BINDU ALIAS BINDU SELVAKUMAR Vs. HOME SECRETARY

JUDGEMENT

(1.) AFTER the judgment in W.P.No.4674 of 2006 (P.Shanmuganathan Vs. The Secretary to Government, Home Department, Fort. St. George, Chennai and another) and the Full Bench judgment in 2008(1) MLJ Crl.832 (A.Thangammal Vs. State Rep. by Home Secretary, Government of Tamil Nadu), several Habeas Corpus Petiotions are filed alleging that a person who was an adolescent offender is held in illegal detention. We also find uniformly that in all these cases, the issue regarding the application of Tamil Nadu Borstal Schools Act hereinafter called the Borstal Schools Act) had not been raised at the time of trial nor in appeal before this Court and in some cases, nor even before the Supreme Court, after the appeals against the conviction had been dismissed by this Court or the Supreme Court, one day with the dawn of wisdom, these petitions are filed claiming that the detenus are entitled to come out as per the Borstal Schools Act and also claiming that they have attained age of 23 and that C.Elumalai Vs. State of Tamil Nadu reported in (AIR 1985 SC 118) will squarely apply to them.

(2.) WE have heard Mr.Abudu Kumar Rajaratnam and Mr.Venkata Varadhan, the learned counsel appearing for the petitioners. Uniformly what is submitted by them is that, in W.P.No.4674 of 2007, this Court was pleased to apply the benefit to persons, who are at a pre-trial stage and therefore do not come under definition of "adolescent offender", as defined in the Borstal Schools Act. Therefore the petitioners deserve the same indulgence. According to them, the Memorandum No.44924/P.W.1./07 dated 22.10.2007, which had been issued by the Additional Director General of Prisons, Chennai, on legal advice, has been invoked in favour of many prisoners but the petitioners herein have not derived the benefit.

(3.) THE learned Public Prosecutor also posed the query that too with a great degree of justification as to what would happen if after a decade of incarceration, prisoners who are over 30 years of age come forward with this plea and say that at the time of conviction, they were entitled to the benefit of Borstal Schools Act.