ition Criminal No668 of 1986
Under Article 32 of the Constitution of India
RK Jain and RP Singh for the Petitioner
CVS Rao for the Respondents
The Judgment of the Court was delivered by BC RAY J
The petitioner who was aged about 18 years along with one Subeh Singh was involved in a case of murder of one Ranbir Singh and he was convicted for an offence U s 302 34 IPC and sentenced to life imprisonment by judgment and order dated 22nd May 1980
The petitioner being admit tedly below 21 years of age at the time of alleged commis sion offence was sent to Borstal Institution in accordance with the provisions of Punjab Borstal Act 1926
It has been stated that the petitioner has already undergone a period of about 6 years 10 months and 11 days detention in jail and together with remissions earned by him it comes to over 10 years
It has been further stated that he is entitled to be released both under the Punjab Borstal Act as well as under paragraph 5 16 B of the Punjab Jail Manual and has therefore prayed for his pre mature release as provided under the Punjab Borstal Act and also under paragraph 5 16 B of the Punjab Jail Manual
In the counter affidavit filed on behalf of the respondent sworn by one Shri Ram Chander Sarwan Superintendent of District Jail at Rohtak it has been stated that the petitioner was convicted and sentenced to life imprisonment US 30234 IPC on 225
1980 by the Sessions Judge Rohtak and he was sent to District Jail Rohtak to undergo the sentence passed upon him
It has been further stated that at the time of conviction he was 19 years of age and as such he was sent to BI  J Jail Hissar
He was transferred back to this Jail Rohtak District Jail on 1612
1981 for trial in IInd case FIR No
III78 Us 45232534 IPC
He was acquitted in this IInd case and as he was about 21 years of age so he was kept in the Jail to undergo the life imprisonment imposed upon him on 225
It has 1064 been further averred that after the amendment of the Crimi nal Procedure Code the petitioner being sentenced to life imprisonment has to undergo 14 years of substantive sentence Us 433 A of the Code before his case can be considered for pre mature release
The detail of sentence undergone by the petitioner as on 2212
1986 was also given in the said affidavit wherefrom it appears that he has already undergone 7 years 3 months and 3 days actual sentence upto 2212
It has therefore been stated that the petitioner having not undergone 14 years of actual sentence he can not be released pre maturely
It is evident from the averments made in the writ peti tion as well as in the said counter affidavit that the petitioner who was admittedly adolescent at the time of his conviction was sent to Borstal Institute at Hissar
Subse 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 mature age and their subsequent training in separate insti tutions
These Borstal Institutions are 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 21 of Punjab Borstal Act 1926
Sub section 2 of section 2 defines detained  as detained in and detention  as detention in a Borstal Institution
Section 5 of the said Act which is very vital for the purpose of decision of this case is quoted hereinbelow 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 imprison ment 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 empowered under section 30 of the Code of Criminal Procedure 1898 or a Judi cial Magistrate of the first class or is ordered to give security for good behaviour and fails to give such security and when by reason of his criminal habits or tendencies or associations with persons of bad character it is expedient in 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 impris onment pass an order of detention for a term which shall not be less than two years and shall not exceed seven years when the order 1065 is passed by a court of sessions or a Magis trate specially empowered under Section 30 of the Code of Criminal Procedure 1898 and shall not be less than two years nor exceed three years when the order is passed by a Judicial  Magistrate of the first class not so empowered
2 When any Judicial Magistrate not empowered to pass such order is of opinion that an offender convicted by him is a person in respect of whom such order should be passed in accordance with the provisions of sub section 1 he may without passing any sentence record such opinion and submit his proceedings and forward the accused to the Chief Judicial Magistrate to whom he is subor dinate
3 The Chief Judicial Magistrate to whom the proceedings are so submitted may make such further enquiry if any as he may deem fit and pass such order for the detention of the offender or such other sentence or order as he might have passed if the trial had been held by him from its commencement
 Thus it is manifest from Section 5 of the said Act that either a Sessions Judge or a Magistrate of first class or a Magistrate specially empowered under Section 30 of the Code of Criminal Procedure after convicting any male person who is less than twenty one years of age of an offence punisha ble with imprisonment for life or transportation or other rigorous imprisonment or a convict is ordered to give secu rity for good behaviour and fails to give such security may in lieu of passing a sentence of transportation or rigorous imprisonment pass an order of detention which shall not be less than two years and shall not exceed seven years when an order is passed by a court of sessions or a Magistrate specially empowered under the Code of Criminal Procedure
The petitioner who was adolescent admittedly being less than twenty one years of age at the time of his conviction though convicted Us 30234 IPC and sentenced to imprisonment for life was sent to the Borstal Institute in accordance with the provisions of Punjab Borstal Act 1926
On his attaining the age of about twenty one years he was trans ferred back to the Jail
There is no provision except sec tion 20 under the said Act for transferring back an adoles cent convict on his attaining the age of twenty one years from the Borstal Institute to Jail for undergoing the unex pired term of imprisonment
On the other hand on a plain reading of section 5 it is clear that the adolescent convict under twenty one years of age after expiry of his period of detention 1066 has to be released from detention and he is not to be trans ferred to Jail for undergoing the unexpired period of his sentence of imprisonment
Section 20 of the said Act is in the following terms 20
Incorrigibles Where an inmate is report ed to the State Government by the visiting committee to be incorrigible or to be exercis ing a bad influence on the other inmates of the institution or is convicted under section 19 of this Act or is reported by the Superin tendent to have committed an offence which has been declared to be major Borstal Institution offence by rules made by the State Government in pursuance of the provisions of sub section 14 of section 34 of this Act the State Government may commute the residue of the terms of detention to such term of imprison ment of either description not exceeding such residue as the State Government may direct and may order the transfer of the inmate to any jail in Punjab in order to complete the said term of imprisonment
 This 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 Government may direct and also to order transfer of the inmate to any jail in Punjab in order to complete the said term of imprisonment when such an inmate is reported to be incorrigible or his exercising bad influence on the other inmates of the Insti tution or such an inmate has committed a major Borstal Institution offence as provided in the rules
There is nothing to show that the petitioner was ever found to be incorrigible or to be exercising a bad influence on the other inmates of the Institution or is found to have commit ted any major Borstal Institution offence and the State Government has not passed any order for his transfer from the Borstal Institution to Jail for undergoing the residue of his term of imprisonment
This Court while considering an identical case in the State of Andhra Pradesh vs Vallabhapuram Ravi  has observed that a person detained in a Borstal School under section 10 A has to be released after he 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 providing for deten tion of young offenders in Borstal School for the purpose of reformation and rehabilitation of such offenders
 It is to be noted in this connection that 1067 sentence of detention is passed in lieu of sentence of imprisonment which may have been passed
Hence the detention order Us 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 PC 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 offend ers like adolescent offenders but only to regulate capri cious 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 con victed of capital offences but had been sentenced to impris onment for life to short periods like five to six years
 On a conspectus of the aforesaid decision as well as on a consideration of the facts and circumstances the only conclusion follows that the petitioner who has already undergone actual imprisonment for seven years is entitled to be released from detention and from imprisonment
Paragraph 5 16 B of the Punjab Jail Manual is not applicable in this case as the petitioner who was an adolescent convict below twenty one years of age was sent to the Borstal Institute at Hissar for detention in accordance with the provisions of Section 5 of the Punjab Borstal Act 1926
He being convict ed by the Sessions Judge the maximum period of detention as prescribed by the Act is seven years
We have already said hereinbefore that such an inmate of the Borstal Institute cannot be transferred to Jail on the ground that he has attained the age of twenty one years as the said Act does not provide for the same
The only provision for transfer to Jail is in the case of incorrigible inmate or inmates con victed of major Borstal Institution offence
The petitioner who was  detained in a Borstal Institute is entitled to be released and to be set free as he has already undergone detention for a period of seven years
The Writ Petition is therefore allowed
The respondents are directed to release the petitioner from imprisonment forthwith
There will be no order as to costs
SL Petition allowed


Summary:
The petitioner aged about 18 years was convicted for an offence us 30234 IPC and sentenced to life imprison ment by judgment and order dated 22nd May 1980 and being admittedly below 21 years of age at the time of commission of the offence was sent to Borstal Institution in accord ance with the provisions of the Punjab Borstal Act 1926
The Petitioner filed this writ petition in this Court stating that the total period of detention under gone by him together with the remissions earned by him came to over ten years and he was entitled to be released both under the Punjab Borstal Act as well as under paragraph 516 B of the Punjab Jail Manual
The petitioner therefore prayed for his premature release as provided under the Punjab Borstal Act and the paragraph 516 B of the Punjab Jail Manual
On behalf of the respondents a counter affidavit was filed by the Superintendent Rohtak District Jail where the petitioner was first sent after his conviction and sentence us 30234 IPC and where he was brought again from the Borstal Institute in connection with another case and was now being kept as he had attained the age of 21 years
Allowing the writ petition the Court HELD The petitioner was sent to Borstal Institute at Hissar as he was admittedly adolescent at the time of his conviction and was subsequently transferred to the District Jail at Rohtak to undergo the sentence of imprisonment for life
1064C It appears from the objects and reasons of the Punjab Borstal Act 1926 that the object of the Act is to provide for the segregation of the adolescent prisoners from those of more mature age and their subsequent training in sepa rate Borstal Institutions meant for detaining the adolescent offenders and for imparting to them industrial training and 1062 subjecting them to such disciplinary and moral influence as will conduce to their reformation
1064C E Under section 5 of the Act above said either a Sessions Judge or a Magistrate of first class or a Magistrate spe cially empowered under section 30 of the Code of Criminal Procedure after convicting any male person less than twenty one years of age of an offence punishable with imprisonment for life or transportation or other rigorous imprisonment or in the case of a convict who is ordered to give security for good behaviour and he fails to give such security may in lieu of passing a sentence of transporta tion or rigorous imprisonment pass an order of detention which shall not be less than two years and more than seven years when an order is passed by a Court of Sessions or a Magistrate
The petitioner when he was convicted us 30234 IPC and sentenced to imprisonment for life was adoles cent being less than twenty one years of age and was sent to the Borstal Institute in accordance with the provisions of the Punjab Borstal Act 1926
On his attaining the age of about twenty one years he was transferred back to the jail
There is no provision except section 20 in the said Act for transferring back an adolescent convict on his attaining the age of twenty one years from the Borstal Institute to jail for undergoing the unexpired term of imprisonment
On the other hand under section 5 of the Act an adolescent convict under twenty one years of age after the expiry of his period of detention has to be released from detention and he is not to be transferred to jail for undergoing the unexpired period of his sentence of imprisonment
Section 20 empowers the State Government  to commute the residue of the term of detention of an inmate of the Borstal Institute and also order his transfer to any jail in Punjab to complete the said term of imprisonment when such an inmate is report ed to be incorrigible or is exercising bad influence on the other inmates of the Institution or has committed a major Borstal Institution offence as provided in the rules
There was nothing to show that the petitioner had been even found to be incorrigible or to be exercising a bad influence on the other inmates of the Institution etc as stated above and the State Government had not passed any order for his transfer to the jail as mentioned above
1065E H 1066A D F On a conspectus of the decision of this Court in the State of Andhra Pradesh vs Vallabhapuram Rani   and on a consideration of the facts and circum stances of the case the only conclusion that followed was that the petitioner who had already undergone actual im prisonment for seven years was entitled to be released from detention and imprisonment
Paragraph 516 B of the Punjab Jail 1063 Manual was not applicable in this case
The Court directed the respondents to release the petitioner from imprisonment forthwith
1067C D G State of Andhra Pradesh vs Vallabhapuram Rani 19844SCC 410 referred to