the penumbral period (presently between 18 years and 23
      years) when, for good reason, a person is not perceived and treated as
      an adult for the purposes of incarceration.  The Borstal School  is  a
      halfway house intended to prepare  a  person  for  imprisonment  in  a
      regular/ordinary  jail.   Section  8  of  the  Borstal   Schools   Act
      stipulates that a convict cannot remain in a Borstal School  beyond  a
      period of five years or his attaining the age of 23 years.  We  should
      immediately note the distinction, as  the  relevant  statutes  ordain,
      between  an  ‘adolescent’  and  a  ‘juvenile’.   ‘Juvenile’  and   its
      statutory synonym ‘child’ (and now even ‘minor’) has been  defined  in
      the Juvenile Justice (Care and Protection of Children) Act, 2000  [for
      short, ‘Juvenile  Justice  Act’]  simply  as  a  person  who  has  not
      completed eighteen years of age.  The repealed  Juvenile  Justice  Act
      treated any person below the age of sixteen years as a juvenile and it
      is this age which is contemplated in  the  Borstal  Schools  Act.   By
      virtue, therefore, of Section 8 of the Juvenile Justice  Act,  Special
      Homes have to be established for the ‘reception and rehabilitation  of
      a juvenile in conflict with law’.  Again, it is this Act in  terms  of
      Section 16, that places an embargo on the imposition of  any  sentence
      of death or imprisonment for life.
      3.   In the context  of  the  arguments  addressed  before  us  it  is
      important to emphasise that it is the date of conviction that  assumes
      singular significance.  By  virtue  of  the  statutory  definition  of
      ‘adolescent offender’, on the date of the conviction  he  should  have
      been not less than 16 years  but  not  more  than  21  years  of  age.
      Although this question does not arise directly before us, the date  of
      juvenility was less than 16 years of age and,  therefore,  a  plea  on
      this ground had not been raised since the Petitioner was over 19 years
      on the date of occurrence of the unfortunate event or the  conviction.
      Even in the postulation of the Juvenile  Justice  Act,  no  relief  is
      available even retrospectively to the Petitioner.  Under Section 8  of
      the Borstal Schools Act, the Court is empowered to pass a sentence  of
      detention in the Borstal School when it appears  to  it  expedient  to
      pass such a sentence for a term which shall not be less than two years
      but  shall  not  exceed  five  years.   The  rationale  behind   these
      provisions is obviously to insulate a young person  or  adolescent  in
      contradistinction to a  juvenile,  during  his  waning  impressionable
      years, from the pernicious influence of hardened  criminals;  and,  on
      the other hand, to  similarly  insulate  other  persons  sentenced  to
      detention in Borstal Schools from the influence of convicts  who  have
      attained the age of 23 years or who have been detained  in  a  Borstal
      School for five years.
      4.    Learned Senior Counsel has drawn our attention to Yaduraj  Singh
      v. State of U.P. (1976) 4 SCC 310 and C. Elumalai v.  State  of  Tamil
      Nadu (1984) 4 SCC 539 both of which have no  relevance  to  the  issue
      raised before us,  that too for the first time.  In Yaduraj Singh this
      Court had emphasised that the plea under the  Probation  of  Offenders
      Act had not been raised in any of the Courts below and whilst it could
      nevertheless  be  pressed,   such   a   course   invariably   presents
      difficulties in comprehensively considering the plea  because  of  the
      absence of any credible evidence to determine the  juvenility  of  the
      person concerned.  We hasten to clarify that we have not  declined  to
      entertain the plea on the ground that it has not been raised in any of
      the Courts below, therefore rendering Yaduraj Singh of  no  assistance
      to the Petitioner.  The ratio of Elumalai follows upon a bare  reading
      of Sections 8 and 10  of  the  Borstal  Schools  Act  which  we  shall
      reproduce so as to make our judgment holistic and self contained :
                 “8. Power of Court to pass sentence of detention in Borstal
           School. (1) 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  the
           persons of bad character, be subject to detention for such  term
           and under  such  instruction  and  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 a  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.
                 (2) Before passing a sentence of  detention  in  a  Borstal
           School under sub-section (1), the Court
                 (a) shall call for a report from the Probation  Officer  of
           the area in which the offender permanently resided at  the  time
           when he committed the offence and shall consider such report,
                 (b) shall consider any other report or representation which
           may be made to it, and
                 (c) may make such further inquiry as it may think fit,
           as to suitability of the case for treatment in a Borstal  school
           and shall be satisfied that the character, state of  health  and
           mental condition of the offender and the other circumstances  of
           the case are such that the offender is likely to profit by  such
           instruction and discipline as aforesaid.
                 (3) The report of a Probation Officer referred to  in  sub-
           section (2) shall be treated as confidential.
                 Provided  that  the  Court  may,  if  it  so  thinks  fit,
           communicate the substance thereof to the offender and  may  give
           him an opportunity of producing such evidence as may be relevant
           to the matter stated in the report.
                 10. Power of Inspector-General  to  transfer  prisoners  to
           Borstal Schools.-The Inspector General  may,  subject  to  rules
           made by the State Government, if satisfied that  any  adolescent
           offender undergoing imprisonment in consequence  of  a  sentence
           passed either before or after the passing of this Act might with
           advantage be detained in a Borstal school, there  to  serve  the
           whole or any part of the unexpired residue of his sentence.  The
           provisions of this Act shall thereupon apply to such  person  as
           if he had been originally sentenced to detention  in  a  Borstal
           school.”
      5.    So far as the facts in the present Appeal are  concerned,
since
      on the date of his conviction the Petitioner was over  21  years  old,
      and therefore, was not a  juvenile  under  the  erstwhile  or  current
      statutory dispensation as per the wisdom of the Legislature, there was
      no impediment or legal  impropriety  in  his  having  to  undergo  his
      sentence in an ordinary jail; 
on the contrary being an adult it  would
      not have been advisable for him to be detained in a Borstal School  as
      he may detrimentally influence younger persons.   
The  position  would
      have been totally different had he, on the  date  of  his  conviction,
      been between ages of 16 and 21 years as he would then have required to
      be placed in a Borstal School.  
Even if this infraction had  occurred,
      the Petitioner would not be entitled to  bail  today  solely  on  that
      score.  
In any event, the entire argument is totally academic since on
      the present date the Petitioner is over 30 years of  age  and  on  the
      date of  his  conviction  for  the  commission  of  the  offence,  the
      Petitioner was over 21 years of age.  
The Borstal Schools  Act  merely
      concerns detention of a convict,  whereas  the  Juvenile  Justice  Act
      deals with detention as also the punishment or sentence  that  can  be
      imposed.
      6.    Accordingly the Application for bail,  on  the  grounds  pressed
      before us, is devoid of merit and is dismissed.



      .............................................J.
                                             [T.S. THAKUR]





      .............................................J.
                                             [VIKRAMAJIT SEN]
      New Delhi
      September 19, 2013.

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