In the High Court of Judicature at Madras Dated: 20.03.2009 Coram: The Honourable Mr.Justice ELIPE DHARMA RAO and The Honourable Mr.Justice R.SUBBIAH Habeas Corpus Petition No.1803 of 2008 Arunachalam ..Petitioner Vs. 1. The State represented by the Director General of Prison, Egmore, Chennai-600 008. 2. The Superintendent of Police, Central Prison, Cuddalore. 3. The Inspector of Police, Taluk Police Station, Villupuram, Villupuram District. ..Respondents (Cr.No.47/96) Petition filed under Article 226 of the Constitution of India, for the issuance of a Writ of Habeas Corpus, directing the 1st respondent to produce the detenu Kumaran, son of Ranganathan Gounder, now confined at Central Prison, Cuddalore, before this Court and transfer him to Borstal School, Pudukkottai. For Petitioner .. Mr.R.Sankarasubbu For Respondents .. Mr.N.R.Elango, Addl.P.P., R.SUBBIAH, J., The petitioner is the brother of the detenu, namely, R.Kumaran, who is now confined at Central Prison, Cuddalore, pursuant to the order of conviction dated 18.04.2000 in S.C.No.178 of 1998 passed by the learned Additional Sessions Judge, Villupuram sentencing the detenu to undergo life imprisonment for an offence punishable under Section 302 read with Section 34 IPC https://hcservices.ecourts.gov.in/hcservices/ and also to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six months, which was confirmed by this Court in Criminal Appeal No.373 of 2000 on 12.08.2005. 2. The petitioner has come forward with this habeas corpus petition seeking for a direction to transfer the detenu Kumaran from Central Prison, Cuddalore to Borstel School, Pudukottai, stating that on the date of commission of the offence, namely, 18.01.1996, he was only 16 years old. Since the detenu is an adolescent offender on the date of his conviction for the offence, he is entitled to get relief under the Borstel School Act. Hence, the detention of the detenu Kumaran in the hands of the 2nd respondent is unjust, illegal and violative of Article 21 of the Constitution of India. 3. Heard the learned counsel for the petitioner and the learned Additional Government Pleader for the respondents and perused the materials placed before us. 4. A perusal of the affidavit filed by the petitioner reveals that the detenu was born on 25.04.1980 and on the date of offence, namely, 18.01.1996 he was only 16 years old, but the 3rd respondent filed a report before the trial court stating that the age of the detenu was 21 years on 18.03.1997. But it is pertinent to note that the affidavit is silent to the effect as to whether any dispute was raised by the detenu with regard to the date of birth mentioned in the report filed by the 3rd respondent before the trial court. However, now along with the present petition, the petitioner has filed a transfer certificate issued by the M.R.I.C.R.C.High School, Villupuram, to prove the age of the detenu. The said document shows that the detenu was born on 25.04.1980. 5. Per contra, the 2nd respondent, Superintendent of Police, Central Prison, Cuddalore, filed a counter stating that the detenu was convicted and sentenced to undergo imprisonment for life for the offence punishable under section 302 read with Section 34 IPC and also to pay a fine of Rs.5,000/-, in default to undergo six months rigorous imprisonment, by the learned Additional Sessions Judge, Villupuram in S.C.No.178 of 1998 on 18.04.2000. Subsequently, he was released on bail on 11.07.2000 as per the order passed by this Court in Crl.M.P.No.2833 of 2000 in C.A.No.373 of 2000 dated 11.07.2000. Thereafter, the detenu was recommitted to jail for undergoing the remaining period of sentence since the sentence awarded by the Additional Sessions Judge, Villupuram was confirmed by this Court in the said appeal , on 12.08.2005. He was admitted in Central Prison, Cuddalore on 12.08.2008. In the counter, it is further stated that as per the warrant issued by the learned Additional Sessions Judge, https://hcservices.ecourts.gov.in/hcservices/ Villupuram on 18.04.2000, consequent to conviction and sentence passed in S.C.No.178 of 1998 the age of the detenu was mentioned as 22 years as of the year 2000. But the date of birth of the detenu, as per the transfer certificate dated 04.08.2008, issued by the M.R.I.C.R.C. High School, Villupuram, is 25.04.1980. Since the detenu attained the age of 28 years at the time of admission in the prison on 12.08.2008 to undergo the remaining period of life imprisonment, the prayer of sending him to Borstal School at this stage does not arise and there is no violation of Article 21 of the Constitution of India. Hence, the petition is liable to be dismissed. 6.Learned counsel appearing for the petitioner submitted that in the counter filed by the 2nd respondent, no serious dispute was raised with regard to the age of the detenu. Under such circumstances, based on the document filed along with the petition, namely, transfer certificate, it could be safely inferred that the detenu was only 16 years on the date of commission of offence. Further, the learned counsel appearing for the petitioner invited the attention of this Court to Sections 8 and 10-A of the Madras Borstal Schools Act and pleaded that the detenu, being an adolescent offender on the date of the alleged occurrence, must have been transferred to Borstal School at Pudukottai. 7. Per contra, the learned Additional Public Prosecutor drew the attention of this Court to Section 2(1) of the said Act, which reads as follows: "Adolescent offender" means any person who has been convicted of any offence punishable with imprisonment or who having been ordered to give security under Section 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 in the case ofa boy and not less than 18 in the case of a girl, but not more than 21 years of age in either case". 8. By referring to the above provision of law, the learned Additional Public Prosecutor submitted that even assuming for arguments' sake the date of birth of the detenu as 25.04.1980, on the date of offence, he has not completed 16 years. Therefore, he will not come within the definition of 'adolescent offender' as defined under section 2(1) of Madras Borstal School Act. Under such circumstances, the question of extending the benefit under Madras Borstal Schools Act does not arise. 9. At this juncture, the learned counsel appearing for the petitioner made an alternative plea and submitted that since the https://hcservices.ecourts.gov.in/hcservices/ detenu was less than 16 years on the date of offence, the benefit under Juvenile Justice (Care and Protection of Children) Act, 2000 can be extended to him, since the detenu will fall within the meaning of 'Juvenile' as defined under Section 2(k) of the Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter referred to as 'the Act). Section 2(k) of the said Act reads as follows: "Juvenile" or "child" means a person who has not completed eighteen years of age". 10. In this regard, the learned counsel appearing for the petitioner, by referring to various provisions of the said Act, elaborately argued that when a juvenile was brought before the Court for trial, an enquiry should be made with regard to his age and if he is found to be Juvenile, then he should be sent before the Board constituted under the Act. 11. In this regard, learned counsel appearing for the petitioner relied upon the decisions in Hussainara Khatoon and others ..vs.. Home Secretary, State of Bihar reported in 1980 SCC (Crl.) 23 and Gopinath Ghosh ..vs.. State of West Bengal reported in 1984 SCC (Crl.) 478 in support of his contention, which falls under two folds. (1) The trial against the juvenile detenu by the trial court was without jurisdiction and as such, the same is vitiated in view of the applicability of the Act. (2) If a person is deprived of his life or personal liberty under any procedure which is not "reasonable, fair or just", such deprivation would be violative of his fundamental rights guaranteed under Article 21 of the Constitution of India, and would be entitled to enforce such fundamental rights and secure his release. Thus, the learned counsel for the petitioner alternatively pleaded to extend the benefit of the Act to free himself from the clutches of detention, since the detenu was a juvenile on the date of commission of the offence. When a question was raised with regard to the applicability of the Juvenile Justice (Care & Protection of Children) Act, 2000, for the offence committed in the year 1996, the learned counsel appearing for the petitioner drew the attention of this court to Sections 20 and 64 of the said Act, which read as follows: "20. Special provision in respect of pending cases:- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any https://hcservices.ecourts.gov.in/hcservices/ sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this act that a juvenile has committed the offence. 64. Juvenile in conflict with law undergoing sentence at commencement of this Act: In any area in which this act is brought into force, the State Government or the local authority may direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent a special home or be kept in fit institution in such manner as the State Government or the local authority thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub-section (2) of Section 16 of this Act". 12. Per contra, learned Additional Public Prosecutor submitted that the alternate plea made by the learned counsel for the petitioner to release the detenu by extending the benefit of the Act cannot be entertained in this habeas corpus petition, since the conviction and sentence passed by the Sessions Court are confirmed by this Court in the criminal appeal, and hence this petition is not maintainable. 13. By way of reply, the learned counsel for the petitioner, by referring to the decision reported in 1984 SCC (Crl.) 478 (cited supra) argued that whenever a case is brought before the Court and the accused appears to be aged 21 years or below, before proceeding with the trial or undertaking an inquiry, an inquiry must be made about the age of the accused on the date of the occurrence. The relevant passage from the said judgment is extracted hereunder: "13. Before we part with this judgment, we must take notice of a developing situation in recent months in this Court that the contention about age of a convict and claiming the benefit of the relevant provisions of the Act dealing with juvenile delinquents prevalent in various States is raised for the first time in this Court and this Court is required to start the inquiry afresh. Ordinarily this Court would be reluctant to entertain a contention based on factual averments https://hcservices.ecourts.gov.in/hcservices/ raised for the first time before it. However, the Court is equally reluctant to ignore, overlook or nullify the beneficial provisions of a very socially progressive statute by taking shield behind the technicality of the contention being raised for the first time in this Court. A way has therefore, to be found from this situation not conducive to speedy disposal of cases and yet giving effect to the letter and the spirit of such socially beneficial legislation. We are of the opinion that whenever a case is brought before the Magistrate and the accused appears to be aged21 years or below, before proceeding with the trial or undertaking an inquiry, an inquiry must be made about the age of the accused on the date of the occurrence. This ought to be more so where special acts dealing with juvenile delinquent are in force. If necessary, the Magistrate may refer the accused to the Medical Board or the Civil Surgeon, as the case may be, for obtaining creditworthy evidence about age. The Magistrate may as well call upon accused also to lead evidence about this age. Thereafter, the learned Magistrate may proceed in accordance with law. This procedure, if properly followed, would avoid a journey upto the Apex Court and the return journey to the grass-root court. If necessary and found expedient, the High Court may on its administrative side issue necessary instructions to cope with the situation herein indicated". 14. Citing the said decision, the learned counsel for the petitioner contended that though a plea with regard to applicability of the Juvenile Act was not raised before the trial court when the detenu was brought before the Court, an enquiry should have been conducted by the Magistrate with regard to his age and he should have been sent before the Board Constituted under the Act. Under such circumstances, it cannot be said that since a plea under the Act was not raised before the trial court, the prayer is not liable to be considered. Further, the learned counsel for the petitioner contended that the claim of juvenility can be raised at any stage of the proceedings and even after disposal of the case. In this regard, he placed reliance on the judgment reported in Usman ..vs..State of Uttar Pradesh(2008(3) Crimes 469(All.). In that case, the detenu has filed an application before the High Court seeking to recall the sentence imposed on him in Criminal Appeal No. 888 of 2004 by the order dated 11th October 2004, on the ground that he was juvenile in conflict with law, on the date of the offence and considering the provisions of law comprised under the Act of 2000 read with the Juvenile Justice Act,1986 he could not have https://hcservices.ecourts.gov.in/hcservices/ been sentenced for life imprisonment or for death but should have been ordered to be produced before the Board, in terms of the provisions of law for necessary order in terms of Section 15 of the Act. In that case, considering the position of the Act, the sentence imposed on him was recalled and quashed. Based on the said judgment, it is contended by the learned counsel for the petitioner that it is incorrect to state that since no plea was raised at that stage, extending the benefit cannot be considered. 15. Learned Additional Public Prosecutor contended that the plea that the detenu was the juvenile at the time of committing the offence, was not raised before the trial court. Now at this length of time, that too, after the conviction was confirmed by this Court in the criminal appeal, he cannot plead for the benefit under the Act in this Habeas corpus petition. Since the offence had been committed in the year 1996, the Act is not applicable as he has not completed 18 years on 01.04.2001 i.e.the date on which the Act came into force. With regard to this, learned Additional Public Prosecutor relied upon a judgment reported in Pratap Singh ..vs.. State of Jharkhand and another ( (2005)3 SCC 551=2005(1) SCC 742). With regard to the applicability of the said judgment, the view of H.K.Sema, J., in para Nos.27 to 32 is as follows: "27. The striking distinction between the 1986 Act and the 2000 Act is with regard to the definition of juvenile. Section 2(h) of the 1986 Act defines juvenile as under: "2.(h) 'juvenile' means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years;" Section 2(k) of 2000 Act defines juvenile as under: "2.(k) 'juvenile' or 'child' means a person who has not completed eighteenth year of age;" 28. Thus, the striking distinction between the 1986 Act and the 2000 Act is that under the 1986 Act a juvenile means a male juvenile who has not attained the age of 16 years and a female juvenile who has not attained the age of 18 years. In the 2000 Act no distinction has been drawn between the male and female juvenile. The limit of 16 years in the 1986 Act has been raised to 18 years in the 2000 Act. In the 2000 Act wherever the word "juvenile" appears the same will now have to be taken to mean a person who has not completed 18 years of age. https://hcservices.ecourts.gov.in/hcservices/ 29. Section 3 provides as follows: "3. Continuation of inquiry in respect of juvenile who has ceased to be a juvenile- Where an inquiry has been initiated against a juvenile in conflict with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile or a child". Thus, even where an inquiry has been initiated and the juvenile ceases to be a juvenile i.e. crosses the age of 18 years, the inquiry must be continued and orders made in respect of such person as if such person had continued to be a juvenile". 30. Similarly, under Section 64 where a juvenile is undergoing a sentence of imprisonment at the commencement of the 2000 Act he would, in lieu of undergoing such sentence, be sent to a special home or be kept in a fit institution. These provisions show that even in cases where a mere inquiry has commenced or even where a juvenile has been sentenced the provisions of the 2000 Act would apply. Therefore, Section 20 is to be appreciated in the context of the aforesaid provisions. 31. Section 20 of the Act as quoted above deals with the special provisions in respect of pending cases and begins with a non obstante clause. The sentence "notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act came into force" has great significance. The proceedings in respect of a juvenile pending in any court referred to in section 20 of the Act or relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term "any court" would include even ordinary criminal courts. If the person was a "juvenile" under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or the girl had crossed 18 years. This shows https://hcservices.ecourts.gov.in/hcservices/ that Section 20 refers to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that court as if the 2000 Act has not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile. 32. In this connection it is pertinent to note that section 16 of the 2000 Act is identical to Section 22 of the 1986 Act. Similarly Section 15 of the 2000 Act is in pari materia with Section 21 of the 1986 Act. Thus, such an interpretation does not offend Article 20(1) of the constitution and the juvenile is not subjected to any penalty greater than that which might have been inflicted on him under the 1986 Act". 16. By relying upon the said judgment, learned Additional Public Prosecutor contended that when it is the case of the petitioner that the detenu was less than 16 years old on the date of offence namely, 18.01.1996, it is pertinent to note that as on 01.04.2001 he had crossed the age of 18. Therefore, the petitioner cannot seek any benefit under the Act, which came into force much later from the date of offence. Therefore, the learned Additional Public Prosecutor contended that the petitioner cannot seek remedy either under the Borstal Schools Act or under the Act of 2000. 17. In view of the submissions made by both sides, now the point that has to be considered in this case is whether the detenu is entitled to get benefit under the Act and if so, whether such a benefit could be granted to the petitioner in this habeas corpus petition? 18. We have carefully considered the submissions and rival submissions made on either side. Since the learned counsel for the petitioner has not pressed the original prayer, namely, to transfer the detenu to the Borstal School from central Prison, Cuddalore, in view of the definition found in the Borstal Schools Act, we are not dealing with the same. Now, this Court is concerned only with the alternative prayer, namely, extension of benefit under the Act to the detenu. Though the learned counsel for the petitioner has relied on plethora of cases, on a careful consideration of those cases, we find that the benefit was extended by some way or other to the detenus while dealing https://hcservices.ecourts.gov.in/hcservices/ with the criminal appeals and not in the petition filed under Article 226 of the Constitution of India. On going through the decision cited by the learned Additional Public Prosecutor, namely, (2005)3 SCC 551(cited supra), we are of the view that it is squarely applicable to the facts on hand. From the facts of the case, it could be safely inferred that as on 01.04.2001, the detenu had crossed the age of 18. Therefore, he cannot derive the benefit for the offence committed in the year 1996. Further, it is very clear that the benefit could be extended by applying section 20 of the Act only to the accused, who are within the age of 18 on the date of enforcement of Act namely 01.04.2001. Therefore, by relying upon the said judgment, we hold that the detenu cannot derive the benefit under the Act. 19. With regard to the maintainability of this petition, we are of the opinion that only if the confinement is illegal, the same can be questioned under the writ jurisdiction by way of habeas corpus petition. But in this case, the detenu was sent to jail pursuant to the judgment passed by the Sessions court, which was confirmed by this Court and thus he is only a convict prisoner, serving the sentence awarded to him by a Court of law. Under such circumstances, at the maximum, it can be contended that the trial conducted by the Sessions Court jointly implicating the Juvenile along with the co-accused is an irregular trial so far as the detenu is concerned, and in the absence of any opinion of the court of appeal a failure of justice has in fact been occasioned and thus much prejudice had been caused to the detenu. In the absence of any plea raised before the trial court as well as the appellate court in respect of the finding by the trial court that the detenu had crossed the age of 16 at the time of the trial on 18.03.1997 and further since the prayer in this petition is confined only to