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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.
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.
