*THE HON’BLE Ms. JUSTICE G. ROHINI +WRIT PETITION NO.13490 OF 2003 % 13/03/2006 # R. Krishna … Petitioner Vs $ The Govt. of Andhra Pradesh, rep. by its Principal Secretary Home (Prisons-B2) Department, Secretariat, Hyderabad. … Respondent < Gist > Head Note: ! Counsel for the petitioner : Sri S.R. Sanku ^ Counsel for the respondent : Govt. Pleader for Home Cases referred : 1963 (2) An.W.R. 479 2 1992 (1) ALT 644 (D.B.) 3 (1997) 8 Supreme Court Cases 720 4 (1981) 4 Supreme Court Cases 149 5 (1989) 3 Supreme Court Cases 1 THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.13490 OF 2003 DATED: 13th MARCH, 2006. Between: R. Krishna … Petitioner And The Govt. of Andhra Pradesh, rep. by its Principal Secretary Home (Prisons-B2) Department, Secretariat, Hyderabad. … Respondent THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.13490 OF 2003 ORDER : The petitioner is the father of one R.Manoj Kumar who is undergoing life imprisonment in the Central Prison, Cherlapalli, R.R. District. This writ petition is filed seeking a Mandamus declaring the action of the State Government in declining to transfer the son of the petitioner from Central Prison, Cherlapalli to a Borstal School as arbitrary and illegal. It is not in dispute that the son of the petitioner R. Manoj Kumar was convicted by the Court of V-Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad in Sessions Case No.395 of 1999 by Judgment dated 14-9-2001 for the offence under Section 302 of I.P.C. and was sentenced to undergo rigorous imprisonment for life. It is also not in dispute that the son of the petitioner was born on 1-7-1981 and thus he was below 21 years of age at the time of conviction. The learned Sessions Judge while convicting the accused, though took note of the said aspect, held that since the accused was sentenced to life imprisonment under Section 302 of I.P.C., Section 8 of the A.P. Borstal Schools Act, 1925 has no application and therefore even though he is an adolescent offender, he cannot be sent to a Borstal School. Aggrieved by the same, the petitioner filed W.P.No.22663 of 2002. The said writ petition was dismissed by this Court observing that the convict should have preferred a criminal appeal against the judgment in S.C.No.395 of 1999. Since by that time an appeal, being Criminal Appeal No.1652 of 2001 was already preferred against the judgment in S.C.No.395 of 1999 and the same was pending in this Court, a Miscellaneous Petition was moved seeking a direction to transfer the son of the petitioner to a Borstal School. The said Appeal as well as Miscellaneous Petition were disposed of by the Division Bench on 10-4-2003 confirming the conviction and sentence, however recommending the Government of A.P. to take appropriate action with regard to transferring the petitioner’s son to a Borstal School and pass appropriate orders in accordance with law within a period of 15 days from the date of receipt of judgment. In pursuance thereof, the respondent herein passed an order dated 20-5- 2003 holding that the son of the petitioner cannot be sent to a Borstal School since he attempted to commit rape on a girl aged about 8 years and also murdered her. The said order dated 20-5-2003 is under challenge in this writ petition. I have heard the learned Counsel for the petitioner as well as the learned Government Pleader appearing for the respondent. For proper appreciation of the controversy involved in the writ petition, it would be appropriate to note the relevant provisions under the A.P. Borstal Schools Act, 1925 (for short, ‘the Act’). Under Section 2(1) of the Andhra Pradesh Borstal Schools Act, 1925, ‘adolescent offender’ has been defined as under: “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 106 or 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 but not more than 21 years of age.” Section 8 of the Act which deals with the power of Court to pass sentence of detention in Borstal school and Section 10-A of the Act which deals with the power of State Government to transfer offenders sentenced to transportation to Borstal School are as under : “ 8. Power of court to pass sentence of detention in Borstal School. Where it appears to a Court having jurisdiction under this Act that an adolescent offender should, by reason of his criminal habits or tendencies, or association with person of bad character, be subject to detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime, it shall be lawful for the Court, in lieu of passing a sentence of imprisonment, to 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, but in no case extending beyond the date on which the adolescent offender will, in the opinion of the court, attain the age of twenty three years.” 10-A. Power of State Government to transfer offender sentenced to transportation to Borstal Schools: The State Government may, if satisfied that any offender who has been sentenced to transportation either before or after the passing of the Madras Borstal Schools (Amendment) Act, 1939, and who at the time of conviction was not less than 16 but not more than 21 years of age, might with advantage be detained in a Borstal School, direct that such offender shall be transferred to a Borstal School, there to serve the whole or any part of the unexpired residue of his sentence. The provisions of this Act shall apply to such offender as if he had been originally sentenced to detention in a Borstal School. An order may be made under this Section notwithstanding that the sentence of transportation has been subsequently commuted into a sentence of imprisonment. (2) Notwithstanding anything contained in Section 8, the term of detention of an offender who is transferred to the Borstal School under sub-section (1) shall be for a minimum period of two years.” The definition of adolescent offender as defined under Section 2(1) of the Act shows that the age of the accused at the time of the conviction has to be taken into consideration and if as on that date the offender is not less than 16 years, but not more than 21 years of age, he shall be considered as an adolescent offender. A perusal of Sections 8 and 10-A of the Act makes it clear that whereas Section 8 of the Act deals with the power of Court to pass sentence of detention in a Borstal School which requires to be exercised at the time of conviction, the State Government under Section 10-A of the Act is empowered to transfer the offenders sentenced to transportation to a Borstal School. A Division Bench of this Court in PUBLIC PROSECUTOR (A.P.) v. MOHANRAO 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-a-vis Section 302 of I.P.C. under which lawful sentence that can be passed to a convicted person 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 A.P. vs. 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 MOHANRAO’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. The relevant portion of the impugned order dated 20-5-2003 may be extracted hereunder : “In pursuance of the orders of the Hon’ble High Court of A.P. in its judgment dated 27-2-2003 the Government have carefully examined the case in terms of Section 10 of the Borstal Schools Act, 1925 and considered that the age factor as well as the nature of the offence which speaks of the mentality of the convict is to be taken into account as only those considered fit for reformative treatment may be committed to Borstal School. Whereas those convicts with moral turpitude and who have committed preplanned heinous crimes are not considered to be fit for borstal treatment. After careful examination, the Government has decided not to consider the request of transfer of C.No.1732 R. Manoj Kumar to Borstal School as the sentencing court i.e., V-Addl. M.S.J., Mahila Court, Hyderabad in its judgment dated 14-9-2001 in S.C.No.395 of 1999 has observed that even though the accused is an adolescent offender he cannot be sent to Borstal School as the accused attempted to commit rape on Jyothi a girl aged 8 years and also murdered her. Hence, the request is rejected.” A perusal of the above order shows that the State Government had declined to transfer the accused to Borstal School primarily on account of the age of the offender. Though it was further observed that the nature of the offence reflects the mentality of the accused who attempted to commit rape on a girl of aged 8 years and also murdered her, it is to be noted that the son of the petitioner was acquitted of the charge under Section 376 of I.P.C. and the judgment of the Sessions Court in S.C.NO.395 of 1999 to that extent has become final. Hence, as rightly contended by the learned Counsel for the petitioner, the respondent was not justified in refusing to send him to a Borstal School on the said ground. The learned Counsel for the petitioner submits that since admittedly the son of the petitioner was less than 21 years of age as on the date of conviction, though he was convicted for an offence punishable under Section 302 of I.P.C., the respondent ought to have ordered his transfer to a Borstal School so as to afford him an opportunity t o develop in an atmosphere conducive to his reformation. The learned Counsel in support of his submissions, placed reliance upon the decisions of the Supreme Court in BHOLA BHAGAT v. STATE OF BIHAR, JAYENDRA v. STATE OF U.P. and BHOOP RAM v. STATE OF U.P. Though it is not in dispute that the petitioner’s son was less than 21 years of age as on the date of the conviction, the fact remains that as on today he has crossed 23 years. The learned Government Pleader therefore contends that it is not proper to transfer him to a Borstal School at this stage in view of the restriction under Section 8 of the Act that the sentence of detention in a Borstal School in no case shall be extended beyond the age of 23 years. 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. On the other hand, Sub- section (2) of 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. Accordingly, the order impugned is set aside and the Writ Petition is disposed of holding that the son of the petitioner, R. Manoj Kumar, shall be transferred to a Borstal School for detention for a period of two years. The respondent is directed to take the necessary steps forthwith for his transfer from the Central Prison, Cherlapalli to a Borstal School. Writ Petition is accordingly disposed of. No costs. _______________ G. ROHINI, J. Dt. 13 –03-2006. Note:- LR copy to be marked. (B/O) gbs THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.13490 OF 2003 DATED: 13th MARCH, 2006.