Ashok Kumar Vs. Delhi Administration - Court Judgment

Excerpt:
punjab borstal act, 1926 - sections 5 and 10--it is axiomatic that under law while deciding whether it is expedient or not to grant the benefit under section 5, the trial court is obliged to give its reasons and under section 10(2) the appellate court has also power to alter the sentence to that of detention under the act whenever it is considered expedient to do so. subordinate courts are thereforee decided to give a definite finding about the age of the offender, especially of one who claims to be of less than 21 years of age even in cases where it is not considered expedient to alter the rigorous imprisonment to detention under the act. - - (6) it is quite safe to hold that the main object of punishment to these adolescent offenders is, to a great extent, meant to reform the offender.charanjit talwar, j.(1) this is a petition under article 226 of the constitution filed by ashok kumar who is presently lodged in central jail, tihar, new delhi, after having been sentenced to life imprisonment for committing an offence under section 302 of the indian penal code, seeking a writ of mandamus to the state directing forthwith release of the petitioner.(2) the main plea of the petitioner was that as be was admittedly 17/18 years of age at the time of commission of the offence, i.e., an adolescent being below 21 years of age, the sentence of life imprisonment awarded to him ought to have been altered to detention up to a maximum period of seven years in a borstal institute as provided under section 5 of the punjab borstal act, 1926 (hereinafter called 'the act').(3) the petitioner was convicted and sentenced vide judgment dated 18th december, 1979 and has been undergoing the sentence since then. his case was that as he had already undergon(4) thus the plea set forth in the present case is no longer tenable. we may note that from the record it appears that the petitioner was 18 years. old at the time of commission of offence, i.e., sometime in october, 1975 but was more than 21 years of age when he was convicted, i.e., on 18th december, 1979. the learned counsel for the petitioner admits that fact. mr. sodhi. learned counsel for the state submitted that at any rate his case would not fall under the purview of section 5 of the punjab borstal act. it is unnecessary to go into this plea as after the reversal of hawa singh's case, the offence of murder is not covered under that act at all.(5) before parting with the case, we consider it our duty to highlight an admitted fact at the bar that in delhi the courts are rarely exercising their powers to pass an order of detention in a borstal institution in the case of a convict under 21 years of age in lieu of rigorous imprisonment awarded for offences, to which the punjab borstal act, 1926, as extended to the union territory of delhi has application. the offence has been defined in sections 2(4) of the said act to mean an offence punishable with transportation or rigorous imprisonment under the indian penal code but the offences excepted are an offence which is punishable with death ; an offence punishable under chapter v-a (criminal conspiracy) or chapter-vi (all offences against the state) of the indian penal code, or those offences which are punishable with imprisonment under the public gambling act. the offences under the opium act and the punjab excise act (now under the narcotic drugs & psychotropic substances act) also fall under this category. apart from cases of conviction under those excepted offences, the provisions of the act can be applied to all the convicts where the convict is less than 21 years of age at. the time of conviction. it is obvious that the object of the legislation is to reform the said offenders who are less than the age of 21 years. under the children act, 1960, a 'delinquent child', i.e., a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years is to be tried by childrens court and if found guilty, has to be lodged in special schools or homes as envisaged under that act. a delinquent offender over the age of 16 years but less than 21 years, i e., the one who is considered passing from childhood to maturity, is to be dealt with differently as per the object of this legislation.(6) it is quite safe to hold that the main object of punishment to these adolescent offenders is, to a great extent, meant to reform the offender. from the definition of the words 'borstal institution', it appears that the aim of establishing those institutions is not only to give industrial training and other instructions to the offenders but to subject them 'to such disciplinary and moral influences as will conduce to their reformation'. we have not been able to ascertain as to why so far the provision of section 5 of the act,, which empowers the court to pass the detention order in lieu of imprisonment in a given case, is not being followed in delhi. that section reads : '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 again lieu of transportation or rigorous imprisonment (1) when any male person less than twenty-one years of age is convicted of an offence by a court of session, a magistrate specially empowered under section 30 of the code of criminal procedure, 1898 or a magistrate of the first class, or is ordered to give security for good behavior and fails to give such security, and when by reason of his criminal habits or tendencies or associations with persons of bad character it is expedient, in the opinion of the 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 two years and shall not exceed seven years when the order is passed by a court of sessions or the magistrate specially empowered under section 30 of the code of criminal procedure, 1898, and shall not be less than two years nor exceed three years, when the order is passed by a magistrate of the first class not so empowered. (2) when any magistrate) not empowered to pass such order, is of opinion that an offender convicted by him is a person in respect of whom such orders 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 district magistrate to whom he is subordinate. (3) the district magistrate to whom the proceedings 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 from its commencement.'(7) the system of detaining delinquents who are juvenile adults, in reformatories has been in force by virtue of the punjab borstal act, 1926 in punjab and in other parts of the country under different state acts for over half a century. the act was extended to the union territory of delhi in the year 1939. mr. sodhi accepts this fact but informs us that so far no 'institution' under the act has been established in delhi but whenever the need arises the juvenile adults are transferred to punjab for detention in one of the institutions established under the act. he has drawn our attention to two or three cases where on the initiative of the jail superintendent, orders were obtained presumably under section 8 of the act for lodging of the young convicts in the institutions at faridkot and ambala. in one case, on the directions of the supreme court, young convicts about six or seven in number were transferred to institution at hissar. we are further informed that in the central jail, tihar, the boys are lodged in a separate wing. that part of the jail although not declared as an 'institution', is run, it is claimed, generally on the principles to be applied to an institution. we have gone through some of the borstal acts. we are informed at the bar that in other parts of india where the system prevails, institutions have already been established.(8) keeping in view the provisions of the act, we recommend to all the subordinate courts dealing with criminal cases in delhi to follow strictly the provisions of the act whenever applicable. to enable the trial courts to exercise the said power, it is incumbent upon them to hold an inquiry regarding the age of the said offender under section 13 of the act. we, thereforee, issue directions to all the subordinate courts to give a definite finding about the age of the offender, specially an offender who claims himself to be less than 21 years of age, even in cases where it is not considered expedient to alter the rigorous imprisonment to detention under the act. this direction we may add is in consonance with the directions of the supreme court where the jail superintendents have been prohibited to accept the warrant of custody in which the age of the convent has not been mentioned. it is axiomatic under law that while deciding whether it is expedient or not to grant the benefit under section 5 of the act, the trial court is obliged to give its reasons. we may further note that under sub-section 2 of section 10 of the act, the appellate court also has the sentence of rigorous imprisonment to that of detention wherever it is considered expedient to do so.(9) while dismissing the petition, we direct that the part of the judgment containing recommendations be sent to the sessions judge for circulation to the concerned subordinate courts.