A THANGAMMAL Vs. STATE

JUDGEMENT

(1.) 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.) 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.