IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.6.2009 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE RAJA ELANGO Habeas Corpus Petition No.2121 of 2008 A.Jaya .. Petitioner vs. 1. The State Represented by The Superintendent, Central Prison, Puzhal, Chennai. 2. The Officer-in-charge, Borstal School, Chennai. .. Respondents Habeas Corpus Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Habeas Corpus, to direct the respondents to produce the detenu Parasuraman @ Dori Kannan, aged about 20 years, S/o Arumugam, before this Court and examine the illegal detention and direct the first respondent to transfer the detenu from Central Prison, Puzhal to Borstal School, Chennai. For petitioner : M/s.S.Manoharan For respondents: Mr.V.R.Balasubramanian, Addl.P.P. ORDER S.J.MUKHOPADHAYA,J The petitioner, the mother of the detenu, has preferred this Habeas Corpus Petition, alleging that the detention of the detenu- Parasuraman @ Dori Kannan, is illegal. 2. According to the petitioner, the detenu was born on 5.5.1987 and on the date of commission of offence, he was only 19 years old. The detenu being adolescent offender at the time of commission of the offence, should have been kept in Borstal School https://hcservices.ecourts.gov.in/hcservices/ till he attains the age of 23 years, but the learned Judicial Magistrate No.2, Kancheepuram, remanded the detenu to judicial custody and detained him at Central Prison, which is illegal. 3. Learned Additional Public Prosecutor appearing for the respondents submitted that the detenu cannot claim the benefit of Section 8 of the Tamil Nadu Borstal Schools Act and in order to detain a person in the Borstal School, it is the discretion which depends on the Court which convicted the offender. Similarly, under Section 10 of the Tamil Nadu Borstal Schools Act, the power is vested with the Inspector General of Prisons to transfer a prisoner to a Borstal School taking into consideration the nature of the offence committed by the detenu. Learned Additional Public Prosecutor also raised the question of maintainability of the Habeas Corpus Petition and according to him, the ground that the detenu is an adolescent offencer, cannot be taken for the first time in a petition for Habeas Corpus. 4. We have heard the learned counsel appearing for the parties and perused the records. 5. Under Section 8 of the Tamil Nadu Borstal Schools Act, the Court which passes the sentence of detention, is empowered to pass such sentence of detention in Borstal Schools and under the said provision, when it appears to a Court having jurisdiction under the Act that an adolescent offender should, by reason of his criminal habits or tendencies, or association with the persons of bad character, be subjected to detention for such term and under such instruction and discipline as it appears most conducive to his reformation and the repression of time, in lieu of passing a sentence of imprisonment, the Court may 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 and in no case, such term can extend beyond the date on which the adolescent offender will attain the age of 23 years. For passing such order, a report is required to be called for from the Probationary Officer of such area in which the offender permanently resides at the time when he committed the offence and shall consider any other report or representation as may be preferred. 6. In the present case, the petitioner has failed to show that on the basis of the report of the Probationary Officer or other report or representation, having regard to the criminal habits or tendencies or association of the detenu's presence of bad character, the Court ought to have passed an order of reformation by sentencing the detenu in Borstal School. In the absence of such a pleading on record before the Court, in a Writ of Habeas Corpus, it is not possible for the Court to decide as to whether the adolescent offender should have been sent to the Borstal School for reformation https://hcservices.ecourts.gov.in/hcservices/ or not. The Court which passed the sentence is empowered to decide the case of detention as to whether the detenu will be detained in a prison or in a Borstal School for reformation. Till it is shown that the Court which passed the sentence has not applied its mind, taking into consideration the report of the Probationary Officer or the other report of representation, no presumption can be drawn that the Court, while passing the order of detention ought to have passed the order of detention in a Borstal School. No presumption can be drawn that the Court while passing the order of sentence has not applied its mind. The presumption will be that the Court, as per the discretion, has to decide as to whether the adolescent offender should be sent to prison or in lieu of that, should be sent to Borstal School. 7. The question of maintainability of a petition for Habeas Corpus on the ground that a person sentenced to imprisonment is entitled to the benefit of the Tamil Nadu Borstal Schools Act, fell for consideration before a Division Bench of this Court (Madurai Bench) in the case of "Bindu alias Bindu Selvakumar and another vs. The Home Secretary, The Government of Tamil Nadu, Fort St.George, Chennai-600 009 and 2 others" in H.C.P.(MD).Nos.266 and 267 of 2008, dated 27.6.2008, wherein the Division Bench held as follows: "12. .... .... ..... 4. No Habeas Corpus Petitions alleging illegal detention can be filed merely on the ground that the person sentenced to imprisonment claims that he will be entitled to the benefits of Borstal Schools Act, since under the Act, the Court may send adolescent offender to prison. It is merely a question of discretion whether they should go to Borstal Schools instead. Therefore the detention or sentence of imprisonment to an adolescent offender is perse not illegal. Therefore we hold a habeas corpus petition is not maintainable." 8. In view of the observations as made by us, while we find no merits in the present case, in view of the judgment of the Division Bench of this Court as cited above, we hold that the present Habeas Corpus Petition is also not maintainable, which is accordingly dismissed. Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ cs To 1. The Superintendent, The State Represented by Central Prison, Puzhal, Chennai. 2. The Officer-in-charge, Borstal School, Chennai. 3. The Judicial Magistrate, Kancheepuram. 4. -do- through The Chief Judicial Magistrate, Kancheepuram. 5. The Public Prosecutor, High Court, Madras. Order in H.C.P.No.2121 of 2008 CK (CO) A.S./06.07.2009 https://hcservices.ecourts.gov.in/hcservices/