IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY THIRD DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No: 19962 of 2003 BETWEEN: P. Komaraiah S/o. Rajam, R/o.113, Ganga Colony, Ramakrishnapur, Madamurri Mandal Adilabad District. ... PETITIONER AND 1 Government of A.P., Rep. by its Principal Secretary, Dept of Home (Prisons) Secretariat, Hyderabad. 2 The Director General & Inspector General of Prisons and Correctional Services, Chanchalguda, Hyderabad. 3 The Superintendent, Central Jail, Moulali, Cherlapally, R.R. District. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to pleased to issue am appropriate writ, order or direction, more particularly one in the nature of Writ of Mandamus, to declare the impugned Memo No.44937/Pr.B2/2001 dt.3-5-2003 issued by the first respondent as illegal, arbitrary, unconstitutional, contrary to the provisions of Borstal Schools Act, 1925 and besides violative of Articles 14 and 21 of the Constitution of India and consequently set aside the same, and to grant such other relief or reliefs as this Hon'ble Court deems fit and proper in the circumstances of the same. Counsel for the Petitioner: MR.VOOSA.RAGHU Counsel for the Respondents: GP FOR HOME The Court made the following: ORDER: Petitioner’s son, Mr. P. Raju, was convicted and sentenced to undergo life imprisonment in S.C.No.316 of 1998 for the offence under Sections 302 and 307 read with Section 34 of the Indian Penal Code on 18.07.2001 by the Additional Sessions Judge, Adilabad, which was also confirmed by the High Court in Crl.A.No.1095 of 2001. The petitioner’s son convict No.1541 is confined in central prison, Cherlapally and his age was shown as 25 years in the conviction warrant issued on 18.07.2001. As per the age shown by the Sessions Court, as 25 years as per conviction warrant dated 18.07.2001, he is not entitled to be treated as adolescent offender within the meaning of Section 2(1) of the Andhra Pradesh Borstal Schools Act, 1951 (for short ‘the Act’) and he was sent to Central Prison. It is stated that thereafter, the petitioner made a representation before the Government contending that the date of birth of the convict as per the Transfer Certificate issued by the College is 06.01.1982 and therefore, his age was below 21 years as on the date of conviction. Therefore, the convict is entitled to be sent to Borstal School for a period of two years. The said representation to transfer the convict No.1541 to Borstal School was rejected by the Government in its memo No.49937/Pri.B2/01 Home (Prisons.B2) Department dated 03.05.2003 on the ground that the crime committed by the convict is heinous crime and a pre-meditated crime, therefore, the said convict is not entitled for sending him to Borstal School where the ordinary convicts could only be influenced by mingling with him. 2. A perusal of the Government memo does not indicate the determination of the age and date of birth of the convict. The application of the petitioner was rejected on the ground that the convict has crossed 21 years of age and he is no longer an adolescent offender and also that the crime committed by him is a heinous one and a premeditated one. It was further observed that as per the judgment of the Sessions Court the convict was 25 years and accordingly the original certificates of memorandum of marks (SSC) issued by the Board of Secondary Education and the Original Transfer Certificate issued by the Principal, Government Junior College, Sultanabad were returned. I am of the opinion that if the date of birth of convict as per the certificate issued by the Board of Secondary Education is 06.01.1982, the age of the convict as on 18.07.2001, would be 19 years 6 months12 days; therefore, the petitioner’s son is entitled for sending him to Borstal School. 3. In the counter it is stated that as per the judgment of the Sessions Court the age of the convict was mentioned as 25 years but as per the certificates issued by the Board of Secondary Education and the Principal, Government Junior College, the date of the birth of the convict is 06.01.1982, accordingly the age of the convict will be 19 years 6 months 12 days as on the date of conviction i.e. 18.07.2001. In view of the fact that the Sessions Court mentioned the age of the convict as 25 years he was not treated as an adolescent offender as per Section 10-A of the Andhra Pradesh Borstal School Act, 1925 (for short ‘the Act’). Therefore, the request of the petitioner was rejected based on the judgment of the Sessions Court alone. 4. Under Section 11 of the Act it is the duty of the Court to conduct preliminary enquiry and record a finding as to the age of the adolescent offender. In the instant case, admittedly, no enquiry has been conducted by the Sessions Judge for determination of the age of the convict with reference to his certificates. If that be so, it cannot be said that the Government has no power to consider the age of the convict and determine the same in accordance with the date of birth based on the school certificates. In the instant case, the Government has not at all considered or determined the age of the convict taking into account his date of birth. If the petitioner’s son establishes that he was below 21 years as on the date of judgment, he is entitled to be sent to the Borstal School for a period of two years as per the judgment of this Court in SUPERINTENDENT, CENTRAL PRISON v. C. NARSIMHULU [1] . 5. A learned Single Judge of this Court in P. KRISHNA v. GOVERNMENT OF ANDHRA PRADESH (WP.No.13490 of 2003 dated 13.03.2006) while considering the definition of adolescent offender under Section 2(1) of the Act, the power of the Court to pass sentence of detention in Borstal School under Section 8 of the Act, the power of State Government to transfer offender sentenced to transportation to Borstal Schools under Section 10-A of the Act and the judgment of the Division Bench of this Court in PUBLIC PROSECUTOR v. MOHANRAO (1963 (2) An.W.R. 479) held as follows: “The Division Bench had an occasion to consider the scope and object of the power conferred under Section 8 of the Act on the Court and the power conferred on the State Government under Section 10-A of the Act. The Division Bench held that to attract Section 8 of the Act, it must be established first that the person concerned is an adolescent offender. Having analysed the definition of “Adolescent Offender” under Section 2(1) of the Act vis-à-vis Section 302 of I.P.C. under which lawful sentence that can be passed to a convicted persons is death or imprisonment for life, the Division Bench further held that the definition of adolescent offender under Section 2(1) of the Act does not apply to a person who has been convicted under Section 302 of I.P.C. since Section 302 of IPC is not an offence punishable with imprisonment simpliciter, but it is an offence punishable with imprisonment for life or death. Thus, the Division Bench concluded that Section 8 of the Act can have no application in a case where a person had been convicted for an offence of murder, that is to say, an offence punishable with imprisonment for life. However, the Division Bench explained that the power conferred on the State Government under Section 10-A of the Act which deals with any offender who has been sentenced to transportation has to be read with Section 53-A of I.P.C. and thus the word ‘transportation’ occurring in Section 10-A of the Act would mean ‘imprisonment for life’ where a person has been convicted of murder, which is punishable with death or imprisonment for life under Section 302 of I.P.C. Thus, it is clear that though both Section 8 and Section 10-A of the Act deal with detention in a Borstal School where the offender is not less than 16 years, but not more than 21 years of age, as pointed out by the Division Bench in MOHAN RAO’s case (1 supra), there is a clear distinction between the power conferred under Section 8 of the Act on the Court and the power conferred on the Government under Section 10-A of the Act. Whereas the Court can pass sentence of detention in a Borstal School only in respect of a person who is not less than 16 years, but not more than 21 years of age and is convicted of an offence punishable with imprisonment simpliciter, the power conferred on the Government under Section 10-A of the Act is much wider and it includes the power to transfer, even an offender who is sentenced to imprisonment for life for detention in a Borstal School. The above principle has been reiterated in a later decision by another Division Bench of this Court in STATE OF AP v. KOMALLA KRISHNAIAH. In the case on hand, it is not in dispute that the son of the petitioner was less than 21 years of age by the date of his conviction in S.C.No.395 of 1999. As a matter of fact, the learned Sessions Judge had taken note of the said fact, but rightly declined to pass sentence of detention in a Borstal School following the decision in MOHAN RAO’s case (1 supra). However, in view of the subsequent events which culminated in the impugned order passed by the respondent – State Government declining to transfer the son of the petitioner to a Borstal School under Section 10-A of the Act, the only question that arises for consideration is whether the action of the respondent is in accordance with law.” 6. A perusal of the impugned order goes to show that the age of the convict was not at all determined and if the Government determines the age of the convict as on the date of conviction and if it is below 21 years, the convict is entitled to be sent to Borstal School for a period of two years without any reference to the present case. It is also pertinent to quote the relevant portions of the aforesaid judgment as under: “It is true that under Section 8 of the Act while passing a sentence of detention in a Borstal School, the term of detention shall not be extended beyond the date on which the adolescent offender will attain the age of 23 years. However, Section 10-A of the Act does not contain any such restriction and there is no other provision under the Act which either expressly or by way of implication extends the restriction under Section 8 of the Act, to the power conferred on the Government to transfer an offender to a Borstal School under Section 10-A of the Act which was inserted under A.P. Borstal Schools (Amendment) Act, 2001 (Act No.3 of 2001) mandates that an offender who is transferred to the Borstal School under Sub- section(1) of Section 10-A of the Act shall be detained for a minimum period of two years. Sub-section (2) of Section 10-a of the Act which starts with a non-obstante clause makes it clear that notwithstanding the restriction imposed under Section 8 of the Act the term of detention of an offender who is transferred to a Borstal School under Section 10-A of the Act shall be for a minimum period of two years. Even the statement of Objects and Reasons to the Amendment Act, 2001 (Act No.3 of 2001) show that the insertion of Sub-section (2) is only for the purpose of making it clear that the term of detention of an offender who is transferred to a Borstal School under Section 10-A of the Act shall be for a minimum period of two years notwithstanding the requirement of Section 8 of the Act that no inmate can be detained in a Borstal School after attaining the age of 23 years. Hence, it cannot be said that there is any embargo to order transfer of the offender to a Borstal School under Section 10-A of the Act even where the offender has crossed the age of 23 years. For the aforesaid reasons and since admittedly the petitioner’s son was less than 21 years of age by the date of the offence as well as the date of conviction, as observed by the Supreme Court in BHOLA BHAGAT’S case (3 Supra), it would be appropriate to extend the benefit of Socially Oriented Legislation to him thereby affording him an opportunity to reform himself and to reclaim as useful member of the society. Hence, in my considered opinion, instead of compelling the son of the petitioner to undergo remaining sentence in a regular prison in the company of hardened criminals, it would be just and proper to transfer him to a Borstal School for detention for a period of two years for reformation.” 7. In view of the aforesaid facts and circumstances of the case, I am of the opinion that it is just and proper to determine the age of the convict and if the age of the convict is held to be less than 21 years as on the date of conviction, the petitioner’s son is entitled to be transferred to Borstal School for a period of two years for reformation. Accordingly, the impugned memo of the first respondent dated 03.05.2003 is set aside and the matter is remitted to the first respondent to determine the age of the convict and pass appropriate orders in the light of the observations made by this Court in the aforesaid case in WP.No.13490 of 2003 dated 13.03.2006. The entire process to determine the age and to take a fresh decision has to be completed within a period of six weeks from the date of receipt of a copy of this order. The writ petition is accordingly disposed of. There shall be no order as to costs. ______________ V. ESWARAIAH, J July 23, 2008 DSK [1] 1999 (1) ALT 107 (DB)