A. Thangammal vs State Rep By on 6 February, 2008

[Cites 51, Cited by 5]

Madras High Court

A. Thangammal vs State Rep By on 6 February, 2008

Author: Prabha Sridevan

Bench: Prabha Sridevan, S. Nagamuthu

       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 06/02/2008

CORAM
THE HON'BLE MRS. JUSTICE PRABHA SRIDEVAN
THE HON'BLE MR. JUSTICE N. PAUL VASANTHA KUMAR
AND
THE HON'BLE MR. JUSTICE S. NAGAMUTHU

Habeas Corpus Petition No.596 of 2007

A. Thangammal							... Petitioner

Vs.

State Rep by
1.	The Home Secretary
	The Government of Tamil Nadu
	Fort St. George
	Chennai - 600 009

2.	The Inspector General of Prisons
	Thalamuthu Natarajan Maligai
	Egmore
	Chennai - 600 008

3.	The Superintendent of Prisons
	Central Prison
	Palayamkottai						... Respondents


	Petition filed under Article 226 of the Constitution of India praying for
a writ of Habeas Corpus and quash the sentence imposed on him in S.C.No.309 of
2002 dated 28-03-2003 and direct the 3rd respondent to produce my son name
Thangapandi to set him at liberty from his illegal detention at Central Prison,
Palayamkottai.


!For petitioner 	...	Mr. Mohideen Basha
				Mr. Abudu Kumar Rajarathinam
				(Amicus Curiae)

^For respondents	...	Mr. Raja Ilango, Addl. P.P.


:ORDER

PRABHA SRIDEVAN,J.

The petitioner in H.C.P. MD. 596 of 2007 is the mother of 24 year old Thangapandi. According to her, her son was born on 10-05-1983. He was one of the accused in S.C. No.309 of 2002 wherein three persons were found guilty under Section 302 IPC r/w. 34 IPC and were sentenced to undergo imprisonment for life. At that time, the Fast Track Court viz., the Trial Court was not appraised of the fact that the petitioner is an "adolescent offender" as defined under the Tamil Nadu Borstal Schools Act, 1925. Against the sentence imposed, Crl. Appeal No.754 of 2003 was filed. Even before the Division Bench, this point was not urged and the criminal appeal was dismissed on 23-02-2007. Thereafter, the above H.C.P. was filed on the ground that the petitioner's son Thangapandi was 18 years 5 months and 12 days old as on the date of occurrence and 19 years 10 months and 18 days on the date of conviction, which is 28-03-2003 and therefore, he was entitled to invoke the relevant provisions of the Tamil Nadu Borstal Schools Act, 1925 and therefore, his continued detention was per se illegal. When this point was urged, it was found that there was a conflict with regard to the application of the Act in Palanisamy @ Chinnasamy @ Vakil and 3 others V. State rep. By Inspector of Police, Veeranam Police Station, Salem District (2006 (2) L.W. (Crl.) 883) and Ramasamy V. State (2000 (1) L.W. (Crl) 142). Therefore, the matter was placed before the Honourable the Chief Justice for appropriate directions. Accordingly, this case has been placed before this Full Bench for hearing.

2. The learned counsel for the petitioner Mr. Mohideen Basha submitted that in S.2(1) of the Tamilnadu Borstal Scchools Act ( Act in short) relating to "adolescent offender", the expression "imprisonment" should be read to include "imprisonment for life". The learned counsel submitted that, with great respect, the view of the Division Bench in Palanisamy's case (cited supra) is not correct. The learned counsel submitted that the decision in Ganapathy, In Re (1982 L.W. (Crl) 217), where it was held that a person convicted and sentenced to undergo imprisonment for life would not be covered by Section 8 of the Tamil Nadu Borstal Schools Act had been overruled in State of Andhra Pradesh V. Vallabhapuram Ravi (1984 S.C.C. (Crl) 635). The learned counsel submitted that in Ramasamy's case (cited supra), the Division Bench held that on a consideration of the various decisions of the Supreme Court while sustaining the conviction of the appellant who was sentenced to imprisonment for life, had quashed the sentence. The learned counsel submitted that if the Division Bench which heard Palanisamy's case (cited supra) was not inclined to agree with this view, then the proper course would have been to refer it to a Full Bench.

3. Mr. Abudu Kumar Rajarathinam, learned counsel who had assisted the Court in Palanisamy's case (cited supra) submitted that it is interesting to note that in W.P.MD.No.4674 of 2006 which was a public interest litigation dealing with "adolescent offenders" prior to their conviction, it was held that such adolescent offenders should be kept in the control of Borstal Schools and not be detained in a regular prison. The learned counsel submitted that the definition in Section 2(1) makes it clear that the protection of the Act is given to a person who has been convicted with an offence and not to a person at a pre-conviction stage and in spite of this in the above matter, the Division Bench had clearly held that they are entitled to the provisions of the Act and it is ironic that, when persons who are not covered by the provision are given protection, the persons who come under the definition of adolescent offenders are not protected, on the ground that the word "imprisonment" in Section 2(1) does not include "life imprisonment". The learned counsel submitted that such a narrow construction would defeat the object of the Act.

4. The learned Public Prosecutor drew a comparison between the language of Section 10 and 10A and submitted that while the words used in Section 10 is "adolescent offender", in Section 10A the word used is "offender". Therefore, it is clear that the person who is entitled to invoke Section 10A would not be an adolescent offender, or to put it in other words, is not a person who would fall within the definition of "adolescent offender" as per Section 2(1). The learned Public Prosecutor submitted that the word "transportation" used in Section 10A has been subsequently changed into "a sentence of imprisonment" and therefore, by virtue of the substitution of the word "imprisonment for life" in the place of "transportation" by the Code of Criminal Procedure Amendment Act 1955, the only logical conclusion that can be arrived at is that the term "adolescent offender" was not entitled to be applied to persons who were sentenced to undergo life imprisonment, but only to those persons who were sentenced to undergo imprisonment for a smaller term. The learned Public Prosecutor read out Section 10A and submitted that though the word used is "offender" the Legislature had made it clear that the persons who are entitled to invoke Section 10A would be persons who fall within the same age bracket as provided under Section 2(1), the definition section. The learned Public Prosecutor submitted that Section 10A of the Borstal Schools Act was a benevolent provision which enabled the State to treat persons sentenced to undergo life imprisonment as though they are persons who are entitled to invoke Section 8. The learned Public Prosecutor submitted otherwise the word "as if"

would not have any meaning. According to the learned Public Prosecutor, the decision in Palanisamy's case laid down the correct law.

5. We have carefully considered the sections extracted above and also the various decisions of the Supreme Court where the provisions of the Borstal Schools Act are dealt with and also the object of the Act and important International Conventions, to which India is a signatory and which will have to be applied in situations where there is no local law or municipal law contrary to the said international convention.

6. The crux of the matter is, whether the Court has the jurisdiction to give the protection of the Tamil Nadu Borstal Schools Act to a person who has been convicted of a offence punishable with imprisonment for life or whether it is the exclusive power of the State under Section 10A of the Act. In Palanisamy's case (cited supra), the Division Bench was of the opinion that the Court did not have the jurisdiction and differed from the judgment in Ramasamy's case (cited supra). We will look at this issue from the following angles, to arrive at the answer.

7. Why should an adolescent be treated differently?

7.1. The Statement of Objects and Reasons to The Tamil Nadu Borstal Schools Act, 1925 (Act No.5 of 1926) reads thus:

"The object of the Bill is to provide for the detention of adolescent offenders in special institutions in which they will be given industrial training and other instruction and subjected to such disciplinary and moral influences as will conduce to their reformation. It is now generally recognised that the period of adolescence is the most critical in an individual's life 'when the mind is specially susceptible to fresh impressions and when it is peculiarly important to prevent habits of immorality and crime from being formed, and that it is undesirable from all points of view to familiarise adolescents with ordinary jail life and bring them into contact with adult prisoners.

The experiment has been made during the last few years of sending adolescent prisoners to the Borstal School at Tanjore in order to bring them under reformatory influences - the main features of the system being the special and individual training of the inmates and conditional release of such of them as appeared to deserve the privilege to enable them to enter the service of the societies or individuals. The results of the experiment have been satisfactory and the Bill is framed with a view to the expansion and extension of the system. The chief defect of the existing system is the admission in Borstal cannot profit by the Borstal treatment. The present procedure about releases is also cumbrous as every case has to be dealt with under section 401 of the Criminal Procedure Code.

The Bill is intended to remove these defects. It empowers certain clauses of Courts to pass orders detaining adolescent offenders - Those who are not less than 16 and not more than 21 years of age - in Borstal School for a term of not less than three years, instead of sentencing them in the ordinary way to imprisonment. Provision is made, subject to rules made by the Local Government, for the transfer to Borstal schools of adolescent offenders, whether convicted before or after the passing of the Act. A system of conditional releases on licence is also introduced with the necessary provisions for revocation and for forfeiture of a license once issued".

So, this is the object of the Act, and the purpose which should be advanced when we construe the provisions of the Act.

7.2. The relevant provisions of the Tamil Nadu Borstal Schools Act, 1925 are Sections 2(1), 8, Section 10 and 10-A and they read as follows:

"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 give security under Section 106 or 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;

....."

"8. Power of Court to pass sentence of detention in Borstal School - 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 persons of bad character, be subjected 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 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.

(2) Before passing a sentence of detention in a Borstal school under sub-section (1), the Court--

(a) shall call for a report from the Probation Officer of the area in which the offender permanently resided at the time when he committed the offence and shall consider such report;

(b) shall consider any other report or representation which may be made to it; and

(c) may make such further enquiry as it think fit, 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.

(3) The report of a Probation Officer referred to in sub-section 2 shall be treated as confidential:

Provided that the Court may, if it so think fit, communicate the substance thereof to the offender and may give him an opportunity of producing such evidence as may be relevant to the matter stated in the report."

"10. Power of Inspector-General to transfer prisoners to Borstal School - The Inspector-General may, subject to rules made by the State Government, if satisfied that any adolescent offender undergoing 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."

"10-A. Power of State Government to transfer offenders sentenced to transportation to Borstal Schools -

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."

7.3. In Pratap Singh V. State of Jharkhand and another (2005 (3) SCC

551), the Constitutional Bench held that the law laid down in Arnit Das vs. State of Bihar (2000 (5) S.C.C. 488) was no longer good law and it was not correct and that Umesh Chandra V. State of Rajasthan (1982 2 SCC 202) was correct and that the relevant date for application of the Juvenile Justice Act is the date of the occurrence and not the date of trial or the date of production of the accused before the Court. Though that was in the context of juveniles, some of the observations of the Supreme Court where reference is made to International Conventions are equally relevant when we deal with adolescent offenders and they are extracted hereunder :

"46. Rule 17 provides for guiding principles in adjudication and disposition which reads as under:

'17.1. The disposition of the competent authority shall be guided by the following principles:

(a) The reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of the society.

(b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum.

(c) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response.

(d) The well-being of the juvenile shall be the guiding factor in the consideration of her or his case.

...

106. We do not intend to say that no other view is possible. But in a case of this nature where an additional protection had been granted pursuant to or in furtherance of the international treaties and keeping in view the experience which had been gathered by Parliament after coming into force of the 1986 Act, we think that it should be read in such a fashion so that the extended benefit can be granted even to the juvenile under the 2000 Act."

Therefore, the present Act, where additional protection has been given to adolescent offenders, should be read in such a fashion as to give maximum benefit to such offenders.

7.4. It is noticed that in G.O. Ms. No.1094 dated 06.05.1987, the State considered whether Section 10 and 10(A) of the Tamil Nadu Borstal Schools Act should be amended suitably so as to transfer the inmates of the Borstal Schools to the Central Prison, after they have completed the age of 23 years to serve the unexpired portion of their sentence. Since the Inspector General of Prisons was of the opinion that release of hundreds of prisoners would demoralise the society, the then Advocate General gave his considered views in the matter and opined that the proposed amendment would not be in consonance with the Scheme and Object of the Borstal Schools Act and it would not be in order and therefore, the Government accepted the view of the Advocate General and directed that the adolescent offenders, who are transferred from the Central Prison to the Borstal School in accordance with the terms of Section 10 of the Section 10 of the Tamil Nadu Borstal Schools Act, 1925 should be released on the date they attain the age of 23 years and that they need not be transferred to the Central Prison to undergo the unexpired portion of their sentence of imprisonment. So, this Court's approach should also be to take that view which would extend the benefit to the maximum extent, without doing violation to the sections of the Act, and even if another view was possible we should reject the narrower one.

8. What is our National Policy for the welfare of children ? 8-A. In Sheela Barse (II) and others Vs. Union of India and others (1986 S.C.C. (Crl) 352), the Supreme Court highlighted this as follows:

"If a child is a national asset, it is the duty of the State to look after the child with a view to ensuring full development of its personality. That is why all the statutes dealing with children provide that a child shall not be kept in jail. Even apart from this statutory prescription, it is elementary that a jail is hardly a place where a child should be kept. There can be no doubt that incarceration in jail would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society. It is a matter of regret that despite statutory provisions and frequent exhortations by social scientists, there are still a large number of children in different jails in the country as is now evidence from the reports of the survey made by the District Judges pursuant to our order dated April 15, 1986. Even where children are accused of offences, they must not be kept in jails. It is no answer on the part of the State to say that it has not got enough number of remand homes or observation homes or other places where children can be kept and that is why they are lodged in jails. It is also no answer on the part of the State to urge that the ward in the jail where the children are kept is separate from the ward in which the other prisoners are detained. It is the atmosphere of the jail which has a highly injurious effect on the mind of the child, estranging him from the society and breeding in him aversion bordering on hatred against a system which keeps him in jail. We would therefore, like once again to impress upon the State Governments that they must set up necessary remand homes and observation homes when children accused of an offence can be lodged pending investigation and trial. On no account should the children be kept in jail and if a State Government has not got sufficient accommodation in its remand homes or observation homes, the children should be released on bail instead of being subjected to incarceration in jail."

So, the fresh, impressionable and malleable minds of the adolescent offenders cannot be allowed to harden by their incarceration along with criminals. If there is a hope of reformation and restoration of a young offender by training and education, the State must keep that hope alive. We should create that atmosphere for the adolescent offender which would help him to 'grow out of' the criminal tendencies, so that his mind is not concretised into a criminal one.

9. Now, we will see how the Supreme Court and High Courts have considered the provisions of the Act.

9.1. The decision in 1984 S.C.C. (Crl) 635 (cited supra), makes it clear as to how the Act should be understood, and in particular, Section 10-A :

"Its object was to make provision for the establishment and regulation of Borstal Schools for detention and training of adolescent offenders."

...

"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 a Borstal School for a term which shall not be less than two years and shall not exceed five years. In no case he can be detained in a Borstal School beyond the age of twenty three years. This outer limit of 23 years of age was introduced by an amendment made by the Madras Borstal Schools (Amendment) Act, 1936 (Madras Act 19 of 1936). Before passing such order of detention the court should satisfy itself about matters set out in the proviso to Section 8 of the Act including any report made by the probation officer of the area concerned. It is seen that the sentence of detention is passed in lieu of the sentence of imprisonment which may have been passed. Hence the detention ordered under the above provision is not imprisonment and the Borstal School where the adolescent offender is detained is not a prison. This is also the view taken by Beaumont, C.J. in Emperor v. Lakshman Shivram, A.I.R. 1933 Bom 461 (FB) which was a case arising under the Bombay Borstal Schools Act, 1929. Merely because Section 5 of the Act has made the Prisons Act, 1894 and Prisoners Act, 1900 applicable to a Borstal School regarding matters not otherwise provided for does not make it a prison or its inmates prisoners. The period of detention has no relationship to the sentence of imprisonment that could have been imposed under law. It is based on the opinion of the court as to what is conducive to the reformation of the person detained and the repression of the crime and in no case it can exceed five years or can be beyond the date on which the person attains 23 years of age. Section 10-A of the Act which was introduced by the Madras Borstal Schools (Amendment) Act, 1939 (Madras Act 13 of 1939) provides that the State Government may, if satisfied that any offender who has been sentenced to imprisonment for life and who at the time of conviction was not less than 16 years of age 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 period of sentence. The second sentence in Section 10-A of the Act is a deeming provision. It provides that the provisions of the Act shall apply to such offender as if he had been originally sentenced to detention in a Borstal School. In view of this clause it is contended and we feel rightly that it would not be open to detain 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:

..."

"In In re T. Munirathnam Reddi, A.I.R. 1955 Andhra 118, Subba Rao, C.J. dealing with the case of an adolescent offender who was 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 first 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 a young man of good antecedents in an emotional state. In our view, Section 10-A, Borstal Schools Act is really intended to govern the case of such accused. We, therefore, while sentencing the first accused to transportation for life, recommend his case to the Government to take action under Section 10-A and to commit him to the Borstal School for such period as they think fit'."

"The High Court of Kerala appears to be unwilling to give full effect to the words "as if" in the second sentence of Section 10-A in view of the presence of the words "the whole or any part of the unexpired residue of his sentence" at the end of the first sentence in Section 10-A of the Act. It is true that there is some apparent contradiction between the two sentences. But having regard to the object of the legislation and the meaning of the words "as if" in the second sentence, we should extend all the privileges available to an offender detained under Section 8 of the Act to a prisoner who is directed to be transferred to a Borstal School under Section 10 -A. The object of the legislation is to reform offenders who have committed acts visiting them with the penalty of undergoing prison life when they were between 16 and 21 years of age and that is sought to be achieved by taking them away from the company of adult prisoners whose continued association in a prison would have serious adverse influence on their character. If every person who is transferred under Section 10-A to a Borstal School is to remain there until he serves out the entire period of imprisonment for life, the Borstal School would soon become a prison consisting of "lifers"

and its other inmates who are detained under Section 8 would be keeping company with adult offenders, thus defeating the very 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."

"...It is well known that persons who commit acts which are forbidden by law are ordinarily classified into groups on the basis of their age for determining their liability under criminal law. Section 82 of the Indian Penal Code declares that nothing is an offence which is done by a child under seven years of age. Section 83 of the Indian Penal Code provides that nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. Children who are below 15 or 16 years of age are entitled to the protection of certain beneficent provisions in the various Children's Acts in force in different parts of the country. Section 360 of the Code again provides for releasing on probation of good conduct or after admonition a person under twenty-one years of age who is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction i s proved against him. The Act with which we are concerned in this case is again one such law which attempts to treat an adolescent offender in a humane way. The classification of offenders on the basis of age for purposes of criminal law is, therefore, beyond reproach."

"Considering the case in the light of the observations made in Maru Ram's case I feel that Section 10-A of the Act remains unimpaired and it has to be given full effect even after the enactment of Section 433-A of the Code. The contrary view expressed by the Madras High Court in In re Ganapati cannot be accepted as correct."

We must bear in mind the words above which refers to this law as one which "attempts to treat the adolescent offender in a humane way". So, we are bound to adopt that construction which strengthens this attempt. 9.2. In Karupayee vs. State (1997 (1) L.W. (Crl.) 15), a Division Bench of this Court observed as follows :

"So, the view taken by the Supreme Court is that when a person was detained in a Borstal School, he shall not be transferred to the prison after he served out the term of the detention in the school with reference to the age as prescribed under the Act, as it will defeat the very object of the Borstal School Act."

9.3. In Kittan's case (cited supra), Horwill, J., speaking for the Bench, observed thus :

"The learned advocate for the appellant concedes that the evidence has made out a case of murder; but he contends that the appellant should be dealt with under S.10A, Borstal Schools Act. It is conceded that S.8 would not apply; but it seems clear that under S.10A of the Act, the Provincial Government has power, in a case where an offender is of the age of the appellant, who is 17 years, and has been sentenced to transportation for life, to send him to a Borstal School if they consider that he might with advantage be detained in such an institution. The appellant is psychologically somewhat abnormal and not a hardened criminal. If no action is taken under S.10-A of the Act, it is difficult to think what suitable action can be taken against the appellant. His crime does not merit a life sentence; and association with hardened criminals in an ordinary jail would cause his character to deteriorate. On the other hand, he might under the sympathetic guidance of the Superintendent of a Borstal School, be helped to adapt himself better to the problems of life."

The following phrases from the above paragraph guide us in the present case -

"he might with advantage be detained", "association with hardened criminals in an ordinary jail would cause his character to deteriorate", "sympathetic guidance", "to adapt himself better". That construction which will satisfy the above criteria will be the correct one.It is necessary to remember that the concesssion that S.8 will not apply was given at a time when "transportation"

was a punishment which could be awarded, and to an offender who was sentenced to transportation the definition will not apply.

9.4. In re Ganapathy's case (1982 L.W. (Crl) 217), paragraphs 16 and 17 from Public Prosecutor vs. Nagappa Poojari (1947 M.W.N. Crl. ) have been extracted as follows :

"16. An interesting question as to the interpretation of S.8 and the conditions precedent for the application of the said section arose in Public Prosecutor vs. Nagappa Poojari (1947 M.W.N. Crl. 6). In that case, the Sessions Judge who tries the accused refused to apply S.8 of the Act, holding that there was no evidence that the accused had criminal tendencies or bad association as contemplated therein. Subba Rao, J., as he then was, speaking for the Bench, while examining the interpretation given by the learned trial Judge, has observed as follows :

"The condition precedent to the application of S.8 is that the adolescent offender should have criminal habits or tendencies or association with persons of bad character.

If the learned Judge's interpretation of that S.8 were to be accepted, it would mean that a person who has no criminal tendencies would be sent to the ordinary jail whereas a person with criminal tendencies will be sent to the Borstal School. This interpretation would defeat the object of the Act itself. If a person without criminal tendencies is sent to a jail, there is greater danger of his contamination by his association with hard criminals, whereas the object of the Act is to send such people to a Borstal School, so that they may have good training and come out of it to become useful citizens. The words 'criminal tendencies' should not be given a narrow interpretation. If a boy had no criminal tendencies, he would not be convicted for any crime at all. The fact that the boy is convicted for one offence or other under the Indian Penal Code shows, in the view of the Court, convicting him that he has criminal tendencies. He would interpret the section to mean that whenever an adolescent was convicted of an offence, ordinarily he should be given the advantage of being out in the Borstal School so that by long association and training he would come out of the termination of the stay as a useful citizen of the country."

Mack, J., while agreeing with the judgment of Subba Rao, J., has observed that a criminal tendency does not manifest itself only in acts involving dishonesty, such as theft or cheating and that a person who, owing to lack of self-control or as a result of his environment, is unable to restrain himself and commits an offence of either grievous hurt or homicide by using a deadly weapon without regard to consequences, exhibits a criminal tendency, just as much as a person who steals and that it is difficult to lay down hard and fast conditions as to the type of adolescents who should be sent to a borstal school.

17. S.8(2) deals with the statutory formalities to be observed by the Court before passing the order of borstal detention, and as per that provision, the Court should call for a report from the Probation Officer and consider the same or any other report or representation which may be made to it and also may make any further enquiry as it thinks fit 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. It is within the discretionary power of the court to communicate the substance of the report of the Probation Officer to the offender, thereby affording him an opportunity of producing such evidence as may be relevant to the matter stated in the report."

So, it is clear that we must avoid that interpretation which would defeat the object itself.

9.5.In Subbhash Chand v. State of Haryana ((1988) 1 S.C.C. 717), the claim of the convict that he was entitled to the benefits of Borstal Schools Act was rejected. The petitioner in that case was an adolescent, admittedly being less than 21 years of age, but the Supreme Court rejected his case, because the convict was governed by the provisions of the Punjab Borstal Act and the definition of 'offence' in Punjab Borstal Act is different and the Supreme Court in the said decision drew the distinction between the application of Punjab Borstal Act and the Andhra Pradesh Borstal Schools Act. Admittedly, the Andhra Pradesh Borstal Schools Act and the Tamil Nadu Borstal Schools Act are identical. Therefore, the above decision will not in any way affect the adolescent offenders who are governed by the Tamil Nadu Borstal Schools Act. The Supreme Court held as follows :

"3. Under the Punjab Act, "offence" has been defined in Section 2(4) to mean -

"an offence punishable with transportation or rigorous imprisonment under the Indian Penal Code other than-

(a) an offence punishable with death;"

Hava Singh case, (1987) 4 SCC 207 did not refer to the definition of "offence" and relied upon the decision in the case of Ravi 2 though the scheme of the Andhra Act was very different. The Andhra Act known as the Andhra Pradesh Borstal Schools Act, 1925, does not have the definition of "offence" and there is no exclusion as provided in the Punjab Act.

4. What is excepted in the definition is an offence which is punishable with death. Section 302 of the Indian Penal Code provides:

"Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine."

One of the punishments for the offence of murder is death and, therefore, the offence of murder would be covered within Section 2(4)(i)(a) of the Punjab Act and to such a conviction the Punjab Borstal Act would have no application. Support for such a view is available from several decisions of different High Courts. Section 562(1) of the Code of Criminal Procedure of 1898 as amended in 1923 brought in the phrase:

"Punishable with death or transportation for life."

In Emperor v. Janki, AIR 1932 Nag 130 that phrase was interpreted disjunctively and women convicted of an offence for which transportation for life was one of the punishments provided were held ineligible for release on probation under Section 562. It was pointed out that the words "death or transportation for life" must be read as referring to offences the penalty for which provided by the Penal Code contains either death or transportation for life as one of the punishments awarded and not necessarily both. Reliance was placed on a Full B ench decision of the Rangoon High Court in King Emperor v. Nga San Htwa, AIR 1927 Rang 205 which was dealing with a similar phrase occurring in Section 497 of the old Code. A Division Bench of the Madhya Pradesh High Court in Chetti v. State of Madhya Pradesh, AIR 1959 MP 291 also took the same view. In Emperor v. Bahawali, AIR 1928 Lah 920 it was held that as one of the alternative punishments for that offence under Section 307 of the Penal Code, is transportation for life, it is obvious that Section 562 is not applicable and the accused must be sentenced to rigorous imprisonment and fine. The Allahabad High Court in the case of State v. Sheo Shanker, AIR 1956 All 326, the Madras High Court in Public Prosecutor of Madras v. Paneswara Rao, AIR 1946 Mad 173, the Rajasthan High Court in Sarkar v. Jalamsingh, AIR 1950 Raj 28 and Bombay High Court in Naranji Premji v. Emperor, AIR 1928 Bom 244 have taken the same view."

So, all these decisions, and especially the Vallabhapuram Ravi's case, which has been quoted extensively above, clearly show that -

(a) classification of offenders on the basis of age is legal;

(b) even if there are some contradictions in the statute, we must extend all privileges to the offenders;

10. Can the word 'imprisonment' in Section 2 of the Act be construed to include imprisonment for life ?

10.1.Section 53 of the Indian Penal Code provides for the following punishments to which offenders will be liable under the provisions of this Code are:-

Firstly, - Death;

a[Secondly, - Imprisonment of life;

b[*****] Fourthly, - Imprisonment, which is of two descriptions, namely:-

(1) Rigorous, that is, with hard labour;

(2) Simple;

Fifthly, - Forfeiture of property;

Sixthly, - Fine.

[a] was substituted for the words "secondly, - Transportation" by the Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955), S.117 and Schedule, item 1 (1-1-1956) [b] Clause "Thirdly, - Penal servitude" omitted by Criminal Law (Removal of Racial Discriminations) Act, 1949 (17 of 1949), S.2(1) (6-4-1949) Therefore, when the Act came into force, "imprisonment for life" was not one of the punishments enumerated under the Code itself. Hence, Section 10 (A) of the Act was enacted to bring even those offenders who were sentenced to transportation and not imprisonment. Such offenders who derive the benefit of the Act would suffer even more if they are sentenced to transportation. Therefore, it was provided that 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 years of age nor more than 21 years of age might, with advantage be detained in a Borstal School, as if he had been originally sentenced to detention under Section 8. But subsequently, by the amendment Act 26 of 55, the word 'transportation' was altered to "imprisonment of life". But we must bear in mind how the section read originally, where the definition referred to 'imprisonment' and not 'transportation' and Section 10A referred to 'transportation'.

10.2.In 1982 L.W.(Crl) 217 (cited supra), the Division Bench referred to a decision of this Court in Re Yakub (C.A.1223/70, dt.2nd December, 1971), wherein the Bench drew the distinction between the position under the Tamil Nadu Children Act and the Tamil Nadu Borstal Schools Act and held that for the purpose of Tamil Nadu Children Act, there will be no difference between imprisonment and imprisonment for life. They referred to and agreed with the view taken by another Division Bench in Criminal Appeal Nos.37 to 41 and 141 of 1960 dated 1st February 1966, they referred to the distinction in S.53 between the terms "imprisonment for life" and "imprisonment". But, however in C.A.1223/70 dated 2nd December 1971, Re Yakub's case, the Bench still maintained that the distinction between "imprisonment for life" and "imprisonment" is crucial in Borstal Schools Act and that where the offence is punishable under imprisonment for life, it is the State Government alone which can act and the Court cannot act under S.8. The question that came before the Division Bench was "whether the order of the learned trial Judge sentencing the accused to undergo imprisonment for life and further recommending to the Government of Tamil Nadu for passing an order under S.10-A of the Act, directing him to be transferred to a Borstal Schools Act where he is to be detained for a certain number of years out of the total period of imprisonment imposed on him, is sustainable, or whether the trial Judge should have straightaway applied S.8 of the Act and sentenced the accused to borstal detention and while deciding that question they considered the difference between the applicability of Section 8 and Section 10(A) and held, "24. Thus, it is clear that there is a vast difference between the scope and applicability of S.8 and S.10-A of the Act, in that the Court can exercise its power only in cases where the sentence of imprisonment simpliciter falling under Cl.4 of S.53, I.P.C., is to be imposed, and not in cases where the sentence of imprisonment for life falling under Cl.2 of S.53 is to be imposed, in which cases only the State Government has got the discretion to order borstal detention under S.10-A of the Act. See Krishnaswami V. The King (1948 M.W.N. (Crl.) 117), Periaswami Asari V. The King (1948 M.W.N. Crl. 157) and the judgments of this Court in Criminal Appeals Nos.803/60 and 983/60, Judgment of this Court in Crl.App. No.803/60, dt. 25th October, 1961, and Judgment of this Court, Crl.App. No.983/60 dated 30th January, 1962, in which recommendations were made to the State Government under S.10A of the Act in cases similar to the present one"

and while deciding what is the maximum period for which an offender to whom Section 10A to be applied, held that, "therefore, it would follow in such cases an offender after attaining the maximum age upto which he could be detained in the borstal school, has necessarily to be transferred to the prison so that he could serve the unexpired portion of the sentence."

10.3.We have seen that in Vallabhapuram Ravi's case, the Supreme Court overruled this decision and held that once the protection of Section 10A is extended to an offender, he has to be treated as if under Section 8 of the Borstal Schools Act relating to maximum period would apply and therefore, the question of sending the offender back to the prison would not arise. In that decision, it has also been held that after an order under Section 10A is passed, Section 8 would apply. This means, and this is important, that it is not adolescent offenders who are life prisoners, or sentenced to life imprisonment, who cannot get the protection of Section 8; so the apparent inhibition that they are 'out of bounds' is without basis. Even in Ganapathy In re's case, the Division Bench noticed the anomaly viz., the purpose for which the borstal detention was ordered would completely be defeated by such a re-transfer to the prison, because the object of detention in pursuance of this Borstal Schools Act is for giving industrial training and other instructions and the persons so detained are subject to disciplinary and moral influences, as will be conducive to their formation and the prevention of crimes. Only for the purpose of carrying out the above object, S.4 empowers the State Government to make rules with regard to the treatment, maintenance, education (professional, vocational or technical training), control of inmates etc., To send back such a person after getting such a training, to the prison, thereby allowing him to mingle with the hardened, incorrigible and habitual offenders, would, in our view, completely nullify the reformation that would have been brought about with respect to the offender during his borstal detention."

10.4.In 2006 2 L.W. (Crl)883 (cited supra), the Division Bench held that though the decision in Ganapathy In re was overruled, it was only that portion of that judgment which declared that after the expiry of the detention of Borstal School, the person sentenced to life imprisonment must go to regular prison was reversed. In Ramasamy's case (cited supra), the Division Bench of this Court on the basis of Vallabhapuram Ravi's case accepted the contention that the Sessions Judge was not justified in sentencing the accused imprisonment for life, since admittedly the accused was an "adolescent offender" at the time of conviction he was below 21 years of age. The cases referred to in In re Krishnaswamy (AIR 1949 Mad 109(1) and In re T. Munirathinam Reddi (AIR 1955 Andhra 118) will really not help us in the question that is raised in this case because they were all cases where the offender was sentenced to transportation and therefore, clearly Section 2(1) would not apply to such offenders. Section 2(1) is applicable only to cases where the sentence is one of imprisonment, the issue is whether we should bring life convicted adolescent offenders under the protection umbrella.

10.5.In the decision in W.P. MD. No.4671 of 2006 which deals with adolescent offenders prior to their conviction, it was held as follows:

"On a total analysis of the above referred to decisions and a close reading of the provisions contained in Sections 2(1), 8 and 10-A of the Madras Borstal Schools Act, read along with Sections 167 and 309 of the Criminal Procedure Code, we are convinced that the prayer of the petitioner has to be instantaneously ordered in order to arrest any future mishappening taking place in respect of the custody and detention of 'adolescent offenders' at the pre- conviction stage. There is no point in stating that the Madras Borstal Schools Act does not talk of a treatment to be meted out to an adolescent offender prior to his conviction and state that such an 'adolescent offender' can be kept in detention during pre-conviction stage at the discretion of the concerned judicial Magistrate for ordering such a detention of custody in a regular prison. If after conviction of an adolescent offender it has been thought of by the legislature to order such detention only in a Borstal School, it will have to be held that at the pre-conviction stage also the same principle should be applied and the Judicial Magistrate concerned, while ordering the detention of an adolescent offender, should ensure that such detention is entrusted with the custody of the Borstal School and not in a regular jail. If any other course is adopted by the Judicial Magistrate, it would run counter to the object and purport of the enactment, namely The Madras Borstal Schools Act, and the same cannot be permitted to be continued."

The Division Bench did not make any difference between the "adolescent offenders" who were charged with offences for which the punishment of imprisonment for life was sentenced and also the "offenders" who were charged with offences for which the punishment of imprisonment for life was sentenced. In any event, in Kamalanantha's case the Supreme Court has clearly held that imprisonment includes imprisonment for life also.

10.6.In Kamalanantha v. State of T.N. ((2005) 5 S.C.C. 194), it was held thus at page 229 :

"76. The contention of Mr Jethmalani that the term "imprisonment" enjoined in Section 31 CrPC does not include imprisonment for life is unacceptable. The term "imprisonment" is not defined under the Code of Criminal Procedure. Section 31 of the Code falls under Chapter III of the Code which deals with power of courts. Section 28 of the Code empowers the High Court to pass any sentence authorised by law. Similarly, the Sessions Judge and Additional Sessions Judge may pass any sentence authorised by law, except the sentence of death which shall be subject to confirmation by the High Court. In our opinion the term "imprisonment" would include the sentence of imprisonment for life."

10.7.To the same effect is the judgment of the Division Bench (In Re Yakub, C.A. No.1223 of 1970 dated 2.12.1971) which was quoted in re Ganapathy's case. Though, of course, in re Yakub's case, the Court held that the distiction must be retained in Bortsal Schools Act But in view of the law laid down by the Supreme Court that imprisonment includes imprisonment for life, we see no reaon why we should understand Section 2(1)as including only those who are sentenced to imprisonment for a term, and not offenders who are sentenced to imprisonment for life. A construction of such nature would neither be in consonance with the spirit of the Act, but it would also be contrary to the law laid down by the Supreme Court in Kamlanantha's case. We have already seen that in Vallabhapuram Ravi's case, the Supreme Court had construed Section 10A in favour of the "adolescent offenders" and held that the words 'unexpired residue of the sentence' cannot mean that the adolescent offender should be sent back to prison so that the protection given by Section 8 would apply in full force, but it would mean that they should be sent to Borstal Schools, which would be for a period of five years or till the offender reaches the age of 23 years. 10.8.Insofar as the manner in which the Section has to be interpreted, the Supreme Court in New India Assurance Co. vs. Nusli Neville Wadia (2007 (14) SCALE 556), while dealing with the question how to read the provisions of an Act in a proper and effective manner which would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations, quoted the following observations of Justice Aharon Barak of the Supreme Court of Israel on purposive interpretation :-

"Barak in his exhaustive work on 'purposive construction' explains various meanings attributed to the term 'purpose'. It would be in the fitness of discussion to refer to purposive construction in Barak's words :

"Hart and Sachs also appear to treat 'purpose' as a subjective concept. I say 'appear' because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislator's shoes, they introduce two elements of objectivity - first, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to enquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably"."

We have already seen that the position existing at the time of the Act was that there was no imprisonment for life. The offenders who came under Section 10-A were those offenders who were sentenced to transportation. Now, to understand how one should interpret Acts when a new state of affairs comes into existence, we refer to the following extract from Royal College of Nursing of the UK vs. Dept. of Health and Social Security, (1981) 1 All ER 545 :

"In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertance, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy comes into existence, the courts have gto consider whether they fall within the parliamentary intention. They may be held to do so if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend on the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or cimcumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, 'What would Parliament have done in this current case, not being one in contemplatkion, if the facts had been before it?", attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself'."

10.8. In this case, the answer is obtained in terms of the Act itself. We have seen why the legislature felt that imprisonment would not be in the interest of the psychological and emotional development of the young offender. If so, the only way to interpret the Act would be to construe the word 'imprisonment' to include 'imprisonment for life'. The amendment to Section 10- A was purely consequential to the amendment of the Code of Criminal Procedure. But, when this issue is raised, we can answer it only like this, i.e., in favour of the adolescent. Therefore, the inclusion of the phrase "imprisonment for life" within the definition of the "adolescent offender" will alone be in consonance with the spirit of the Act.

11. Now, we shall examine the relevant provisions of the Tamil Nadu Borstal Schools Act, viz., Sections 8, 10 and 10-A :

11.1.The Act was intended to protect "adolescent offenders" from close contact with adult prisoners so that they are not set on the path of crime irreversibly.

11.2.Section 8, which has been extracted above, clearly lays down that the sentence of detention in a Borstal Schools Act shall not be less than three years and shall not exceed 5 year 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. Therefore, the Borstal School detention shall not exceed five years and in no case shall extend beyond the adolescent offender attaining the age of 23. Section 10A provides for detention of an offender in a Borstal School, who is sentenced to transportation with a further clause that he has to serve the whole or any part of the unexpired residue of his sentence in that institution.

11.3.An important difference between Section 8 and Section 10 and 10(A) is relevant for the purpose of this case. Section 8 deals with the power of Court to pass sentence of detention in Borstal School. It provides that the Court which has the jurisdiction under this Act shall in lieu of passing a sentence of imprisonment may 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 to the adolescent offender who by reason of his criminal habits or tendencies, or association with persons of bad character, be subjected to detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime.

11.4.If we compare this with the language in The Juvenile Justice (C & P of Children) Act, 2000, the bar under in this Act is absolute.

16. Order that may not be passed against juvenile - (1)Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or life imprisonment, or committed to prison in default of payment of fine or in default of furnishing security :

Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government.

(2) On receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit:

Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the juvenile could have been sentenced for the offence committed.

17. Proceeding under Chapter VIII of the Code of Criminal Procedure not competent against juvenile - Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 ( 2 of 1974) no proceeding shall be instituted and no order shall be passed against the juvenile under Chapter VIII of the said Code."

No juvenile in conflict with law shall be sentenced to death or committed to prison in default of payment of fine or in default of furnishing security. No proceedings shall be instituted and no order shall be passed against the juvenile under Chapter VIII of the said Code. There can be no joint proceedings of juvenile and person not a juvenile and therefore, where a juvenile is concerned, the Juvenile Justice Act is the complete Code and the ordinary Court ceases to have jurisdiction to try a juvenile, either he is a sole accused or where he is a co-accused.

11.5.Whereas, the language of Section 8 of the Borstal Schools Act is clearly different. The Court shall consider whether in lieu of passing a sentence of imprisonment, it shall pass a sentence of detention in Borstal School and before passing a sentence of detention, the Court shall call for a report from the Probation Officer where the offender permanently resided and any other report or representation it shall make further enquiry at it thinks fit as to the suitability of the case for treatment in Borstal Schools Act. Therefore, the Court is given the power to decide the suitability of the offender to be sent to Borstal detention in lieu of imprisonment. An apprehension may arise whether undeserving convicts would get the benefit of this provision merely because they are adolescent offenders. But, this apprehension must be rejected as baseless since Section gives the Court the discretion to pass either a sentence of imprisonment or detention in a Borstal School. It is the Court which has the duty to exercise this discretion properly. But, Sections 10 and 10-A give the power to the Inspector General of Police and the State Government to transfer prisoners to Borstal School. Neither of the two authorities have the power to pass a sentence of detention in a Borstal School. Only the Court has that power. The power under Sections 10 and 10-A is a power of transfer to a Borstal school after a sentence of imprisonment has been passed by the Court. Section 10 which deals with adolescent offender undergoing 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, directs 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. Similarly, Section 10 (A) also deals with power of State Government to transfer offenders who have been sentenced to transportation. Therefore, Section 8 is a first stage where in lieu of a sentence of imprisonment, sentence of Borstal School detention is passed. Section 10 and 10(A) come later where a sentence of imprisonment has been passed and thereafter, the Inspector General or the State Government,as the case may be, shall direct transfer of that offender to Borstal School and other provisions shall apply as if he had been originally sentenced to detention in a Borstal School under S.8.

11.6.If the Section is so read then it would not do violation either to the objects and the scheme of the Act or the meaning of the Section.

12. Sentencing Adolescent Offenders :

The reason for considering an alternative to imprisonment for adolescent offenders explained in the Objects and Reasons of the Act itself and also in the extracts of some of the above mentioned judgments. In Lingala Vijay Kumar vs. Public Prosecutor, (1978) 4 S.C.C. 196, seven appellants, all aged about 17, were convicted for dacoity. The Supreme Court referred to them as selfless ideologues who wanted to 'secure economic justice' and in that context, the Supreme Court had quoted from Hans Kelson in a farewell lecture in Berkley with regard to what is meant by ends of justice and the following are the observations :

"Thus, behind the question of Pilate, 'What is truth'? arises, out of the blood of Christ, another still more important question, the eternal question of mankind, What is Justice?

No other question has been discussed so passionately; no other question has caused so much precious blood and so many bitter tears to be shed; no other question has been the object of so much intensive thinking by the most illustrious from Plato to Kant; and yet, this question is today as unanswered as it ever was. It seems that it is one of those questions to which the resigned wisdom applies that 'man cannot find a definitive answer, but can only try improve the question'."

Some of the observations contained in the said judgment are relevant :

"...we feel impelled to make a few observations on prison justice since under the Court's mandate these seven teenagers are being sent into that world within the world which is substantially sight-proof and sound-proof. The court has responsibility to see that punishment serves social defence which is the validation of deprivation of citizen's liberty. Correctional treatment, with a rehabilitative orientation, is an imperative of modern penology which has abandoned jus talionis."

"By cruel treatment within the cell you injure his psyche and injury never improves. Nay, you make him recidivist, embittered and ready to battle with society on emerging from the jail gates.

Again, in Hiralal Mallick vs. State of Bihar (1977) 4 S.C.C. 44, the Supreme Court observes 'criminality comes first, humanised sentence next'. The following extract is relevant:

"So we come up to the harm of long shut-up behind the bars. Subjected to hard labour that rigorous imprisonment implies and exposed to the deleterious company of hardened adult criminals, a young person, even if now twenty-one, returns a worse man, with more vices and vengeful attitude towards society. This is self-defeating from the correctional and deterrent angles."

In State of M.P. vs. Babbu Barkare, (2005) 5 S.C.C. 413, the Supreme Court observed as follows :

"Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread."

13. To conclude,

(a) The Sections should be construed keeping in mind the Objects and Reasons of the Act.

(b) When the object is borne in mind and sentencing is viewed from the angle of reforming the offender and making him a useful person of the society, and in view of the Supreme Court decisions mentioned above, we hold that the word 'imprisonment' in Section 2(1) must include 'imprisonment for life'.

(c) Section 8 gives the Court the discretion to decide whether the adolescent offender should be sentenced to imprisonment or be sent for detention to a Borstal School. So long as this discretion is exercised properly a sentence of imprisonment pronounced by a Court cannot per se be termed as illegal as in the case of a juvenile.

(d) Sections 10 and 10A come into operation after the sentence is passed and the offender has been imprisoned accordingly.

14. For all these reasons, the judgment in Ramasamy V. State (2000 (1) L.W. (Crl) 142) insofar as it holds that Section 8 of the Borstal Schools Act cannot apply to adolescent offenders who have been sentenced to imprisonment for life is not correct. The reference is answered accordingly. The habeas corpus petition may be listed before the appropriate court for passing orders.

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