TMI Blog1984 (9) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to an incident which took place when he was still in his teens, he was convicted of an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life on April 29, 1980 in the Sessions Case No. 51 of 1980 on the file of the Sessions Judge, Guntur in the State of Andhra Pradesh. On September 12, 1980 the State Government of Andhra Pradesh on being satisfied that it would be to the advantage of the respondent if he was transferred to a Borstal School made an order under section 10-A of the Act in G.O. Rt. No. 2394 Home (Prisons-B) Department dated September 12, 1980 directing that he should be detained in a Borstal School to serve the unexpired portion of the sentence till he attained the age of 23 years. Accordingly he was transferred to the Borstal School at Visakhapatnam on October 14, 1980. The respondent was classified as a Special Star Grade Inmate which was the highest classification on the basis of industrious and good conduct under section 19-C of the Act. Since he was not released on his attaining 23 years of age on April 28, 1983 in accordance with the decision of the High Court of Andhra Pradesh in Bondili Jagannath Singh v. The Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect a cure, and not to class the offender offhand and without experiment with the adult professional criminal (See Encyclopaedia Britannica, 1962 Edn., Vol. III at page 923). This system of treatment of juvenile or adolescent offenders came to be called the 'Borstal System' after the village of Borstal in Kent (England) where the early experiments on boys between the ages of 16 and 21 were carried out in an old convict prison before the passing of the above mentioned Acts of 1908. The Borstal System subsequently became popular in all the Commonwealth countries and was introduced through laws passed for the purpose of achieving its object. One such law is the Act which was enacted in the year 1925. Its object was to make provision for the establishment and regulation of Borstal Schools for detention and training of adolescent offenders. The relevant provisions of the Act i.e. sections 2 (1) and (2), 8 and 10-A are extracted below for ready reference: 2. In this Act, unless there is anything repugnant in the subject or context:- 1. Adolescent offender means any person who has been convicted of any offence punishable with imprisonment or who having been ordered to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erve 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. Any person who is not less than 16 years nor more than 21 years of age on the date of his conviction of an offence punishable with imprisonment or who having been ordered to give security under section 106 or section 117 of the Code fails to furnish such security is considered an adolescent offender under the Act. When such an offender is convicted of an offence punishable with imprisonment it is the duty of the court convicting him to consider whether having regard to his criminal habits or tendencies or association with persons of bad character he should be detained for such period and under such instruction and discipline as appears most conducive to his reformation and repression of crime. If the Court considers that it is desirable to do so it may in substitution of the sentence of imprisonment pass a sentence of detention in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person in a Borstal School beyond the age of twenty three years, nor can he be sent back to the prison except under section 14 of the Act. Section 14 of the Act reads thus: 14. Transfer of incorrigibles etc. to prisons. Where a person detained in a Borstal School is reported to the State Government by the Superintendent of such School to be incorrigible or to be exercising a bad influence on the other inmates of the school or in the case of person directed to sent to a Borstal School before the commencement of the Madras Borstal School (Amendment) Act, 1966, to be over twenty three years of age, the State Government may commute the unexpired residue of the term of detention to such term of imprisonment of either description as the State Government may determine, but in no case exceeding: (a) such unexpired residue, or (b) the maximum period of imprisonment fixed for the offence or the failure to give security as the case may be, or (c) the maximum period of imprisonment which the Court that tried him had authority to award under the Code of Criminal Procedure, 1898, whichever is shortest. While construing section 14 of the Act we may omit the unnecessary words &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s convicted under section 302 of the Indian Penal Code and sentenced to transportation for life observed thus: In this case, we are satisfied that the 1st accused is not a hardened criminal. He was a student of Sri Venkateswara College and was below 21 years at the time he was convicted of the offence. We have also found that he shot the deceased when he abused him and his father presumably when they questioned him about his conduct in insulting his mother. The act was done by an young man of good antecedents in an emotional state. In our view. s. 10-A, Borstal Schools Act is really intended to govern the case of such accused. We, therefore, while sentencing the Ist accused to transportation for life, recommend his case to the Government to take action under S. 10-A and to commit him to the Borstal School for such period as they think fit. The above decision shows that the High Court of Andhra Pradesh was of the view that on making an order under section 10 A of the Act, the State Government could commit a person sentenced to transportation for life to a Borstal School for such period as it thought fit. The High Court of Madras has also passed similar orders in In re. Krish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object of establishing a Borstal School. The Court should as far as possible avoid a construction which will make the legislation futile. The second reason is that the words 'as if' appearing in the second sentence in section 10-A make it a deeming provision and such deeming provision should in law be carried to its logical end. This Court while construing such deeming provision has adopted and applied in a number of cases the rule of construction expounded by Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council in the following words: If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. It may also be noted that apart from the claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question whether on the coming into force of section 433 A of the Code, a person who had been sentenced to imprisonment for life on being convicted of an offence for which death is also prescribed as a punishment and who being a person not below 16 nor above 21 years of age had later on been directed by the State Government under section 10-A of the Act to be detained in a Borstal School is entitled to be released on his completing 23 years of age without any regard to the provision in section 433 A of the Code which insists that a person who is sentenced to imprisonment for life on being convicted of such an offence should actually undergo imprisonment for a minimum period of fourteen years. Section 433 A of the Code which came into force on December 18, 1978 reads thus: 433 A. Restriction on powers of remission or commutation in certain cases-Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of List II of the Seventh Schedule to the Constitution which reads as 4. Prisons, reformatories, Borstal institutions and other institutions of a like nature, and persons detained therein... also makes a distinction between a person and a Borstal institution. Section 433 A of the Code refers to a person who is actually undergoing imprisonment. As soon as an order is made under section 10-A of the Act in respect of a person who is sentenced to imprisonment for life and he is sent to a Borstal School pursuant thereto, he ceases to be a prisoner undergoing imprisonment. As observed earlier he would be a detenu in a Borstal School and the provisions of section 8 of the Act will have to be given their full effect in his case also. Under section 8 of the Act the person detained in a Borstal School can be kept there for a maximum period of five years and in no case after he has attained 23 years of age. I have already noticed that there is no provision for sending him back to prison except section 14 of the Act which will not be applicable to a person against whom no report is made by the Superintendent of a Borstal School as stated therein. If section 14 of the Act is inapplicable the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a lifer is concerned. No release by reduction or remission of sentence is possible under the corpus juris as it stands, in any other way. The legislative power of the State under Entry 4 of List II, even if it be stretched to snapping point, can deal only with Prisons and Prisoners, never with truncation of judicial sentences. Remission by way of reward or otherwise cannot out down the sentence as such and cannot, let it be unmistakably understood, grant final exit passport for the prisoner except by Government action under s. 432 (1). The topic of Prisons and Prisoners does not cover release by way of reduction of the sentence itself. That belongs to Criminal Procedure in Entry 2 of List III although when the sentence is for a fixed term and remission plus the period undergone equal that term the prisoner may win his freedom. Any amount of remission to result in manumission requires action under s. 432 (1), read with the Remission Rules. That is why Parliament tracing the single source of remission of sentence to s. 432.blocked it by the non-obstante clause. No remission, however, long, can set the prisoner free at the instance of the State, before the judicial sentence has run ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inite provision dealing with a particular situation or narrow class of cases, as distinguished from the general run of cases covered by s. 432 Cr. P.C. Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment. It follows that s. 433A applies in preference to any special or local law because s.5 expressly declares that specific provisions, if any, to the contrary will prevail over any special or local law. We have said enough to make the point that 'specific' is specific enough and even though 'special' to 'specific' is near allied, and thin partition do their bounds divide' the two are different. Section 433A escapes the exclusion of s. 5. A reading of the above passage shows that the Court was of the view that in view of the non-obstante clause used in section 433A of the Code which excluded the operation of section 432, the remission rules which were traceable to section 432 could not prevail over section 433A and section 5 of the Code could not, therefore, be relied on by the petitioners. In the instant case reliance is not being placed on any rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being inserted to cover the proviso inserted by the Joint Committee . The Joint Committee's recommendation on section 57 of the Indian Penal Code which is referred to in the above clause was as follows: Section 57 of the Code as proposed to be amended had provided that in calculating fractions of terms of punishment imprisonment for life should be reckoned as equivalent to rigorous imprisonment for twenty years. In this connection attention of the Committee was brought to the aspect that sometimes due to grant of remission even murderers sentenced or commuted to life imprisonment were released at the end of 5 to 6 years. The Committee feels that such a convict should not be released unless he has served at least fourteen years of imprisonment. It is obvious that Parliament which was aware of laws like the Act which were in force in the States did not choose to interfere with them by enacting section 433A of the Code. If it intended to nullify or modify such laws the non-obstante clause in section 433A would have been more comprehensive including all local statutes enacted for the benefit of children and juvenile or adolescent offenders. Considering the case in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is, therefore, dismissed. SABYASACHI MUKHARJI, J. With great respect I agree with the order proposed and also with the reasoning of my learned brother, Justice Venkataramiah. There is however some anomaly in Section 10A of the Andhra Pradesh Borstal Schools Act, 1925. The said section has been set out in the judgment. It empowers the State Government to 'transfer offenders sentenced to transportation to Borstal School'. It further provides that if the State Government is 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 years, nor more than 21 years, might with advantage be detained in 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 the sentence. (emphasis supplied). The section further stipulates that the provisions of the said Act should apply to such offender 'as if he had been originally sentenced to detention in a Borstal School'. In the instant case, by the order dated 12th September, 1980, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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