PETER GILL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS petition for habeas corpus has been filed by Peter Gill who was convicted under section 302, Indian Penal Code, while he was a child. The offence was committed on 21st April, 1976 and the petitioner on that date was 14/1-2 years old. The Sessions Judge, convicting him for the offence, referred the case of the petitioner to the State Government under section 34 of the East Punjab Children Act, 1949 (hereinafter referred to as the Act). The State Government, vide order dated 19th May, 1980, directed that the petitioner be detained in Borstal Jail, Faridkot, separate from other prisoners and hardened criminals till he attains the age of 21 years. The petitioner on the attainment of 18 years of age filed Criminal Writ Petition No. 113 of 1981 in this Court challenging his detention after that date His prayer was rejected by J.M. Tandon, J., on 21-8-1981. Now, on the attainment of 21 years of age, he has again approached this Court praying that his period of detention having expired, he be set at liberty forthwith.

(2.) THE Joint Secretary to Government, Punjab, Department of Welfare, has filed a return on behalf of the State. The material facts, as, alleged by the petitioner, have not been denied. it is stated therein that the petitioner was ordered to be detained in the Borstal institute and Juvenile Jail upto, 21 years. But no orders of detention not exceeding the maximum period of imprisonment, to which the petitioner could have been sentenced for the offence committed, have been passed. Stress has been put on the fact that the conviction of the petitioner would have normally attracted on him imprisonment for life and as such be, having committed an offence of a serious nature, was not entitled to be released on the attainment of 21 years of age. In the additional affidavit filed today, the stand taken is slightly modified. It is maintained that youthful offenders, after the attainment of 21 years of age, as a matter of policy, are to be put in normal jail on passing suitable orders about their further detention. The Government maintains that the petitioner was sentenced to imprisonment for life for the offence he committed and thus his detention for a life term was perfectly justified. Reliance was placed on Annexures R1 and R-2 where under the Government has ordered that Peter Gill can no longer be detained in Borstal Jail. he having attained 21 years of age and suitable orders about his further detention are required, to be passed well in time; and further on 30-7-1982 Peter Gill was ordered to be sent to another jail in the State on 4-8-1982 and his case for premature release was advised to be sent if the convict had become eligible for premature release.

(3.) WHEN a youthful offender suffers a trial, the Court trying him passes an order of conviction. In the instant case, concededly, the order of conviction under section 302. Indian Penal Code, is there against the petitioner. Thereafter the East Panjab Children Act, 1949, makes inroads to the sentencing powers of the Court None of the choices given to the Court under the Indian Penal Code, i.e., of imposing death penalty or sentencing the offender for life imprisonment. can be adopted. Thus the case of the child is reported for orders to the State Government under section 34 (1) of the aforesaid Act. Now, it is for the Government to order as to where should the child be detained. The only, limit to the power being that the period of the detention as ordered by the Government cannot exceed the maximum period of imprisonment to which the child, could have been sentenced for the offence committed. Thus, in the instant case, Peter Gill could not have been detained for a period longer than life imprisonment. It is noticeable that the Court has no choice in the matter of imprisonment after recording conviction under section 302, Indian Penal Code, which has to be life imprisonment, but the detaining Govt under section 34 of the Act has a choice to order detention for a lesser period than life imprisonment. And that choice necessarily has to vary from case to case depending upon the facts and circumstances relating to the offender as also his antecedents and circumstances in which the offence came to be committed. These factors are merely illustrative and cannot be said to he exhaustive. But the point which I wish to emphasize here is that the State Government has to pass orders when the matter is reported to it for determining the period of detention. By no means can it be said that if the Government passes an interim detention order for the youthful offender to be detained in a particular institution uptill the attainment of 21 years of age, further order of detention in another institution cannot he passed. Such an order can certainly be passed but prior to the expiry of the interim order of desertion, in order to maintain continuity.