Bombay Borstal Schools Act, 1929, (Maharashtra) Section 6 - Bare Act

When an offender is found guilty of an offence for which he is liable to be sentenced to transportation or imprisonment, or is liable to imprisonment for failure to furnish security under Chapter VIII of the Code of Criminal Procedure, 1898, whether any previous conviction is proved against him or not, and it appears to the Court -

(a) that the offender is not less than sixteen or, in any district or place in which ¹[the Bombay Children Act, 1948, the Central Provinces and Berar Children Act, 1928 or the Hyderabad Children Act, 1951], is not in operation less than fifteen, nor more than twenty-one years of age, and

(b) that by reason of his criminal habits or tendencies or association with persons of bad character it is expedient that he should be subject to detention for such term and under such instruction and discipline as appears most conducive to his reformation,

it shall be lawful for the Court, if empowered in this behalf, to pass, in lieu of a sentence of transportation or imprisonment or of an order of imprisonment under section 123 of the Code of Criminal Procedure, 1898, an order for the detention of the offender in a Borstal school ²[established under this Act or subject to the provisions of section 13-A, in a Borstal school in any other ³[State] in ⁴[* * *] India] for such term, not being less than ⁵[three] years nor more than five years, as the Court subject to rules made under this Act, thinks fit :

Provided that, before passing such an order the Court shall give an opportunity to the parents or guardians of the said offender to be heard and shall consider any report or representation which may be made to it as to the suitability of the case for treatment in ⁶[such Borstal school], and shall be satisfied that the character, state of health and mental condition of the offender and the other circumstances of the case, are such that the offender is likely to profit by such instruction and discipline as aforesaid.

NOTES

Duty of the Court.-- The Magistrates should follow the wordings of section 6 of the Act and should find the youthful offender guilty of an offence but should not convict him of an offence and should pass in lieu of a sentence of imprisonment an order for detention within the provisions of section 6. AIR 1936 (23) Sind 71 : 37 Cri. L. J. 855.

When offence is not first and the offender is above 16 but below 21 years of age and where he is sentenced to undergo imprisonment in jail, it will not be competent for the Magistrate to pass an order of detention in Borstal school even if he thinks fit to do so, unless the sentence passed against him, is set aside. AIR 1933 (20) Sind 391 : 1933 Cri. Cas. 1431 : 35 Cr. L. J. 253.

What is the proper order : Under this section, the order is to convict the accused, and then in lieu of sentence of imprisonment, sentence him to be detained for a minimum and maximum period specified in the section. AIR 1933 (20) Bom. 461 : 35 Bom. L. R. 1018 : 1933 Cri. Cas. 1420 : 58 Bom. 37.

Section 6 of the Act applies when an offender is found guilty of an offence for which he is liable to be sentenced to transportation or imprisonment etc. The provisions of this Act will have to be read with sections 53 and 53-A of the Indian Penal Code, 1860. The punishment of death is distinct and separate than the punishment of transportation. Now, in view of the provisions of section 53-A of the Indian Penal Code, any reference to the term "transportation for life in any other law for the time being in force." will have to be construed as having reference to "imprisonment for life". According to section 302 of the Indian Penal Code, "Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine". The term used in section 6 of the Bombay Borstal Schools Act, viz., 'an offence for which he is liable to be sentenced to transportation' clearly indicates that the emphasis is not on the factum of punishment but the emphasis is on the 'liability' to be sentenced. Section 6 of the Bombay Borstal Schools Act uses the expression 'liable' with reference to the maximum sentence provided for the offence. In the cases where the maximum sentence provided for the offence is either transportation or imprisonment, etc., then alone section 6 of the Bombay Borstal Schools Act, can apply to such a case. The word 'liable' is normally interpreted to mean, exposed to a certain contingency or causality. In other words, it means a future possibility, probability, happening which may or may not actually occur. It deals with the liability and not with the actual order as to sentence. Normally an offence is described for which a death penalty is provided for, is not covered by section 6 of the Bombay Borstal Schools Act, 1929.- Nago Atmaramji v. State of Maharashtra, 1977 Mah. L. J. 163.

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1. This portion was substituted for the words and figures "the Bombay Children Act, 1924" by Mah. 21 of 1960. section 9.

2. These words, figures and letter were inserted by Bom. 2 of 1936, section 2 (1).

3. This word was substituted for the word "Province" by the Adaptation of Laws Order, 1950.

4. The word "British" was omitted by the Adaptation of Laws Order, 1950.

5. The word "three" was substituted for the word "two" by Bom. 17 of 1935, section 2.

6. The words "such Borstal school" were substituted for the words "a Borstal school" by Bom. 2 of 1936, section 2 (2).