Writ Petition CRL No 745 of 1987
Under Article 32 of the Constitution of India
JM Khanna for the Petitioner Ravindra Bana G Venkatesh Rao and CV Subba Rao for the Respondents
The following order of the Court was delivered O R D E R The petitioner has been convicted for the offence of murder and sentenced to imprisonment for life
He claims in this application under Article 32 of the Constitution the benefit of the Punjab Borstal Act and has placed reliance on a decision of this Court in the case of Hava Singh vs State of Haryana AIR 1987 SC 2001
A counter affidavit has been filed disputing the tenability of the claim
In Hava Singh s case supra a two Judge Bench including one of us was considering the claim of a convict for an offence of murder to release taking into account the period the prisoner had stayed in the Borstal institution
In that case it was observed It is evident from the averments made in the writ petition as well as in the said counter affidavit that the petitioner was admittedly adolescent at the time of his con 558 viction was sent to Borstal Institute at Hissar
Subsequently 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 institutions
These Borstal Institutions meant for detaining adolescent offenders and to impart to them such industrial training and other instructions and subject them to such disciplinary and moral influence as will conduce to their reformation
This is evident from the provisions of section 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 imprisonment 1 When any male person less than twenty one years of age is convicted of an offence by a court of sessions a Magistrate specially empowered under section 30 of the Code of Criminal Procedure 1898 or a Judicial 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 this 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 imprisonment 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 is passed by a Court of sessions or a Magistrate specially empowered under section 30 of the Code of Criminal Procedure 1898 and shall not be less than two years nor exceed three years when the order is passed by a judicial magistrate of the first class not so empowered
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This court further stated The petitioner who was adolescent admittedly being less than twenty one years of age at the time of his conviction though convicted under Section 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 transferred back to the Jail
There is no provision except section 20 under 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
The Court then referred to section 20 of the Act dealing with incorrigibles and observed n The section empowers the State Government to commute the residue of the term of detention of an inmate in Borstal Institute to such term of imprisonment of either description not exceeding the residue as the State Government may direct and also to order transfer of the inmate to any jail in Punjab in order to complete the said term of imprisomnent when such an inmate is reported to be incorrigible or is exercising bad influence on the other inmates of the Institution or such an inmate has committed a major Borstal Institution offence as provided in the rules
 The Court then stated This Court while considering an indentical 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 detention of young offenders in Borstal School for the purpose of reformation and rehabilitation of such offenders 
It is to be 560 noted in this connection that sentence of detention is passed in lieu of sentence of imprisonment which may have been passed
Hence the detention order under section S 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 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
 Under the Punjab Act offence  has been defined in section 24 to mean an offence punishable with transportation or rigorous imprisonment under the Indian Penal Code other than a an offence punishable with death Hava Singh s case did not refer to the definition of offence  and relied upon the decision in the case of Ravi supra though the scheme of the Andhra Act was very different
The Andhra Act known as the Andhra Pradesh Borstal Schools Act 1925 does not have the definition of offence  and there is no exclusion as provided in the Pun jab Act
What is excepted in the definition is an offence which is punishable with death
Section 302 of the Indian Penal Code provides Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine  One of the punishments for the offence of murder is death and therefore the offence of murder would be covered within section 24ia of the Punjab Act and to such a conviction the Punjab Borstal Act would have no application
Support for such a view is available from 561 several decisions of different High Courts
Section 5621 of the Code A of Criminal Procedure of 1898 as amended in 1923 brought in the phrase Punishable with death or transportation for life
In Emperor vs Mt Janki  Anr AIR 1932 Nag 130 that phrase was interpreted disjunctively and women convicted of an offence for which transportation for life was one of the punishments provided were held ineligible for release on probation under section 562
It was pointed out that the words death or transportation for life  must be read as referring to offences the penalty for which provided by the Penal Code contains either death or transportation for life as one of the punishments awarded and not necessarily both
Reliance was placed on a full Bench decision of the Rangoon High Court in King Emperor vs Nga San Htwa  Ors AIR 1927 Rangoon 205 which was dealing with a similar phrase occurring in section 497 of the old Code
A Division Bench of the Madhya Pradesh High Court in Chetti vs State of Madhya Pradesh AIR 1959 MP 241 also took the same view
In Emperor vs Bahawati AIR 1928 Lahore 920 it was held that as one of the alternative punishments for that offence under section 307 of the Penal Code is transportation for life it is obvious that section 562 is not applicable and the accused must be sentenced to rigorous imprisonment and fine
The Allahabad High Court in the case of State vs Sheo Shanker AIR 1956 All 326 the Madras High Court in Public Prosecutor of Madras vs Paneswar Rao AIR 1946 Mad
178 the Rajasthan High Court in Sarkar vs Jalam Singh AIR 1950 Raj 28 and the Bombay High Court in Naranji Premji vs Emperor AIR 1928 Bom
244 have taken the same view
In Hava Singh s case the definition was not placed for consideration before the Court and therefore the conclusion which has been reached is not correct
The Punjab Borstal Act does not have application to an offence punishable under section 302 IPC
therefore the conclusion in Hava Singh s case is not correct
The petitioner is not entitled to the benefit of the Punjab Borstal Act as he has been sentenced to imprisonment for life for the offence of murder punishable under section 302 IPC for which the sentence of death is prescribed as an alternate
The writ petition is dismissed
PSS Petition dismissed


Summary:
The respondent filed a suit against the appellant under 0
xxxvII of the Code of Civil Procedure on the basis of a cheque for Rs 60000 drawn by the appellant in favour of the respondent which on presentation to the Bank had been dishonoured
The appellant applied under r 3 Of 0
XXXVII for leave to appear and defend the suit on the ground that the cheque had been given only as a collateral security for the price of goods supplied that the goods had been paid for by cash payments and by other cheques and that therefore the cheque in question had served its I54 1212 end and was without consideration
The Court held that the defence raised a triable issue but that the defence was vague and was not bona fide as the appellant had produced no evidence to prove his assertions and consequently granted leave to defend the suit on the condition of the appellant giving security for the suit amount and the costs of the suit  Held that the imposition of the condition was illegal and the appellant was entitled to defend the suit without giving the security
The object of the special procedure under 0
XXXVII of the Code is to see that a defendant does not unnecessarily prolong the litigation by raising untenable and frivolous defences
The test is to see whether the defence raises a real issue and not a sham one in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defence on those facts
If the Court is satisfied about that leave must be given and given unconditionally
Held further that the Court was wrong in imposing the condition about giving security on the ground that for want of production of documentary evidence the defence was vague and not bona fide as the stage of proof can only arise after leave to appeal and defend has been granted
Though the Court is given a discretion about imposing conditions it must be exercised judicially and in consonance with principles of natural justice
If the discretion is exercised arbitrarily or is based on a misunderstanding of the principles that govern its exercise then interference is called for if there has been a resultant failure of justice