P SHANMUGANATHAN Vs. SECRETARY TO GOVERNMENT HOME

JUDGEMENT

(1.) THE petitioner seeks for issuance of a writ of mandamus directing the respondents to furnish particulars regarding the "adolescent offenders" who are kept in prisons for transferring them immediately to the Borstal Schools established under the Madras Borstal Schools Act.

(2.) THIS is a public interest litigation. Considering the nature of the relief claimed in the writ petition, we sought for the assistance of the learned Additional Public Prosecutor who was graciously be pleased to assist the Court and came forward with an instantaneous solution to the otherwise everlasting misfortune that was prevailing in respect of the "adolescent offenders" prior to their conviction.

(3.) 5.1. Having heard the submissions of the learned counsel for the petitioner, when we called upon the learned Additional Public Prosecutor to respond, the learned Additional Public Prosecutor, without any hesitation, was pleased to state that the stand of the petitioner is fully justified and that it will be in order for the concerned Judicial Magistrate to direct detention of such "adolescent offender" only in Borstal Schools during the pre-trial stage also, if such custody is necessitated either under Section 167 or under Section 309 of the Criminal Procedure Code. The submissions of the learned counsel for the petitioner as well as the learned Additional Public Prosecutor are also fully supported by the decisions of the Hon"ble Supreme Court, which have been followed by the Division Bench of our High Court. 5.2. In the decision State of A. P. v. Vallabhapuram Ravi (supra), the Hon"ble Supreme Court, while dealing with the submission, namely, that Section 10-A of the Andhra Pradesh Borstal Schools Act, 1925 conflict with Section 433-A of the Code of Criminal Procedure, ultimately held as under in paragraph 21. "I am, therefore, of the view that Section 433-A of the Code would not operate in respect of persons dealt with under Section 10-A of the Act and that Parliament never intended while enacting Section 433-A to deny the benefit available to adolescent offenders under Section 10A of the Act. When once this conclusion is reached, the argument that by reason of Article 244 of the Constitution, the Act should yield in favour of a later. Central legislation which is repugnant to the Act would not arise because there would be no such repugnancy at all. If Section 433-A of the Code is kept out of the way, Section 10-A of the Act should be interpreted in the same way in which it was understood all along. So construed a person who is detained under Section 10-A of the Act in a Borstal school would have to be released on his attaining 23 years of age. My view receives support from the decision of the Court in Kunwar Bahadur v. State of Uttar Pradesh AIR 1979 SC 1509 : (1979) 4 SCC 494 which was a case under the U.P. Borstal Act, 1938, the relevant part of which read thus: It was then argued that so far as appellant Nand Kishore in concerned, he appears to be only 15 years at the time when the occurrence took place and it appears that when he was sent to prison, the jailor referred him to the Sewa Sadan under Section 7 of the United Provinces Borstal Act, 1938. Under this Section, where a prisoner is sentenced for transportation i. e. life imprisonment and is below the age of 21 years he should be sent to Borstal school where he cannot be detained for more than five years. The law thus contemplates that for such an offender, the sentence of five years will be equivalent even to a higher sentence of life imprisonment. It is not disputed before us that the appellant Nand Kishore had already served five years in that institution and has been released therefrom. The question, therefore, of his surrendering to serve the remaining sentence does not arise. With this modification the appeal is dismissed. 5.3. In the decision C. Elumalai v. State of Tamil Nadu (supra), the earlier decision reported in State of Andhra Pradesh v. Vallabhapuram Ravi (supra) was followed and it was categorically held to the effect