Ramachandra Rao, J.
1. The petitioner, who is undergoing detention in the Borstal School at Visakhapatnam, has sent a letter on 31-12-1982 to this Court to treat the same as a petition for the issue of a writ of habeas corpus and to direct the respondent to release him forthwith.
2. The relevant facts leading to the filing of this writ petition are set out in the counter affidavit filed by the Incharge Superintendent of the Borstal School. Bondili Jagannath Singh, the petitioner herein, was convicted under Section 302, I.P.C. and sentenced to imprisonment for life in sessions Case No. 1/76 on the file of the Additional Sessions Judge, Ongole by judgment dated 17-3-1976. He was aged 16 years at the time of such conviction. On appeal preferred by him to this Court in Criminal Appeal No. 804/76, the conviction and sentence imposed were confirmed by judgment dated 11-7-1976. While confirming the said conviction and sentence, this Court recommended to the Government that the petitioner should be sent to the Borstal School for detention under section 10-A of the Andhra Pradesh Borstal School Act, 1925 (Act No. V of 1926).
3. Pursuance to the said recommendation, the Government by order dated 2-9-1976 in G.O.Rt. No. 2178, directed that the petitioner should be sent to the Borstal School, Visakhapatnam. From 18-9-1976, the petitioner has been in detention in the Borstal School at Visakhapatnam.
4. While so, the case of the petitioner was placed before the Visiting Committee of the Borstal School for review on 28-12-1980, and the Committee recommended his release on licence. But the Superintendent of Police, Ongole sent a report stating that there would be reaction in the locality if the petitioner were to be released, and that the relatives of the victim were still bearing grudge against the petitioner. In view of the said report, the Government, instead of releasing the petitioner on licence, ordered in G.O.Rt. No. 3285 Home (prison-B) Department dated 9-12-1982 that the petitioner be transferred to the Central Prison, Rajahmundry.
5. The petitioner has thereupon moved this Court for his release by the issue of a writ of habeas corpus. As the petitioner is not represented by counsel, Sri C. Padmanabha Reddy, a senior Advocate of this Court, has appeared for the petitioner as amicus curiae at our request.
6. In his letter, the petitioner stated that had he been allowed to undergo the sentence of imprisonment in the Central Jail, Rajahmundry where he was detained prior to his transfer to the Borstal School, he would have earned remission of the sentence according to the prisons Rules, and he would be entitled to be released in accordance with the order passed by the Government directing the release of certain categories of prisoners to commemorate the Silver Jubilee Celebrations of the State of Andhra Pradesh on 1-11-1980.
7. Obviously, the petitioner is referring to the order in G.O.Ms. No. 557 Home (Prisons-C) Department dated 30-10-1080 issued by the Government under Section 432, Criminal P.C. on the even of the Silver Jubilee Celebrations, directing the release of certain categories of prisoners. Under Para 2 (1) of the said G.O., all prisoners, except those covered by Section 433-A, Cr.P.C. who had completed 5 years of sentence of imprisonment as on 30-10-1980, are entitled to be released.
8. Sri C. Padmanabha Reddy raised a further contention that even under the provisions of the Andhra Pradesh Borstal Schools Act (hereinafter called 'the Act'), the petitioner would be entitled to be released as he had completed 23 years by 9-12-1982.
9. The learned counsel submitted relying upon several provisions of the Act, in particular, Sections 8, 10-A and 14, that when an offender has been convicted for an offence, and sentenced to imprisonment for a term, or to imprisonment for life, and he has been ordered to be detained in a Borstal School, and he attains the age of 23 years while he is in detention in a Borstal School, and there are no grounds for commuting the term of detention to imprisonment, he is entitled to be released.
10. On the other hand, the learned Public Prosecutor contended that in the case of an adolescent offender sentenced to life and ordered to be detained in a Borstal School under Section 10-A, he cannot be allowed to continue in the Borstal School on attainment of 23 years of age, and he has to be transferred to a prison to undergo the unexpired portion of the sentence of life imprisonment.
11. On the aforesaid submissions, the following two points arise of consideration :
(1) Whether the petitioner is entitled to be released on the basis of the order made in G.O.Ms. No. 557 Home (Prison-C) Department dated 30-10-1980
(2) Whether the petitioner is entitled to be released from the detention in the Borstal School on attainment of the age of 23 years
12. In order to determine the points raised, it is necessary to refer to the relevant provisions, of the Act. The said Act has been enacted, according to the preamble, to make provision for the establishment and regulation of Borstal Schools for the detention and training of adolescent offenders.
13. Section 2(1) defines 'adolescent offender' as 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 Criminal P.C.), has failed to do so and who at the time of such conviction or failure to give security is not less than 16 nor more than 21 years of age.
14. 'Borstal School' is defined in S. 2(2) as a corrective institution wherein adolescent offenders, whilst detained in pursuance of the Act, are given such industrial training and other instruction and are subjected to such disciplinary and moral influences as will conduce to their reformation and the prevention of crime.
15. Section 3 empowers the State Government to establish one or more Borstal Schools and also to appoint a Visiting Committee for every such school. Section 5 makes the provisions of the Prisons Act, 1894 and the Prisoners Act, 1900 and the rules framed thereunder, applicable to the case of every Borstal School established under the Act, as if it were a prison, and the inmates prisoners, but subject to any alterations, adaptations and exceptions made by the act and the rules framed thereunder.
16. Section 8 which empowers the Court to pass sentence of detention in borstal School in the case of an adolescent offender sentenced to a term of imprisonment, reads as follows :
'8. Where it appears to a Court having jurisdiction under Act that an adolescent offender should, by reason of his criminal habits or tendencies, or association with person of bad character, be subjected to detention for such term and under such instruction and discipline as appears most conductive to his reformation and the repression of crime, it should 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;
Provided that, before passing such sentence, the Court, shall consider any report or representation which may be made to it including any report or representation made by the probation office of the area in which the offender permanently resided at the time when he committed the offence as to the suitability of the case for treatment in a Borstal School and shall be satisfied that the character, state of health and mental condition of the offender and other circumstances of the case are such that the offender is likely to profit by such instruction and discipline as aforesaid'.
17. Under Section 9, any person detained in a Borstal School for failure to furnish security under Section 106 or 118, Cr.P.C. shall be released on furnishing security. Section 10 empowers the Inspector General to transfer an adolescent offender sentenced to imprisonment, from prison to a Borstal School, to serve the whole or any part of the unexpired residue of his sentence, and the provisions of the Act shall apply to such person as if he had been originally sentenced to detention in a Borstal School.
18. Section 10-A which confers power on the State Government to transfer offenders sentenced to life imprisonment to Borstal School, reads as follows :
'10-A. 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 nor 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'.
19. Section 14 provides for transfer of incorrigible offenders from borstal School to a prison and it reads as follows :-
'14. 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, 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 of 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'.
20. Section 15 empowers the Inspector-General of prisons to release the offender on written licence subject to the prescribed conditions, and Section 17 provides for revocation of licence.
21. Section 20 which provides for appeal and revision, reads as follows :
'20. For the purpose of appeal and revision under the Code of Criminal Procedure, 1898, a sentence of detention under Section 8 of this Act shall be deemed to be a sentence of imprisonment for the same period.
Any person affected by an order of the Inspector-General under this Act may appeal to the (State Government) whose orders shall be final'.
22. Section 21-A confers power on the State Government to discharge at any time an inmate of any Borstal School either absolutely or subject to such conditions as they may think fit.
23. Section 22 provides that :
'The conviction of an adolescent shall not be regarded as a conviction for the purposes of any disqualification attaching to a conviction for any offence'.
24. On the 1st point, the petitioner's plea is, that if he had been allowed to undergo the sentence of life imprisonment in the Central Jail without being transferred to a Borstal School, he would have earned remission permissible under the Prisons Rules and he would have completed five years of sentence as on 30-10-1980, in which case, he would be entitled to be released pursuant to the order in G.O.Ms. No. 557 Home (Prisons-C) Department dated 30-10-1980. The said order was made by the State Government under Section 432, Cr.P.C. There are several reasons for not accepting this contention of the petitioner. Firstly, it is doubtful whether the power to suspend or permit the sentence of imprisonment conferred by Section 432, Cr.P.C. on the State Government, can be exercised in respect of a sentence of detention imposed by the Court under S. 8 or an order of detention made by the Inspector General of Prisons or the State government under Sections 10 and 10-A of the Andhra Pradesh Borstal Schools Act. Section 21-A of the Andhra Pradesh Borstal Schools Act, which is a special enactment, confers power on the State Government to order discharge of an inmate of a Borstal school at any time either absolutely or subject to such conditions as they may think fit. The order passed in G.O. 557 is not one passed under Section 21-A of the Act. Therefore, the provisions of the said G.O. may not be attracted to the case of the petitioner. Secondly, the categories of prisoners enumerated in clauses (a), (b), (c) and (d) of para 2 of the said G.O. do not cover the category of persons undergoing detention in a Borstal School. Thirdly, it is admitted that the Prisons, Rules relating to remission of sentence of imprisonment applicable to prisoners undergoing imprisonment in prison, are not applicable to offenders undergoing detention in a Borstal School and the petitioner's claim for remission of the sentence under the Prisons Rules is not tenable, in which case, the petitioner would not have completed 5 years of imprisonment as on 30-10-1980 and, therefore, the petitioner cannot claim the benefit of para 2(a) of the G.O.Ms. No. 557 dated 30-10-1980 and he is not entitled to be released.
25. We shall next consider the second point urged by Sri Padmanabha Reddy. The preamble and the definition of Borstal School, state that the object and purpose of the Act is to make provision for the detention of adolescent offenders in the Borstal Schools and to give such industrial training and other instruction, and subject them to such disciplinary and moral influences as will conduce to their reformation and the prevention of crime. Under Section 8, where it appears to the Court that an adolescent offender by reason of his criminal habits or tendencies or association with persons of bad character should be sentenced to detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime, the Court in lieu of passing a sentence of imprisonment, can 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 attains the age of 23 years. A reading of this provision shows that where an adolescent offender is convicted for an offence for which he was liable to be sentenced to a term of imprisonment, the Court instead of imposing a sentence of imprisonment can impose a sentence of detention in a Borstal School but limited to the period mentioned therein, and in any case not extending beyond the date on which the offender attains the age of 23 years.
26. While Section 8 empowers a Court having jurisdiction under the Act to pass a sentence of detention in a Borstal school in lieu of passing a sentence of imprisonment, Section 10 empowers the Inspector General of Prisons if he is satisfied that any adolescent offender undergoing imprisonment in consequence of a sentence passed either before or after the passing of the Act, might with advantage, be detained in a Borstal School, to transfer such person from prison to the Borstal School, there to serve the whole or any part of the unexpired residue of his sentence, and thereupon the provisions of the Act shall apply to such person as if he had been originally sentenced to detention in a Borstal School. Thus, the provisions of Section 8 of the act will be attracted to such an adolescent offender transferred from prison to a Borstal school, and the period of detention will be subject to the limitation prescribed by Section 8 of the Act. That means, the period shall not be less than two years and shall not exceed five years, and in no case extend it beyond the date of which he attains the age of 23 years.
27. Sections 8 and 10 apply only to an adolescent offender, as defined in Section 2(1), who is punishable with imprisonment, but not a person sentenced to life imprisonment. Such an offender is covered by Section 10-A of the act. Under S. 10-A, it is for the State Government to satisfy itself whether the offender who, at the time of conviction, was not less than 16 nor more than 21 years of age, might with advantage, be detained in a Borstal School, and direct such offender to be transferred to a Borstal School, there to serve the whole or any part of the unexpired residue of his sentence.
28. On such transfer of the offender to the Borstal School, at the direction of the State Government, the provisions of the Act shall apply to such offender as if he had been originally sentenced to detention in a Borstal School. Thus, the provisions of S. 8 become applicable to the said offender, and the period of detention will be subject to the limitations imposed by Section 8, and the offender cannot be kept in detention for a period exceeding 5 years, but in no case extending beyond the date on which the offender attains the age of 23 years.
29. The learned Public Prosecutor relying upon Section 14 of the Act contends that where an offender sentenced to life imprisonment, has been transferred by the State Government under S. 10-A of the act to a Borstal School, and the offender cannot be continued in detention in the school after he attains the age of 23 years, he had to be necessarily transferred to prison to undergo the rest of the sentence of life imprisonment. We do not think this submission can be accepted. Under Section 14, the power to retransfer a person detained in the Borstal School to a prison is subjected to the following conditions and limitations :
(1) The Superintendent of the Borstal School has to send a report that the person detained is incorrigible or is exercising bad influence on the other inmates of the School;
(2) On receipt of the report, 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; and
(3) The term of imprisonment shall not exceed -
(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.
30. In the instant case, it has not been reported by the Superintendent of the Borstal School, that the petitioner is incorrigible or is exercising bad influence on the other inmates of the school. If so, the State Government has no power to invoke the provisions of Section 14 of the Act and direct the transfer of the petitioner from the Borstal School to the prison. It is also admitted that the visiting committee of the school recommended the release of the petitioner. Therefore, in the case of the petitioner, the question of the Government exercising the power under Section 14 for commutation of the unexpired residue of the term of detention to a term of imprisonment does not arise.
31. Even otherwise, in the case of commutation of the term of detention to a term of imprisonment under S. 14, the commuted term of imprisonment shall not exceed the 'unexpired residue of the term of detention'. In the instant case, as the petitioner has been transferred under S. 10-A by the State Government to the Borstal School, the petitioner must be deemed to have been 'sentenced to detention in a Borstal School' in lieu of the sentence of life imprisonment, and the commuted term of imprisonment cannot exceed the unexpired residue of the term of detention, and by virtue of the provisions of Section 8 of the Act, the petitioner cannot be detained in the school after he had attained the age of 23 years.
32. While an offender found to be incorrigible or exercising bad influence on other inmates can be retransferred under Section 14 to a prison to undergo imprisonment for the unexpired residue of the term of detention, or up to the date of his attaining 23 years of age and he is entitled to be released thereafter, what is the justification for not releasing an offender, not found to be incorrigible or exercising bad influence on the other inmates, on his completing the term of detention or attaining the age of 23 years There is no express provision in the Act for continuing in detention in Borstal School or in imprisonment of an offender detained under S. 10-A, or under the Section 14 of the Act, after he completes the term of detention or attains the age of 23 years. It is, therefore, reasonable to infer that when an offender is detained in Borstal School under S. 10-A, and whether his case is covered by Section 14 or not, he shall be entitled to be released at the expiration of the term of detention in the school or attainment of 23 years of age.
33. In this context, reference may be made to R. 56-A of the Borstal Schools Rules, which provides for the release of an inmate of the Borstal School on the expiry of the term of detention in accordance with the procedure laid down therein. Under Rule 56-B where the State Government in exercise of the powers under S. 21-A orders the discharge of an inmate of any Borstal School, the procedure laid down by R. 56-A has to be followed. The aforesaid Rules also indicate that an offender sentenced to term of detention in a Borstal School in lieu of a sentence of imprisonment for a term or for life, shall be entitled to be released at the expiration of his term of detention or on his attaining the age of 23 years.
34. In Gadde Koteswara Rao v. State, judgment in Crl. A. No. 637 of 1968, D/- 4-8-1972 : (Reported in 1974 Cri LJ 81) (Andh Pra), the 6th accused, who was a 'young person' as defined in S. 3(2) of the Madras Children Act. IV of 1920, was convicted by the Sessions Court under Sections 147, 148 read with S. 149, S. 330 read with S. 149, and S. 340, part II read with S. 149, I.P.C., and in lieu of the sentence of imprisonment he was directed under S. 23(2) of the Madras Children Act to be sent to a Senior Certified School for a period of two years.
35. On appeal in Criminal Appeal No. 940/68 by the State to this Court, the 6th accused along with accused 3 and 5 were convicted for the offence under S. 302 read with Section 34, I.P.C. and the period of detention of the 6th accused was enhanced from two years to five years.
36. In giving effect to the direction by this Court with regard to detention of the 6th accused, the learned Sessions Judge directed that the 6th accused who had not completed 16 years of age should be detained in the senior Certified School for a period of two years, and thereafter in the Borstal School for a period of three years, and after discharge from the Borstal School, he should be sent to the Central Jail to serve the rest of the sentence of life imprisonment.
37. On reference made to this Court by the learned Public Prosecutor, the learned Judges who heard the appeal clarified by order dated 7-7-1972 in Gadde Koteswara Rao v. State, Judgment in Crl. A. No. 637 of 1968 : (Reported in 1974 Cri LJ 81)(Andh Pra), that the period of detention of the 6th accused for five years ordered in the appeal by this Court, was in lieu of the sentence of imprisonment for life, and the 6th accused was not to be sent to jail to serve any further period after his period of detention in the Borstal School was over, and he should be released thereafter.
38. The aforesaid decision lends support to our view that an offender who was sentenced to a term of detention in the Borstal School could not be sent to the prison after the expiry of the term of detention of on the offender attaining the age of 23 years.
39. Under Art. 21 of the Constitution, no person shall be deprived of his life or personal liberty except according to the procedure established by law. As the petitioner has served out the full term of detention in the Borstal School under S. 10-A read with Section 8 of the Act, his continued detention is without authority of law and is violative of his right under Art. 21 of the Constitution of India. If a person detained in Borstal School under S. 10-A is to be retransferred to the prison after he serves out the full term of detention in the school, it will defeat the very object and purpose of the Act of providing for detention of offenders in a Borstal School for the purpose of reformation and rehabilitation of young offenders.
40. For all the foregoing reasons, we hold that the order of the Government in G.O.Rt. No. 3285 Home (Prison-B) Department dated 9-12-1982 directing the petitioner to be transferred to the Central Prison, Rajahmundry is illegal and devoid of jurisdiction and is quashed and a direction will issue to the respondent to release the petitioner forthwith. We are grateful to Sri Padmanabha Reddy for assisting us as amicus curiae. Advocate's fee Rs. 500/- only.
41. Order accordingly.