Skip to content


P. China Sangaiah Vs. the Superintendent, Central Prison, Chenchalguda, Hyderabad and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 3937 of 1982
Judge
Reported in1982CriLJ2030
ActsIndian Penal Code (IPC), 1860 - Sections 302 and ;Code of Criminal Procedure (CrPC) , 1873 - Sections 432 and 433A
AppellantP. China Sangaiah
RespondentThe Superintendent, Central Prison, Chenchalguda, Hyderabad and anr.
Appellant AdvocateK.G. Kannabiran, Adv.
Respondent AdvocateThe Public Prosecutor
Excerpt:
.....432 and 433a of criminal procedure code, 1973 - whether detention of an adolescent offender in borstal school is 'sentence' within meaning of clause (a) of paragraph 2 of government order (go) - section 5 of a.p. borstal school act says borstal school is treated as prison and inmates considered as prisoners - appellant is an adolescent offender sentenced to punishment and sent to borstal school - held, appellant's detention in borstal school is also sentence for a term. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that..........our consideration in this writ petition is whether the detention of an adolescent offender in a borstal school is a sentence within the meaning of clause (a) of paragraph 2 of g. o. ms. no. 557 home (prison-c) department dated 30th october, 1980, issued by the government of andhra pradesh. 2. the facts are not in dispute, sri v. gopal reddy, an adolescent offender along with three others were convicted under section 302 i.p.c. and sentenced to imprisonment for life by the principal sessions judge, hyderabad, in sessions case no. 59/1974 on 30th december, 1974. his appeal was dismissed by the high court of andhra pradesh on 12th march, 1976. from 30th december, 1974 till 26th august, 1976, he was lodged in central prison, chenchalguda, hyderabad. he was transferred to the borstal.....
Judgment:

Gangadhara Rao, J.

1. The question for our consideration in this writ petition is whether the detention of an adolescent offender in a Borstal School is a sentence within the meaning of Clause (a) of Paragraph 2 of G. O. Ms. No. 557 Home (Prison-C) Department dated 30th October, 1980, issued by the Government of Andhra Pradesh.

2. The facts are not in dispute, Sri V. Gopal Reddy, an adolescent offender along with three others were convicted under section 302 I.P.C. and sentenced to imprisonment for life by the Principal Sessions Judge, Hyderabad, in Sessions Case No. 59/1974 on 30th December, 1974. His appeal was dismissed by the High Court of Andhra Pradesh on 12th March, 1976. From 30th December, 1974 till 26th August, 1976, he was lodged in Central Prison, Chenchalguda, Hyderabad. He was transferred to the Borstal School, Visakhapatnam, as per the Government order dated 25th August, 1976 since he was an adolescent offender within the meaning of the Andhra Pradesh Borstal Schools Act, 1925. Again, he was shifted to Borstal School, Nizamabad on 17th April, 1977.

On 17th May, 1982, he was transferred to Central Prison, Hyderabad. The Visiting Committed at its meeting held on 23rd August, 1979 at Borstal School, Nizamabad reviewed his case and recommended for his discharge on licence. The Inspector General of Prisons also recommended his released on licence to the Government of Andhra Pradesh on 24th October, 1979. It is surprising that the Government did not take any decision so far, though nearly a period of two years and 8 months has elapsed. Thus, Gopal Reddy has been undergoing life imprisonment since 30th December, 1974.

3. In order to commemorate the 25th Anniversary of the formation of the State of Andhra Pradesh on 1st November, 1980, the Government of Andhra Pradesh decided to grant remission to certain categories of prisoners who have been convicted for offences in the State. Therefore, in exercise of the powers conferred by Section 432 Cr.P.C. 1973, the Government of Andhra Pradesh issued G.O. Ms. No. 557 Home (Prison-C) Department dated 30th October 1980 remitting and reducing the sentences of certain categories of prisoners in the State who had been convicted by Criminal Courts in the state. We are concerned with Clause (a) of Paragraph 2 of that Order, which reads as follows :-

'(a) Except the prisoners sentenced for life who are governed by Section 433-A Cr.P.C., all other convicts who have undergone total sentence of five years as on 31-10-1980 shall be released'.

4. Sri Gopal Reddy was convicted and sentenced to life imprisonment prior to 17th December, 1978. In view of the decision of the Supreme Court in Maru Ram v. Union of India : 1980CriLJ1440 . is not applicable to him. The G.O. was subject matter of Criminal Appeal No. 247/1981 before the Supreme Court of India. While reversing the judgment of our High Court and interpreting Clause (a) of the said G.O., the Supreme Court observed :-

'Under Clause (a) all convicts who have undergone a total sentence of five years as on October 31, 1980 except prisoners sentenced for life and who are governed by Section 433-A have to be released. This means that life convicts who are governed by Section 433-A Cr.P.C. are not to be released, even if they have undergone a total sentence of five years as on October 31, 1980. All others are to be released. Therefore life convicts who are not governed by S. 433-A Cr.P.C. and who have undergone a total sentence of five years are entitled to be released'.

5. In view of this decision of the Supreme Court, Sri V. Gopal Reddy is entitled to be released, if he has undergone a total sentence of five years by 31st October, 1980, according to Clause (a) of paragraph 2 of G.O. Ms. No. 557 Home (Prison-C) Department dated 30th October, 1980.

6. Sri K. G. Kannabiran, the learned counsel for the petitioner submitted that the detention spent by Sri V. Gopal Reddy in the Borstal School is also a sentence for a term and if it is taken into consideration, he has undergone a total sentence of five years as on 31st October, 1980 and, therefore, he should be released in view of Clause (a) of Paragraph 2 of the order of the Government. It was submitted by the learned Public Prosecutor that the period spent by Sri Gopal Reddy in the Borstal School cannot be considered to be a sentence of imprisonment. He also submitted that the remission system applicable to the prisoners of jail is not applicable to the inmates of Borstal Schools. The learned counsel for the petitioner submitted that he is not asking for remission enumerated in Clauses (b) and (c) of the Order. Therefore, the only question we have to consider is whether the period of detention of Gopal Reddy bin the Borstal School is a sentence within the meaning of Clause (a) of paragraph 2 of G.O. Ms. No. 557 dated 30th October, 1980.

7. In our opinion a reading of the provisions of the A.P. Borstal Schools Act, 1925, shows that detention in a Borstal School is also a sentence for a term.

8. Section 2(1) of the A.P. Borstal Schools Act, 1925 (hereinafter referred to as the Act) defines 'Adolescent Offender' as meaning any person who has been convicted of any offence punishable with imprisonment, and who at the time of such conviction is not less then 16 nor more than 21 years of age. S. 5 says that subject to any alterations, adaptations and exceptions made by the Act and the rules framed under it, the Prisons Act 1894, and the Prisoners Act, 1900 and the rules framed thereunder shall apply in the case of Borstal School established under the act as if it was a prison and the inmates prisoners. It means that the Borstal School is treated as a prison and the inmates as prisoners. S. 8 says that Criminal Court can in lieu of passing a sentence of imprisonment, can pass a sentence of detention in a borstal School for a term which shall not be less then two years and shall not exceed five years but in no case extending beyond the date on which the adolescent offender will, in the opinion of the Court, attain the age of twenty-three years. Thus, detention in a Borstal School is also a sentence for a term S. 10 provides that the Inspector General may, if satisfied that any adolescent offender undergoing imprisonment in consequence of a sentence passed either before or after the passing of the Act might with advantage be detained in a Borstal School, direct that such person shall be transferred from prison to a Borstal School, there to serve the whole or any part of the unexpired residue of his sentence. The provisions of the Act shall thereupon apply to such person as if he had been originally sentenced to detention in a Borstal School.

9. Similarly, S. 10-A empowers the State Government to transfer an adolescent offender sentenced to transportation to a Borstal School, to serve the whole or any part of the unexpired residue of his sentence, and the provisions of the Act shall apply to such offender as if he had been originally sentenced to detention in Borstal School. Once again these two Sections also emphasize the fact that detention in Borstal School is also a sentence.

10. Section 11 says that before passing a sentence under S. 8, the Court shall inquire into the age of the offender. Similarly under S. 12, if accommodation in a Borstal School is not immediately available, an adolescent offender can be detained in a prison until he is sent to a Borstal School and the period of detention so undergone shall be treated as detention in Borstal School. S. 13-A provides that the State Government may direct that any specified Borstal School in the State shall be available for the receipt of adolescent offenders in respect of whom a sentence of detention in a Borstal School had been passed by a Court. The state Government may also consent to the transfer to a Borstal School in the State of a person detained in any Borstal School or other school of a like nature in any other part of India. The provisions of the Act will apply to such a person as if he had been originally sentenced to detention in a Borstal School in the State. Under S. 14, if a person detained in a Borstal School is reported to be incorrigible or exercising a bad influence on the other inmates of the School, the State Government can commute the unexpired residue of the term of detention to such term of imprisonment of either description as the State Government may determine, but in no case exceeding - (a) such unexpired residue, or (b) the maximum period of imprisonment fixed for the offence or of the failure to give security as the case may be, or (c) the maximum period of imprisonment which the Court that tried him had authority to award under the Criminal P.C. 1898, whichever is shortest.

11. These provisions go to show that an adolescent offender is also sentenced to punishment for an offence, and his detention in a Borstal School is also a sentence for a term. He is not placed in a regular prison. He is put in a Borstal School. Instead of undergoing sentence of imprisonment in a prison, he undergoes sentence of detention in a Borstal School. Further, Clause (a) of Paragraph 2 of G.O. Ms. No. 557 merely says, 'who have undergone a total sentence of five years as on 31st October, 1980 shall be released'. It does not say that it should be a total sentence of five years of imprisonment spent in a prison. It means that it can be a total sentence of five years spent in a Borstal School also. Consequently, we hold that Shri V. Gopal Reddy has completed a total sentence of five years as on 31st October, 1980 and, therefore, he should be released in view of Clause (a) of Paragraph 2 of G.O. Ms. No. 557 dated 30th October, 1980. We direct the respondents to release Sri V. Gopal Reddy immediately from the prison.

12. Thus, the writ petition is allowed, but in the circumstances of the case without costs. Advocate's fee Rs. 250/-.

13. Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //