Supreme Court of India
HAVA SINGHversusSTATE OF HARYANA & ANR.
- Citation
- 1987 INSC 223
- Decided
- 21 August 1987
- Disposal
- Case Allowed
- Bench
- A P SEN
Holding
A Borstal detainee who has completed the maximum seven‑year detention under Section 5 of the Punjab Borstal Act must be released, and cannot be transferred to a regular jail or be subject to paragraph 516‑B of the Punjab Jail Manual absent a finding of incorrigibility.
Summary
Haya Singh, aged about 18, was convicted of murder under sections 302/34 IPC and sentenced to life imprisonment. Because he was under 21, he was sent to a Borstal Institution under the Punjab Borstal Act, 1926. After turning 21 he was transferred to a district jail and continued to serve his sentence. He filed a writ petition seeking premature release, invoking the maximum seven‑year detention provision of Section 5 of the Punjab Borstal Act and paragraph 516‑B of the Punjab Jail Manual. The Court held that Section 5 allows detention for only two to seven years and, upon expiry, the inmate must be released unless declared incorrigible under Section 20, which did not apply here; consequently the petitioner was entitled to release after serving the full seven‑year term, and paragraph 516‑B was inapplicable. The petition was allowed and the respondent was directed to release the petitioner forthwith.
Issues considered
- The legality of transferring a Borstal inmate to a regular jail after attaining the age of 21 and completing the maximum detention period under Section 5 of the Punjab Borstal Act.
- Whether paragraph 516‑B of the Punjab Jail Manual can be invoked for premature release of a Borstal detainee.
- Whether the petitioner is entitled to release after serving the maximum seven‑year detention prescribed under the Punjab Borstal Act.
Legislation cited
- Code of Criminal Procedure, 1973s. 30, s. 433-A
- Punjab Borstal Act, 1926s. 20, s. 2(1), s. 2(2), s. 5
- Punjab Jail Manuals. 516-B
Subjects
life imprisonmentBorstaladolescent offenderpremature releaseSection 5paragraph 516-BincorrigibleSection 433-Areformation
Judgment
}
HAYA SINGH
,.. A
STATE OF HARYANA &'ANR
AUGUST 21, 1987.
,. i
[A.P. SEN AND B.C. RAY, JJ.]
Punjab Borstal Act, 1926-pre-mature release of convict after
seven years' detention under provisions of-Section 5.
B
- '-(
The petitioner, aged about 18 years, was convicted for an offence
u/s 302/34 I.P.C. and sentenced to life imprisonment by judgment and
order dated 22nd May, 1980, and being admittedly below 21 years of
c
age at the time of commission of the offence, was sent to Borstal Institu-
tion in accordance with the provisions of the Punjab Borstal Act, 1926.
The Petitioner filed this writ petition in this Court, stating that
-'( the total period of detention under-gone by him, together with the D
remissions earned· by him, came to over ten years, and he was entitled to
be released both under the Punjab Borstal Act as well as under
paragraph 516-B of the Pnbjab Jail Manual. The petitioner, there-
fore, prayed for his premature release as provided under the Punjab
Borstal Act and the paragraph 516-B of the Punjab Jail Manual.
'<i .. E
On behalf of the respondents, a counter-affidavit was filed by the
"""' Superintendent, Rohtak District Jail, where the petitioner was first sent
after his conviction and sentence u/s 302/34 I.P.C., and where he was
'( brought again from the Borstal Institute in connection with another
case and was now being kept, as he had attained the age of 21 years.
F
Allowing the writ petition, the Court,
HELD: The petitioner was sent to Borstal Institute at Hissar as
he was admittedly adolescent at the time of his conviction, and was
subsequently transferred to the District Jail at Rohtak to undergo the
\ sentence of imprisonment for life. [1064C] G
It appears from the objects and reasons of the Punjab Borstal Act,
1926, that the object of the Act is to provide for the segregation of the
adolescent prisoners from those of more mature age, and their subse-
quent training in separate Borstal Institutions meant for detaining the
adolescent offenders and for imparting to them industrial training and H
1061
1062 SUPREME COURT REPORTS [1987] 3 S.C.R.
A subjecting them to such disciplinary and moral influence as will con-
duce to their reformation. [I064C-E]
Under section 5 of the Act above-said, either a Sessions Judge or a
Magistrate of first class or a Magistrate specially empowered under
section 30 of the Code of Criminal Procedure, after convicting any male
B person, less than twenty-one years of age, of an offence punishable with t
imprisonment for life or transportation or other rigorous imprison-
ment, or in the case of a convict who is ordered to give security for good ~
behaviour and he fails to give such security, may in lieu of passing a
sentence of transportation or rigorous imprisonment pass an order of
detention which shall not be less than two years and more than seven
years when an order is passed by a Court of Sessions or a Magistrate.
c The petitioner, when he was convicted u/s 302/34 I.P.C. and s~ntenced
'}--
-
to imprisonment for life, was adolescent being less than twenty-one
years of age and was sent to.the Borstal Institute in accordance with the
provisions of the Punjab Borstal Act, 1926. On his attaining the age of
about twenty-one years, he was transferred back to the jail. There is no
D provision except section 20 in the. said Act for transferring back an
).-
adolescent convict on his attaining !he age of twenty-one years from the
Borstal Institute to jail for undergoing the unexpired term of imprison-
men!. On the other hand, under section 5 of the Act an adolescent
'
convict under twenty-one years of age, after the expiry of his period of
detention, has to be released from detention and he is not to be transfer-
E red to jail for undergoing the unexpired period of his sentence of impri- __w
sonment. Section 20 empowers the State Government to commute the
residue of the term of detention of an inmate of the Borstal Institute,
and also order his transfer to any jail in Punjab to complete the said
term of imprisonment when such an inmate is reported to be incorrigi-
hie or is exercising bad influence on the other inmates of the Institution
y
-
F or has committed a major Borstal Institution offence as provided in the
rules. There was nothing to show that the petitioner had been even
found to be incorrigible or to be exercising a bad influence on the other
inmates of the Institution, etc., as stated above, and the State Govern-
men! had not passed any order for his transfer to the jail as mentioned
above. [1065E-H; 1066A, D-F]
G ./
On a conspectus of the decision of this Court in the State of
Andhra Pradesh v. Vallabhapuram Rani, [1984] 4 S.C.C. 410, and on a
consideration of the facts and circumstances of the case, the only con-
clusion that followed was that the petitioner, who had already under-
gone actual imprisonment for seven years, was entitled to be released
H from detention and imprisonment. Paragraph 516-B of the Punjab Jail
HAYA SINGH v. STATE OF HARYANA [RAY, J.] 1063
Manual was not applicable in this case. The Court directed the respon- A
dents to release the petitioner from imprisonment.forthwith. [1067C-D; G] •
State of Andhra Pradesh v, Vallabhapuram Rani, [19.84] 4 S.C.C.
410, referred to.
ORIGINAL JURISDICTION: Writ Petition (Criminal) No. B
668 of 1986.
(Under Article 32 of the Constitution of India).
- R.K. Jain and R.P. Singh for the Petitioner.
C.V.S. Rao for the Respondents.
• c
The Judgment of the Court was delivered by
B.C. RAY, J. The petitioner who was aged about 18 years along
with one Subeh Singh was involved in a case of murder of one Ranbir D
Singh and he was convicted for an offence Us 302 34 l.P.C. and
sentenced to life imprisonment by judgment and order dated 22nd
May, 1980. The petitioner being admittedly below 21 years of age at
the time of alleged commission offence was sent to Borstal Institution
in accordance with the provisions of Punjab Borstal Act, 1926. It has
'11.. been stated that the petitioner has already undergone a period of E
about 6 years, 10 months and 11 days detention in jail and together
with remissions earned by him it comes to over 10 years. It has been
further stated that he is entitled to be released both under the Punjab
Borstal Act as well as under paragraph 516-B of the Punjab Jail
Manual and has therefore prayed for his pre-mature release as pro-
vided under the Punjab Borstal Act and also under paragraph 516-B of F
the Punjab Jail Manual. In the counter-affidavit filed on behalf of the
respondent sworn by one Shri Ram Chander Sarwan, Superintendent
of District Jail at Rohtak it has been stated that the petitioner was
convicted and sentenced to life imprisonment U;s 302 '34 l.P.C. on
22.5.1980 by the Sessions Judge, Rohtak and he was sent to District
). Jail, Rohtak to undergo the sentence passed upon him. It has been, G
further stated that at the time of conviction he was 19 years of age and
as such he was sent to B.I. & J. Jail, Hissar. He was transferred back to
this Jail (Rohtak District Jail) on 16.12.1981 for trial 'in IInd case (FIR
No. IIl/78 U/s 452/325/34 I.P.C.). He was acquitted in this Ilnd case
and as he was about 21 years of age so he was kept in the Jail to
undergo the life imprisonment imposed upon him on 22.5.1980. It has H
1064 SUPREME COURT REPORTS [1987] 3 S.C.R.
.J
A .. been further averred that after the amendment of the Criminal Proce-
. dure Code the petitioner being sentenced to life imprisonment has to
undergo 14 years of substantive sentence U Is 433-A of the Code before
his case can be considered for pre-mature release. The detail of sen-
tence undergone by the petitioner as on 22.12.1986 was also given in
the said affidavit wherefrom it appears that he has already undergone ·t
B 7 years, 3 months and 3 days actual sentence upto 22.12.1986. It has
therefore been stated that the petitioner having not undergone 14 ~
years of actual sentence, he can not be released pre-maturely.
It is evident from the averments made in the writ petition as well
as in the said counter-affidavit that the petitioner who was admittedly
adolescent at the time of his conviction was sent to Borstal Institute at
c 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 Pun jab Borstal Act, 1926 that
the object of the Act is to provide for segregation of adolescent prison-
ers from those of more mature age, and their subsequent training in
D separate institutions. These Borstal Institutions are meant for detain-
ing 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 2( 1) of Punjab Borstal Act, 1926. Sub-section (2)
-
of section 2 defines 'detained' as detained in and 'detention' as deten-
E tion 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
F 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 his criminal habits or tendencies or
G
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
H two years and shall not exceed seven years when the order
HAYA SINGH v. STATE OF HARYANA [RAY, J.] 1065
is passed by a court of sessions or a Magistrate specially A
empowered under Section 30 of the Code of Criminal Pro-
cedure, 1898, and shall not be less than two years nor ex-
ceed three years, when the order is passed by a Judicial
Magistrate of the first class not so empowered.
(2) When any Judicial Magistrare not empowered to B
pass such order, is of opinion that an offender convicted by
him is a person in respect of whom such order should be
passed in accordance with the provisions of sub-section ( 1),
he may, without passing any sentence, record such opinion
- and submit his proceedings and forward the accused to the
Chief Judicial Magistrate to whom he is subordinate.
c
(3) The Chief Judicial Magistrate to whom the pro-
ceedings are so submitted may make such further enquiry
(if any) as he may deem fit and pass such order for the
detention of the offender or such other sentence or order,
as he might have passed if the trial had been held by him D
from its commencement."
Thus it is manifest from Section 5 of the said Act that either a
Sessions Judge or a Magistrate of first class or a Magistrate specially
empowered under Section 30 of the Code of Criminal Procedure after
-
.~
,._ convicting any male person who is less than twenty-one years of age, of
1
an offence punishable with imprisonment for life or transportation or
other rigorous imprisonment or a convict is ordered to give security for
good behaviour and fails to give such security, may in lieu of passing a
sentence of transportation or rigorous imprisonment pass an order of
E
detention which shall not be less than two years and shall not exceed
seven years when an order is passed by a court of sessions or a Magis- F
trate specially empowered under the Code of Criminal Procedure. The
petitioner who was adolescent admittedly being less than twenty-one
years of age at the time of his conviction though convicted U /s 302/34
l.P.C. 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 trans- G
ferred back to the Jail. There is no provision except section 20 under
the said Act for transferring back an adolescent convict on his attain-
ing the age of twenty-one years from the Borstal Institute to Jail for
undergoing the unexpired term of imprisonment. On the other hand
on a plain reading of section 5 it is clear that the adolescent convict
under twenty-one years of age after expiry of his period of detention H
1066 SUPREME COURT REPOllTS [1987] 3 S.C.R.
A has to be released from detention and he is not to be transferred to Jail
for undergoing the unexpired period of his sentence of imprisonment.
Section 20 of the said Act is in the following terms:-
"20. Incorrigibles.-Where an inmate is reported to the
State Government by the visiting committee to be incorri- -~
B gible or to be exercising a bad influence on the other
inmates of the institution or is convicted under section 19 of
this Act or is reported by the Superintoodent to have com-
"'f
milted an offence which has been declared to be major
c
Borstal Institution offence by rules made by the State
Government in pursuance of the provisions of sub-section
(14) of section 34 of this Act, the State Government may
~·
-
commute the residue of the terms of detention to such term
of imprisonment of either description not exceeding such
residue as the State Government may direct, and may
order the transfer of the inmate to any jail in Punjab in
order to complete the said term of imprisonment."
D ).
This section empowers the State Government to commute the
residue of the terrn of detention of an inmate in Borstal Institute to
such terrn of imprisonment of either description not exceeding the
residue as the State Government may direct and also to order transfer
-
of the inmate to ariy jail in Punjab in order to complete the said terrn of
E imprisonment when such an inmate is reported to be incorrigible or his .J.i
exercising bad influence on the other inmates of the Institution or such
an inmate has committed a major Borstal Institution offence as pro-
vided in the rules. There is nothing to show that the petitioner was
y -:
ever found to be incorrigible or to be exercising a bad influence on the
other inmates of the Institution or is found to have committed any
F major Borstal Institution offence and the State Government has not
passed any order for his transfer' from the Borstal Institution to Jail for
undergoing the residue of his term of imprisonment.
This Court while considering an idential case in the State of
Andhra Pradesh v. Vallabhapuram Ravi, (1984) 4 S.C.C. 410 has ./
G observed that "a person detained in a Borstal School under section
10-A has to be released after he has served the full terrn of 5 years of
detention or on his completing 23 years of age. He cannot be retrans-
ferred 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 fot the purpose of reformation and re-
H habilitation of such offenders." It is to be noted in this connection that
HAYA SINGH v. STATE OF HARYANA [RAY, J.[ 1067
sentence of detention .is passed in lieu of sentence of imprisonment A
which may have been passed. Hence the detention order U /s 5 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
'1 detained by an order under Section 10-A of the Act. Section 433-A of B
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 impris-
onment for life to short periods like five to six years." c
On a conspectus of the aforesaid decision as well as on a consi-
deration of the facts and circumstances the only conclusion follows
that the petitioner who has already undergone actual imprisonment for
seven years is entitled to be released from detention and from impris-
~ onment. Paragraph 516-B of the Punjab Jail Manual is not applicable
D
in this case as the petitioner who was an adolescent convict below
twenty-one years of age was sent to the Borstal Institute at Hissar for
detention in accordance with the provisions of Section 5 of the Punjab
Borstal Act, 1926. He being convicted by the Sessions Judge the
maximum period of detention as prescribed by the Act is seven years.
'-4. We have already said hereinbefore that such an inmate of the Borstal E
...._ Institute cannot be transferred to Jail on the ground that he has
attained the age of twenty-one years as the said Act does not provide
for the same. The only provision for transfer to Jail is in the case of
"( incorrigible inmate or inmates convicted of major Borstal Institution
offence. The petitioner who was· detained in a Borstal Institute is
entitled to be released and to be set free as he has already undergone F
detention for a period of seven years. The Writ Petition is therefore
allowed. The respondents are directed to release the petitioner from
imprisonment forthwith. There will be no order as to costs.
)S.L. Petition allowed.
'
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