Judgment:
A. Gopalrao, J.
1. This appeal is filed by the State of Andhra Pradesh, represented by its Principal Secretary, Home Department and the Inspector General of Prisons, Government of Andhra Pradesh, Hyderabad, against the order dated November 8, 1991 in Writ Petition No. 4156 of 1991, passed by a learned single Judge, directing the appellants to transfer the respondent herein from the Central Prison, Chenchalguda, Hyderabad to any Borstal School, for detention till he completes the age of 23 years, and thereafter to set him at liberty.
2. Facts necessary for this appeal may briefly, be stated thus : The respondent was born on June 2, 1969. He was convicted for murder, that occurred on September 10, 1987 and sentenced to undergo imprisonment for life, by the Sessions Judge, Nalgonda, by judgment dated February 28, 1989 in Sessions Case No. 129 of 1988 on his file. Criminal Appeal No. 399 of 1989, filed by the respondent was dismissed by a Division Bench of this court on September 20, 1989. Since the respondent was aged 20 years, three months and eighteen days, on the date when the judgment was delivered, i.e., September 20, 1989, the Division Bench, recommended to the State Government to pass appropriate orders u/S. 10-A of the Andhra Pradesh Borstal Schools Act, 1925 (hereinafter referred to as the Act). Consequently, the State Government passed an order in its Memo No. 155/Prisons/B90-1, dated February 8, 1990, refusing to commit the respondent for detention in Borstal School, in the following terms :
'With reference to his letter cited, the I.G. of Prisons and Director of Correctional Services is informed that his proposal for not transferring Convict No. 3136, K. Krishnaiah of the Central Prison, Hyderabad to Borstal School u/S. 10-A of A.P. Borstal Schools Act, 1925 is accepted. The convict may, therefore, be retained in the Central Prison, Hyderabad.'
3. Mother of the respondent challenged the legality of this order by filing W.P. No. 8038 of 1990, which was allowed by a learned single Judge on 3-9-1990. The operative portion of the said order is as follows :
'For the foregoing reasons, the writ petition is allowed. The impugned order issued by the State in Memo No. 155/Prisons/90-1, dated 8-2-1990 and Lr. No. 827/SB2/89, dated 15-1-90 issued by the I.G. of Prisons are set aside and consequently the first respondent is directed to pass a fresh order under S. 10-A of the Act taking into consideration the report submitted by the District Probation Officer, Nalgonda, in his letter No. D/NKG/3/89, dated 11-10-1989 as expeditiously as possible, in any event not later than eight weeks from the date of receipt of a copy of this order. It is needless to mention that Krishnaiah shall not be detained in Borstal School beyond the date on which he attains the age of 23 years'.
4. The Government, pursuant to the above direction, again passed the order in G.O.Rt. No. 3220, Home (Prisons Department), dated 12-12-1990, operative portion of which reads as follows :
'In the light of the judgment dt. 3-9-1990 of the High Court of Andhra Pradesh in W.P. No. 8039/1990, Government have again carefully examined the issue and consider that there was no provocation for the convict to involve in the case while two brothers are quarrelling Sri Komalla Krishnaiah had dealt the first blow which is a clear indication of the bad temper of the convict and he is not to be a fit subject for being dealt with u/S. 10-A of the Act. They do not see any satisfactory reason to transfer the above said convict to Borstal School u/S. 10-A of the Borstal Schools Act, 1925 and accordingly order that he be retained in Central Prison, Hyderabad'.
5. Aggrieved by this order, the respondent filed writ petition 4156 of 1991 out of which this writ appeal arises. The learned single judge, allowed the writ petition, by his order dated November 8, 1991. The operative portion of the said order is as follows :
'The petitioner would be completing 23 years of age in another six months and twenty-six days. Although this period appears to be too short for his effective reformation, viewed against the prospect of the petitioner remaining in jail for another eleven years and mixing with hardened criminals, I am inclined to take the view that committing him to Borstal School until he completes the age of 23 years would have the desired effect of reforming him. Otherwise, he would end up as a hardened criminal with no prospect of his coming out of prison a reformed man.
For these reasons, I would allow the writ petition and set aside the order passed by the Government in G.O. Rt. No. 3220, Home (Prisons-B) Department, dated 12-12-1990 and direct respondents 1 and 2 herein to transfer the petitioner from the Central Prison, Chenchalguda, Hyderabad to any Borstal School for detention till he completes the age of 23 years and thereafter he shall be set at liberty. The writ petition is allowed accordingly. No costs.'
6. The respondents in the writ petition have therefore, filed this writ appeal against the above order.
7. The learned Government Pleader for Home, appearing for the appellants has submitted that u/S. 10-A of the Act, the court has no power to direct the appellants to transfer the respondent from the Central Prison to Borstal School for detention till he completes the age of 23 years. He contends that the court can at the most give a direction to the appellants to consider the case of the respondent for transfer to a Borstal School. The learned Government Pleader further submits that the Act, is a beneficial piece of legislation, intended to segregate the adolescent offenders from the regular prisoners in order to reform them and shape them as good and useful citizens by the time they come out of the Borstal School. According to the learned Government Pleader, as the Act prescribes a minimum period of two years of detention in a Borstal School for reformation, the direction given by the learned single Judge to transfer the respondent, who will attain the age of 23 years within about three months, will defeat the very purpose and object of the Act, viz., reformation of the adolescent convict and is thus illegal and contrary to the intendment of the Act.
8. The point, therefore, that falls for our consideration in this writ appeal is - whether the impugned order of the learned single Judge is sustainable
9. As the matter involves the right of an adolescent offender to be considered for detention in a Borstal School instead of confinement in a regular prison and is of considerable importance, we requested the learned Advocate-General and the learned senior counsel, Sri C. Padmanabha Reddy, to assist the Court as Amicus Curiae. They readily acceded to our request and rendered valuable assistance, to us.
10. Before we proceed to discuss the merits of the case, we would like to examine the scope and intendment of the Act.
11. Section 2(1) of the Act defines 'adolescent offender' as 'any person who has been convicted of any offence punishable with imprisonment or who having been ordered to give security (u/S. 106 or S. 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 nor more than 21 years of age.'
12. Section 8 deals with the power of the Court to pass sentence of detention in a Borstal School. It reads thus :
'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;
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 officer 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 the other circumstances of the case are such that the offender is likely to profit by such instruction and discipline as aforesaid.'
13. Section 10, confers power on the Inspector General of Prisons to transfer prisoners to Borstal School. It reads thus :
'The Inspector-General may, subject to the rules made by the (State Government), if satisfied that any adolescent offender under-going imprisonment in consequence of a sentence passed either before or after the passing of this Act might with advantage be detained in a Borstal School, direct that such person shall be transferred from prison 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 thereupon apply to such person as if he had been originally sentenced to detention in a Borstal School.'
14. Section 10-A of the Act deals with the power of the State Government to transfer offenders sentenced to transportation to life, to a Borstal School. It reads :
'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 1989, 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.'
15. Section 14 of the Act, relates to transfer of incorrigibles etc., to prisons. It reads thus :
'Where a person detained in a Borstal School is reported to the State Government by the Superintendent of such school to be incorrigible or be exercising a bad influence on the other inmates of the school or in the case of a person directed to be sent to a Borstal Schools before the commencement of the Madras Borstal Schools Amendment Act, 1936, 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 ..........'.
16. Section 15, which deals with power to release on licence, reads as follows to the extent it is relevant :
'15. Power to release on Licence : (1) Subject to the prescribed condition, the Inspector General may, on the recommendation of the Visiting Committee, at any time, after the expiration of six months from the commencement of the detention of an offender in a Borstal School; if he is satisfied that there is a reasonable probability that the offender will abstain from crime and lead a useful and industrious life, discharge him from the Borstal School and grant him a written licence, permitting him to live under the supervision and authority of such -
(a) officer of the State Government;
(b) secular institution;
(c) religious society; or
(d) responsible person;
as may be approved by the Inspector General and willing to take charge of the offender .........'
It may be noticed that sub-section (4) of S. 53A of the Indian Penal Code which was inserted by S. 117 of the Code of Criminal Procedure (Amendment) Act, 1955 lays down that any reference to 'transportation' in any other law for the time being in force shall, if the expression means transportation for life, be construed as a reference to imprisonment for life. Therefore, the expression, 'transportation' in S. 10-A of the Act must be understood as referable to life imprisonment.
17. It can seen that the Borstal School as defined in S. 2(2) of the Act is a corrective institution, where adolescent offenders convicted of any offence punishable with imprisonment and who at the time of such conviction are not less than 16 and not more than 21 years of age, are detained and 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. It is also necessary to notice that a distinction is made between the adolescent offenders who are sentenced to imprisonment for life and those who are sentenced to imprisonment. Section 8 of the Act confers power on the court to pass a sentence of detention in a Borstal School in lieu of passing a sentence of imprisonment, for a term which shall not be less than two years and shall not exceed five years, and in any case, not beyond the date when the convict attains the age of twenty three years. No doubt, before passing such an order, the Court should take care to consider the report or representation made by the Probation Officer of the area in which the offender permanently resided at the time when he committed the offence, as to 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 the other circumstances of the case are such that the offender is likely to profit by such instruction and discipline as aforesaid.
18. In the case of an adolescent offender, who is convicted and sentenced to undergo imprisonment for life, the court does not have power either to pass sentence of detention or to direct transfer of an offender to a Borstal School. Only the State Government can, if satisfied that the offender who at the time of conviction was not less than 16 and 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, to serve the whole or any part of the unexpired residue of his sentence. It can be noticed that the court, convicting an adolescent offender and sentencing him to undergo imprisonment for life, can only recommend to the Government to consider transfer of the offender to Borstal School as contemplated under Rule 98 of the Criminal Rules of Practice, 1966 corresponding to Rule 140 of the Criminal Rules of Practice, 1990, which reads as follows :
'Courts of Session sentencing an offender who is not less than 16 and not more than 21 years of age to imprisonment for life shall consider whether a recommendation should be made to the Government that the offender be detained in a Borstal School under the Provisions of the Andhra Pradesh Borstal Schools Act, 1925.'
In other words, the Court has no power to straightway order detention of an adolescent offender/convict sentenced to life imprisonment, in a Borstal School.
19. It is settled law that when once a convict is committed to a Borstal School, he cannot be re-transferred under any circumstances to a regular prison after the expiry of 23 years of age (vide B. Jagannath Singh v. Government of Andhra Pradesh (1983) 2 APLJ (HC) 262 : (1983 Cri LJ 1740); and Have Singh v. State of Haryana : 1987CriLJ1919 ; and the State of Andhra Pradesh v. Vallabhapuram Ravi, : 1984CriLJ1511 .
20. As mentioned already, the Act is a beneficial piece of legislation, intended to reform the adolescent offenders by detaining them in a Borstal School and thereby segregating them from regular convicts undergoing imprisonment in prisons, so that they can turn out to be useful citizens after they complete the term of detention in a Borstal School. Therefore, care should be taken, by all concerned, to see that the benefits of this Act are extended to the eligible adolescent offenders. In facts, S. 361 of the Criminal Procedure Code makes it obligatory for the court to record special reasons for not considering the case of a convict for transfer to a Borstal School, as prescribed under Rule 140 of the Criminal Rules of Practice and Circular Orders, 1990.
21. It is, therefore, our endeavour if permissible under law, to see how far the benefits under the Act can be made available to the respondent in this appeal.
22. The facts, narrated already in the preceding paragraphs, will disclose that the petitioner was aged 20 years, three months and eighteen days only on the date viz., September 20, 1989 when the Divisions Bench of this Court confirmed the conviction and sentence of life imprisonment imposed on the respondent by the Sessions Court and recommended to the Government to consider his case for detention in a Borstal School. Accordingly, the Superintendent, Central Prison, Chanchalguda, Hyderabad where the respondent was serving the sentence, called for a report from the District Probation Officer, Nalgonda. He submitted his report dated October 11, 1989, which is in the following terms :
'With reference to the above, I have made enquiries about the said convict.
His mother along with her daughter is staying in Nalgonda, a rented house. His mother is a daily wage earner and earns Rs. 10/- per day. The neighbour spoke well about the family. I have made enquiries about him in his own village. I have contacted Sri Ram Reddy an Sri Narsaiah, Sri Ramachandra Reddy and Sri Ramulu, who spoke well about him. No one of the village people could speak bad about him.
He is not a naxalite, dacoit nor an habitual offender. He did not have any bad past record in the village. The socio-economical condition of the family is poor.
I have verified the School records and found that his date of birth is 2-6-1969. The date of birth certificate is sent with attestation.
In view of the above facts, I am recommending for his committal to Borstal School and for his early release.'
23. However, the Inspector General of Prisons, Hyderabad, opined that the respondent was responsible for inflicting the blows, which resulted in the death of the deceased and therefore, was not a fit person to be detained in Borstal School. The Government, acting on the report of the Inspector General of Prisons, issued the memo No. 155/ Prisons/B/90-1, dated February 8, 1990, referred to above, refusing to commit the respondent for detention in Borstal School. Writ Petition No. 8038 of 1990, filed by the mother of the petitioner, against the said memo was allowed on September 3, 1990, with a direction to the appellants herein to consider the report submitted by the District Probation Officer, Nalgonda, dated October 11, 1989 and pass appropriate orders. The State Government again passed orders in G.O. Rt. No. 3220, Home (Prisons-B) Department, dated December 12, 1990, ordering retention of the petitioner in the Central Prison (vide order extracted herein-before).
24. We called for the entire file from the Government and perused the same. We have noticed that a reference was no doubt made by the Government to the report submitted by the District Probation Officer, but the effect of the same was not duly considered. The Government placed reliance solely on the report of the second appellant, viz., Inspector General of Prisons, that the petitioner was responsible for inflicting the fatal blows on the deceased and therefore, it was not a fit case for ordering detention in Borstal School. This approach, by the State Government, is totally misconceived. The Division Bench which decided Criminal Appeal No. 399 of 1989 took into consideration the fatal blows inflicted by the respondent and confirmed the conviction and sentence of imprisonment for life, imposed on him by the learned Sessions Judge. Nevertheless, the learned Judges felt that the petitioner, being an adolescent offender, is entitled to be considered for detention in a Borstal School and accordingly recommended to the Government to consider his case u/S. 10-A of the Borstal Schools Act. When the State Government called for a report, the Inspector General of Prisons, the 2nd appellant herein, reported that the respondent was not a fit person for detention in Borstal School on the sole ground that he inflicted fatal blows on the deceased, which resulted in his death. The second appellant did not make any mention in his report about the report of the District Probation Officer. He merely reiterated the finding recorded by the Court holding the respondent guilty. No adolescent offender can be found fit for transfer to a Borstal School if his case for transfer is considered solely on the basis of the judgment by which the offender was found guilty. If this is the approach and mode of consideration, the recommendation made by this Court to consider the case of the respondent for transfer to a Borstal School becomes an empty formality. The second appellant, being the Inspector General of Prisons, would have done better by giving his opinion about the behaviour and conduct of the respondent in the prison and why the report of the District Probation Officer should not be taken into consideration by the State Government. That has not been done in this case. The entire approach of the State Government in rejecting the case of the respondent for his detention in Borstal School is erroneous. Therefore, the learned single Judge has rightly held, in the impugned order, that the Government had passed the successive orders by not taking into account the relevant factors that ought to have been considered.
25. The next aspect for our consideration is whether this Court can give a direction straightway to the State Government to transfer the petitioner to a Borstal School at this stage, in exercise of the powers under Art. 226 of the Constitution of India
26. No doubt, it is true that under the provisions of S. 8 of the Act, in lieu of passing a sentence of imprisonment, the Court 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. In no case, the detention shall be beyond the date on which the adolescent offender attains the age of twenty three years. The respondent has only about three months left for attaining the age of twenty three years. He was only about 19 years 8 months old at the time of his conviction by the Session Court. He was aged 20 years 3 months when this Court recommended to the State Government to consider his case for transfer to a Borstal School. On February 8, 1990 the State Government passed orders refusing to transfer the respondent to a Borstal School. This order was quashed by this Court and the State Government was directed to consider the case afresh on the basis of relevant material. Again, the State Government refused to commit the respondent for detention in a Borstal School by its order dated December 12, 1990. The learned single Judge quashed this order on November 8, 1991. By that time, the respondent was about 22 years 5 months old. As on today he is aged 22 years, 8 months, 19 days. We have stated the reasons for holding the order of the State Government to be wholly erroneous and unsustainable. If we are to send back the matter to the State Government for fresh consideration, there is every livelihood of the respondent attaining 23 years before the State Government passes an order. We are fully satisfied that the State Government failed to exercise properly the discretionary power vested in it. It took into account irrelevant consideration, namely, the report based on the decision in the criminal case and failed to consider relevant material, namely, the report of the District Probation Officer, in passing the impugned order.
27. In similar circumstance, while considering a case falling u/S. 2(4) of the U.P. Children Act, 1952, the Supreme Court observed in Jayendra v. State of U.P. : 1982CriLJ1000 :
'Taking into account the various circumstances on the record of the case, we are of the opinion that the appellant Jayendra was a child within the meaning of this provision on the date of offence. Section 27 of the aforesaid Act says that notwithstanding anything to the contrary in any law, no court shall sentence a child to imprisonment for life or to any term of imprisonment for life or to any term of imprisonment. Section 2 provides, in so far as it is material, that if a child is found to have committed an offence punishable with imprisonment, the court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. In the normal course, we would have directed that the appellant Jayendra should be sent to an approved school but in view of the fact that he is now nearly 23 years of age, we cannot do so.
For these reasons, though the conviction of the appellant Jayendra has to upheld, we quash the sentence imposed upon him and direct that he shall be released forthwith .......'
28. Following the above decision and in view of the facts and circumstances of this case, we hold that this is a fit case to order transfer of the respondent from the prison to a Borstal School in the interest of justice. Failure on our part to give such a direction, will result in the condemnation of the respondent for over eleven years in a regular prison along with hardened criminals. Once the respondent is transferred to a Borstal School, the provisions of the Act shall apply to him as if he had been originally sentenced to detention in a Borstal School. The provisions of the Act reveal that an adolescent offender detained in a Borstal School can be released under certain circumstance even before he completes the minimum period of two years of detention in a Borstal School.
29. In Comptroller and Auditor General of India v. K. S. Jagannathan : [1986]2SCR17 , while considering the scope and ambit of the power of the Courts under Art. 226 of the Constitution of India, the Supreme Court observed (at p. 546 of AIR) :
'There is thus no doubt that the High Courts in India exercising their jurisdiction under Art. 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Art. 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.'
30. The amplitude of the power of judicial review in a matter where the act of a constitutional or statutory functionary is vitiated by self-denial on an erroneous appreciation of the full amplitude of the scope of the power has been explained by the Supreme Court in Kehar Singh v. Union of India, : 1989CriLJ941 :
'The order of the President cannot be subjected to judicial review on its merits except within certain limitations. However, the function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the scope of the power is a matter for the court. The power to pardon belongs exclusively to the President and the Governor under the Constitution. There is also no question involved of asking for the reasons for the President's order. The courts are the constitutional instrumentalities to go into the scope of Art. 72, but cannot analyse the exercise of the power under Art. 72 on its merits. The question as to the area of the President's power under Art. 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review.'
31. Following the above decisions, we are satisfied that in a case like this, in the interest of justice, this court, under Art. 226 of the Constitution of India, can give a direction to the State Government to transfer an offender to a Borstal School.
32. We are in full agreement with the following view expressed by the learned Judge how the available limited period will have the desired effect of reforming the respondent herein :
'The petitioner would be completing 23 years of age in another six months and twenty six days. Although this period appears to be too short for his effective reformation, viewed against the prospect of the petitioner remaining in jail for another eleven years and mixing with hardened criminals, I am inclined to take the view that committing him to Borstal School until he completes the age of 23 years would have the desired effect of reforming him. Otherwise, he would end up as a hardened criminal with no prospect of his coming out of prison a reformed man.'
33. We, therefore, hold that the direction given by the learned single Judge, directing the appellants 1 and 2 herein, to transfer the respondent from the Central Prison, Chenchalguda Hyderabad, to any Borstal School for detention till he complete the age of 23 years and thereafter to set him at liberty, is correct and unassailable. This Writ appeal, therefore, fails and it is accordingly dismissed. The appellants should implement the direction given by the learned single Judge, which is confirmed by us in this writ appeal, forthwith, No costs.
Government Pleader's fee Rs. 350/-.
34. Before we part with this case, we place on record our appreciation of the valuable assistance rendered in this case, by the learned Advocate General and the learned Senior Counsel, Sri C. Padmanabha Reddy.
35. Appeal dismissed.