ASHOK KUMAR Vs. DELHI ADMINISTRATION

JUDGEMENT

(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 upto 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 undergone the maximum period of seven years for which he could have been detained under the Act, he was entitled to be released forthwith. The reliance of the learned counsel in support of his contention was on a decision of the Supreme Court reported in AIR 1987 SC 2001 (Hawa Singh v. State of Hary and). We may notice that a number of petitions based on the law laid by the Supreme Court in the above case were filed in the months of November-December, 1987 and have bee n heard together. As in most of those cases the provision of Section 433-A is not applicable ; the coiction and sentence having been announced prior to 18th December, 1978, those petitions are being decided separately. However, this very point that the appellanwas adolescent and being less than 21 years of age at the time of conviction even though after the 18th December, 1978 and as such was entitled to alteration of the sentence imposed on him to detention as provided under Section 5 of the Punjab Borstal Act, was urged before a Division Bench, of which one of us was a member, in an appeal pending before this Court. Keeping in view the principle arising out of Hawa Singh's case, the Bench converted the life sentence to that of detention for three years. That judgment was announced on 15th January, 1988. It appears that by then the Supreme Court had held in Subhash Chand v. State of Haryana & Others that the conclusion in Hawa Singh's case (Supra) was not correct. The latter judgment was reported in the press on 16th January, 1988 and the full judgment appeared in the 'Judgments Today' of 18th January, 1988. Their Lordships have held that "The Punjab Borstal Act does not have application to an offence punishable uader Section 302 of the Indian Penal Code. Therefore, the conclusion in Hawa Singh's case is not correct The petitioner is not entitled to the benefit of the Punjab Borstal Act as he has been sentenced to imprisonment for life for the offence of murder punishable under Section 302 Indian Penal Code for which the sentence of death is prescribed as an alternative."