N Criminal Appeal 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 WP No 6601 of 1983 P Ram Reddy G Narasimhlu for the Appellant
A Subba Rao for the Respondent
The following Judgments were delivered VENKATARAMIAH 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 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 period of fourteen years
733 The respondent Vallabhapuram Ravi was born or April 28 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 of Andhra Pradesh on being satisfied that it would be to the advantage of the respondent if he was transferred to a Borstal School made an order under section 10 A of the Act in GO Rt
No 2394 Home Prisons B Department dated September 12 1980 directing that he should be detained in a Borstal School to serve the unexpired portion of the sentence till he attained the age of 23 years
Accordingly 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 Act
Since he was not released on his attaining 23 years of age on April 28 1983 in accordance with the decision of the High Court of Andhra Pradesh in Bondili Jagannath Singh vs 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 and after hearing the State Government passed an order on November 291983 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
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 20000 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 734 influence 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 Acts of 19481961 and 1972 and the Children and Young Persons Act 1969 and each of them made detailed provisions for dealing with young or adolescent offenders
The principle underlying these laws was that if children or adolescents found to be guilty of offences by criminal courts were in lieu of ordinary sentence of imprisonment kept in a special form of detention in a place other than a prison of which the purpose was to develop mentally physically and morally all inmates by giving them 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 degeneracy or had social environment that it is the duty of the State at least to try to effect a cure and not to class the offender offhand 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 Kent England where the early experiments on boys between the ages of 16 and 21 were carried out in an old convict prison before the passing of the above mentioned Acts of 1908
The Borstal System subsequently 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 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 ie sections 2 1 and 2 8 and 10 A are extracted below for ready reference 2
In this Act unless there is anything repugnant in the subject or context 1 Adolescent offender means any person who has been convicted of any offence punishable with imprisonment or who having been ordered to give security under 735 section 106 or 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 nor more than 21 years of age 2 Borstal School is a corrective institution wherein adolescent offenders whilst detained in pursuance of this Act are given such industrial training and other instruction and are subject to such disciplinary and moral influences as will conduce to their reformation and the prevention of crime   8
Power of Court to pass sentences of detention in 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 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 made by the probation officer of the area in which the offender permanently resided at the time 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 condition of the offender and other circumstances of the case are such that the offender is likely to profit by such instruction and discipline as aforesaid 10 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 736 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 transferred to a Borstal School there to serve 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 notwithstanding that the sentence of transportation has been subsequently 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 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 association 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 substitution of the sentence of imprisonment 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
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 amendment 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 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 imprisonment which may have been passed
Hence the detention ordered under the above provision is not imprisonment and the Borstal School where the adolescent offender is detained is not a prison
737 This is also the view taken by Beaumont CJ in Emperor vs Lakshman Shivram which was a case arising under the Bombay Borstal Schools Act 1929
Merely because section 5 of the Act has made the and Prisoners Act 1900 applicable 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 imprisonment 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 10 A of the Act which was introduced by the Madras Borstal Schools Amendment Act 1939 Madras Act XIII of 1939 provides that the State Government if satisfied that any offender who has been sentenced to imprisonment 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 offender 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 10 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 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 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 directed to sent to a Borstal School before the commencement of the Madras Borstal School Amendment Act 1966 to be 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 exceeding 738 a such unexpired residue or b the maximum period of imprisonment fixed for the 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 of Criminal Procedure 1898 whichever is shortest While construing section 14 of the Act we may omit the 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 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 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 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 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 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 10 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 this the only provision in the Act which authorises the State Government to shift a person who is in a Borstal School to a 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 stated therein
I may here refer to some of the decisions having a hearing on the effect of an order made under section 10 A of the Act In in re T Munirathnam Reddi  Anr
Subba Rao CJ 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 not a hardened criminal
He was a student of Sri Venkateswara 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 presumably when they questioned him about his conduct in insulting his mother
The act was done by an young man of good antecedents in an emotional state
In our view
section 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 section 10 A and to commit him to the Borstal School for such period as they think fit
 The above decision shows that the High Court of Andhra Pradesh was of the view that on making an order under section 10 A of the Act the State Government could commit a person 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 orders in In re
Krishnawami alias Kittan and in In the
Periyaswami Asari
It is true that the Kerala High Court has held in Kesavan vs State of Kerala that a person above 16 and below 21 years of age at the time he committed murder and sentenced to imprisonment for life could be detained in a Borstal School under section 10 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 740 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 Borstal School after he attains 23 years of age found in section 8 of the Act for according to that High Court that sentence merely says that the provision of the Act shall apply to an offender whose detention in a Borsal School is directed under section 10 A 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 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 act to prisoner who is directed to be transferred to a Borstal School under section 10 A
The object of the legislation is to reform of fenders 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 would have serious adverse influence on their character
If 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 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 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 has adopted and applied in a number of cases the rule of construction expounded by Lord Asquith in East End Dwellings Co Ltd vs Finsbury Borough Council in the following words 741 If you are bidden to treat an imaginary state of affairs as real you must surely unless prohibited from doing so also imagine as real the consequences and 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 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 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 Government to order at any time the discharge of an inmate of any Borstal School 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 inmates 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 Borstal 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 other part of India with the consent of the Government of the 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 vs The Government of Andhra Pradesh case supra that if a person detained in a Borstal School under section 10 A of the Act is to be re transferred 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 742 who is detained in a Borstal School has to be released if he has completed 23 years of age
But Shri 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 now released until he has undergone fourteen years of imprisonment as prescribed by section 433 A if he is a person who is sentenced for imprisonment for life for an offence for which death is also one of the punishments prescribed by law
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 imprisonment 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 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 of fourteen years
Section 433 A of the Code which came into force on December 18 1978 reads thus 433 A Restriction on powers of remission or commutation in certain cases Notwithstanding anything contained in Section 432 where a sentence of imprisonment for life is imposed on conviction of a person for an 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 imprisonment for life such person shall not be released from prison unless he had served at least fourteen years of imprisonment
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 is satisfied that it would be to his advantage as provided therein
743 It is well known that persons who commit acts which are forbidden by law are ordinarily classified into groups on the basis of their age for determining their liability under 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 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 admonition a person under twenty one years of age who is convicted of an offence not punishable with death or imprisonment for life and no previous conviction is proved against him
The Act 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 criminal law is therefore beyond reproach
The only argument pressed before us by the State Government is that in view of the mandate of section 433 A of the Code and person who is sentenced for imprisonments for life for an 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 10 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 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 person and a Borstal institution
Section 433 A of the Code refers to a person who is actually undergoing imprisonment
As soon as an order is made under section 10 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 744 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
I have already noticed that 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 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 requirements 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 detention in a Borstal School is not to be counted as the period of imprisonment because detention is ordered in lieu of imprisonment 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 computing the fourteen years of imprisonment mentioned in section 433 A 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  That would hardly be a proper thing to be demanded of him
Our attention is drawn to a decision of this Court in Maru Ram etc
vs Union of India  Anr I have gone through that decision carefully
There the question which arose for consideration 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 convicted 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 Chandrachud CJ and Bhagwati J observed at pages 1217 and 1218 thus Sentencing is a judicial function but the execution of the sentence  after the court s pronouncement is ordinarily 745 a matter for the Executive under the Procedure Code going by Entry 2 in List III of the Seventh Schedule
Keeping aside the constitutional powers under articles 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 by action under sections 432433 or articles 72161
And if the latter power under the Constitution is not invoked the only source of salvation is the play of power under sections 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 power of the State under Entry 4 of List II even if it be stretched to snapping point can deal only with Prisons and Prisoners never with truncation of judicial sentences
Remission by way of reward or otherwise cannot out down the sentence as such and cannot let it be unmistakably understood grant final exit passport for the prisoner except by Government action under section 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 freedom
Any amount of remission to result in manumission requires action under section 432 1 read with the Remission Rules
That is why Parliament tracing the single source of remission of sentence to section 432
blocked it by the non obstante clause
No remission however long can set 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 section 432
So read the inference is inevitable even if the contrary be argument ingenious that section 433 A achieves what it wants arrest the release of certain classes of lifers  before a certain period by blocking section 432
articles 72 and 161 are of course excluded from this discussion as 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 746 5
Saving Nothing contained in this Code shall in 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
It was contended by the petitioners in that case that section 5 of the Code saved all remissions short sentencing schemes as special and local laws and therefore they would prevail over the Code including section 433A Repelling that contention Justice Krishna Iyer proceeded to observe thus 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 and will prevail
The short sentencing measures and remission schemes promulgated by the various States are special and local laws and must over ride
Now comes the third component which may be clinching
If there is a specific provision to the contrary then that will over ride the special or local law
Is section 433A a specific law contra  If so that will be the last word and will hold even against the special or local law 
A thing is specific if it is explicit
It 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 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 section 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 section 432 Cr
PC Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment
It follows that section 433A applies in preference to any special or local law because s5 expressly declares that specific provisions if any to the contrary will prevail over any special or local law
We have said enough 747 to make the point that specific  is specific enough and even though special  to specific  is near allied and thin partition do their bounds divide  the two are different
Section 433A escapes the exclusion of section 5
 A reading 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 excluded the operation of section 432 the 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
In the instant case reliance is not being placed on any rules traceable to section 432 of the Code or on a statute which empowered the State Government to reduce the period of imprisonment imposed by the Court passed under the legislative power derived from Entry 2 of List III of the Seventh Schedule to the Constitution 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 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 10 A of the Act directing their detention in a Borstal School then they cease to be persons undergoing imprisonment for life on being convicted of an offence for which death is also prescribed 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 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 but 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 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 748 remit sentences
The Joint Committee on the Indian 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 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 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 equivalent to rigorous imprisonment for twenty years
In this connection attention of the Committee was brought to the aspect that sometimes due to grant of remission even murderers sentenced or commuted to 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 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 would have been more comprehensive including all local statutes enacted for the benefit of children and juvenile or adolescent offenders
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 enactment of section 433A of the Code
The contrary view expressed by the Madras High Court in In re
Ganapatt cannot be accepted as correct
I am therefore of the view that section 433A of the Code 749 would not operate in respect of persons dealt with under section 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 Constitution the Act should yield in favour of a later Central legislation which is repugnant to the Act would not arise because there would 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 Bahadur  Ors
vs State of Uttar Pradesh which was a case under the UP 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 when he was sent to prison the Jailor referred him to the Sewa Sadan under section 7 of the United Provinces Borstal Act 1938
Under this section where a prisoner is sentenced for transportation ie 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 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 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 MUKHARJI J
With great respect I agree with the order proposed and also with the reasoning of my learned brother Justice Venkataramiah
There is however some anomaly in Section 10A of the Andhra Pradesh Borstal Schools Act 1925
The said section has been set out in the judgment
It empowers the State Government to transfer offenders sentenced to transportation to Borstal 750 School 
It further provides that if the State Government is satisfied that any offender who has been sentenced to transportation either before or after the passing of the Madras Borstal Schools Amendment Act 1939 and who at the time of conviction was not less than 16 years nor more than 21 years might with advantage be detained in Borstal School direct that such offender shall be transferred to a Borstal 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 he had been originally sentenced to detention in a Borstal School 
In the instant case by the order dated 12th September 1980 the State Government had directed that the petitioner should be detained in a Borstal School to serve the unexpired 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 vs Finsbury Borough Council deemed that the original 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 10A 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 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 consider the question of either altering the language of Section 10A of the Act or be more specific while passing any orders under Section 10A of the Act
With these observations I respectfully agree with the decision of my learned brother
HSK Appeal dismissed


Summary:
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 10 A of the Andhra Borstal Schools Act 1925 hereinafter referred to as the Act  to serve unexpired portion 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
The 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 least 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 imprisonment  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 soon as order is made under section 10 A of the Act 730 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
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 his 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 offender detained under section 8 of the Act to a prisoner who is directed to be transferred to a Borstal school under 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 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 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 counted as the period of imprisonment because detention is ordered in lieu of imprisonment 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 computing the 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  That would hardly be a proper thing to be demanded of him
743F H 744A E Emperor vs Lakshman Shivram AIR 1933 Bom
FB referred to
In re T Muniratnam Reddi  Anr AIR 1955 Andhra 118
In re
Krishnaswami alias Kittan AIR 1949 Mad 109
In re
Periyaswami Asari AIR 1949 Mad 223 and Kesavan vs State of Kerala 1957 KLG 1049 overruled
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 imprisonment for life the Borstal school would soon become a prison consisting of lifers  and its other inmates who are detained under section 8 of the Act 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 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
740E G East End Dwellings Co Ltd vs Finsbury Borough Council at p 132
referred to
731 If a person detained in a Borstal school under section 10 A of the Act is to be re transferred 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 who is detained in a Borstal school has to be released if he has completed 23 years of age
741G H Bondili Jagannath Singh vs The Government of Andhra Pradesh
1983 2 Andhra Pradesh Law Journal 262 upheld
In the instant case the Andhra Borstal Schools Act 1925 which specifically 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 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 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 for capital offences but had been sentenced to imprisonment for life to short periods like five to six years
747E H Maru Ram etc
vs Union of India  Anr
   explained and distinguished
Section 433A of the Code would not operate in respect of persons dealt with under section 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
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  overruled
Kunwar Bahadur  Ors vs State of Uttar Pradesh AIR 1979 SC 1509 referred to
Per Sabyasachi Mukharji J There is some anomaly in section 10 A of the Andhra Pradesh Borstal Schools Act 1925
It empowers the State Government to transfer adolescent offenders sentenced to transportation 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 shall be transferred to a Borstal 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 732 he had been originally sentenced to detention in a Borstal School 
My learned brother has with the aid of the principle enunciated by Lord Asquith in East End Dwellings Court
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 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 unexpired 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 consider the question of either altering the language of section 10 A of the Act or be more specific while passing any orders under section 10A of the
750E H East End Dwellings Co vs Ltd vs Finsbury Borough Council 1952 Appeal Cases 109 at p 132 referred to