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Sibbu Munnilal Vs. State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Appeal No. 627 of 1966
Judge
Reported inAIR1968MP97; 1968CriLJ631
ActsReformatory Schools Act, 1897 - Sections 4 and 8; Indian Penal Code (IPC), 1908 - Sections 53A
AppellantSibbu Munnilal
RespondentState of Madhya Pradesh
Appellant AdvocateA. Usmani, Adv.
Respondent AdvocateA.P. Sen, Adv. General
Cases ReferredCentral Provinces and Berar v. Mekhoo Hirde
Excerpt:
- - 280] it would thus be seen that in the orissa case there is no discussion of the matter, and the reasoning which was advanced by the learned judge was that if one of the sentences prescribed under the particular section was transportation and if the accused was in fact awarded that sentence, the provisions of the reformatory schools act applied to his case notwithstanding the fact that the offence could as well be punished with death. the law thus prescribes for that offence a maximum as well as a minimum punishment. the fact, therefore, that a sentence of 'imprisonment for life' can be awarded for an offence under section 302 of the penal code cannot warrant its being called an offence 'punishable with imprisonment' if it were the intention of the act to include within the ambit.....bhave, j.1. the following question has been referred to us for our decision:'whether the expression 'transportation' in section 4(a) of the reformatory schools act meant 'transportation for life' and, therefore, now means 'imprisonment for life'?'the question has been referred because, according to the learned single judge (shiv dayal j.), there is a conflict between the two decisions, namely, rama v. emperor, (1908) 4 nag lr 180 and daljit singh v. emperor, air 1937 nag 274 on the one hand, and gangaram v. state of m.p., air 1965 madh pra 122.2. the appellant in this case has been convicted of an offence under section 376 of the indian penal code and has been sentenced to rigorous imprisonment for two years. the punishment prescribed under section 376 of the indian penal code is.....
Judgment:

Bhave, J.

1. The following question has been referred to us for our decision:

'Whether the expression 'transportation' in Section 4(a) of the Reformatory Schools Act meant 'transportation for life' and, therefore, now means 'imprisonment for life'?'

The question has been referred because, according to the learned Single Judge (Shiv Dayal J.), there is a conflict between the two decisions, namely, Rama v. Emperor, (1908) 4 Nag LR 180 and Daljit Singh v. Emperor, AIR 1937 Nag 274 on the one hand, and Gangaram v. State of M.P., AIR 1965 Madh Pra 122.

2. The appellant in this case has been convicted of an offence under Section 376 of the Indian Penal Code and has been sentenced to rigorous imprisonment for two years. The punishment prescribed under Section 376 of the Indian Penal Code is imprisonment for life or imprisonment of either description for a term which may extend to ten years and also fine. The appellant is aged 18 years. One of the questions which came before the learned Single Judge while deciding the appeal was whether in such a case the provisions of the Reformatory Schools Act, 1897 could be applied. That depends on the interpretation of Section 4(a) of the Reformatory Schools Act which contains the definition of a 'youthful offender'. The definition of a 'youthful offender', with the local amendment, reads thus:

'4. Definitions.

In this Act, unless there is anything repugnant in the subject or context.-- (a) 'Youthful offender' means any boy who has been convicted of any offence punishable with transportation or imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898, and who at the time of such conviction or sentence, was under the age of sixteen years.' In this definition, there is reference to punishment of 'transportation' or 'imprisonment' and no reference to 'imprisonment for life'. Hence, the question has been posed for our decision.

3. Section 53 of the Indian Penal Code, before its amendment in 1949, prescribed the following penalties:--

'First, -- Death;

Secondly, -- Transportation;

Thirdly, -- Penal Servitude;

Fourthly, -- Imprisonment, which is of two descriptions, namely:--

(1) Rigorous, that is, with hard labour;

(2) Simple;

Fifthly, -- Forfeiture of property;

Sixthly, -- Fine.'

After its amendment in 1949 and 1955, the section reads thus:

'First, -- Death

Secondly, -- Imprisonment for life;

Thirdly, -- (Repealed by Act No. 17 of 1949):

Fourthly, -- Imprisonment, which is of two descriptions, namely:

(1) Rigorous, that is, with hard labour;

(2) Simple;

Fifthly, -- Forfeiture of property;

Sixthly, -- Fine'.

These amendments were necessitated because for a long time persons sentenced to transportation were not sent out of India and they were confined in the Indian prisons and the sentence of transportation for life was treated as if it was a sentence of imprisonment for life. This matter came up before their Lordships of the Privy Council in Kishori Lal v. King Emperor, 72 Ind App 1 = (AIR 1945 PC 64) wherein their Lordships observed thus:

'In England transportation beyond the seas ceased as a punishment in 1854. In India it is still part of the penal system, but Acts passed since the Penal Code have effected so radical a change in the law relating thereto that, whatever may have been the case in 1860, Section 58 can no longer be construed as providing only for the transitory detention of prisoners awaiting conveyance to a penal settlement outside India. A sentence of transportation no longer necessarily involves prisoners being sent overseas, or even beyond the province wherein they were convicted. . ..... So, in India, a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appointed for transportation prisoners, where he will be dealt with in the same manner as a prisoner sentenced to rigorous imprisonment.' [pp. 8-9 of Ind App. (at pp. 66-67 of AIR).]

From this decision it is clear that in the all those cases where a person was sentenced to transportation for life, it was treated as if it was a sentence of life imprisonment. This is the reason why in 1955, Section 53 of the Indian Penal Code was amended so as to delete the punishment of 'transportation' and to substitute it by the punishment of 'imprisonment for life'. There was reference to the punishment of transportation in other enactments also. Hence, in 1955 Section 53A was added which reads thus:

'53A. Construction of reference to transportation.

(1) Subject to the provisions of Sub-section (2) and Sub-section (3), any reference to 'transportation for life' in any other law for the time being in force or in any instrument or order having effect by virtue of any such law or any enactment repealed shall be construed as a reference to 'imprisonment for life.'

(2) In every case in which a sentence of transportation for a term has been passed before the commencement of the Code of Criminal Procedure (Amendment) Act, 1955, the offender shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the same term.

(3) Any reference to transportation for a term or to transportation for any shorter term (by whatever name called) in any other law for the time being in force shall be deemed to have been omitted.

(4) Any reference to 'transportation' in any other law for the time being in force shall,--

(a) as if the expression means transportation for life, be construed as a reference to imprisonment for life;

(b) if the expression means transportation for any shorter term, be deemed to have been omitted.'

The effect of this section is twofold: (1) that wherever there is any reference to 'transportation for life' in any other law for the time being in force, it should be construed as a reference to 'imprisonment for life'; and (2) wherever there is a reference to 'transportation for a shorter term', it should be deemed to have been omitted. Now, Section 4(a) of the Reformatory Schools Act refers to the punishment of 'transportation'. If the expression 'transportation' in taken to include 'transportation for life' or 'transportation for a shorter term', the effect of Section 53A of the Penal Code would be that in place of the word 'transportation' the words 'imprisonment for life' would have to be substituted. The definition of a 'youthful offender' reconstituted with reference to the said amendments would then read as under:-- ''Youthful offender' means any boy who has been convicted of any offence punishable with imprisonment for life or imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898, and who at the time of such conviction or sentence was under the age of sixteen years;'

If the definition is so read, no manner of doubt is left that a person convicted of an offence, which is punishable with a sentence of imprisonment for life can be dealt with under the provisions of the Reformatory Schools Act and the answer to the question posed must be given in the affirmative.

4. The learned Single Judge, however, feels that there is a conflict between the decisions of this Court, referred to above, and that Gangaram's case, AIR 1965 Madh Pra 122 leaves certain measure of doubt as to whether on the true interpretation of Sections 53 and 53A of the Indian Penal Code, the expression 'transportation' in the definition of 'youthful offender' in the Reformatory Schools Act should be altogether omitted or should be substituted by the words 'imprisonment for life'. At least, that is what we could gather from the order of reference.

5. It is no doubt true that there is a conflict between (1908) 4 Nag LR 180 and AIR 1937 Nag 274 on the one hand and AIR 1965 Madh Pra 122 on the other and that the decision in Gangaram's case, AIR 1965 Madh Pra 122 had not the effect of overruling the previous decisions. But the question of resolving that conflict does not really arise in the present case. In those cases the question at issue was as to whether a person convicted of an offence, the highest punishment for which was death, could be dealt with under the Reformatory Schools Act if the offender was awarded the lesser punishment, namely, that of imprisonment for life. In those cases no dispute was raised that in place of the expression 'transportation' the words 'transportation for life' or 'imprisonment for life' could not be substituted. Those cases proceeded on the assumption that the expression 'transportation' means 'transportation for life'. We, however, propose to decide as to what view is correct, as it is necessary that the two conflicting views should not be allowed to hold the field at the same time.

6. In Rama's ease, (1908) 4 Nag LR 180 the accused was found guilty of murder punishable under Section 302 I.P.C. where the punishment prescribed was death or transportation for life. The question which came up for decision before the learned Additional Judicial Commissioner was whether the words 'punishable with transportation or imprisonment' are to be read as inapplicable to offences also punishable with death. This is what the learned Additional Judicial Commissioner observed:

'The provision under discussion requires that the offence, for which the candidate for a Reformatory School is convicted, should be punishable with imprisonment or transportation, but it obviously does not require that such offence should not be subject to any other form of punishment. If that were so, then it would be impossible to find any offence for which a youthful offender could be sent to a Reformatory School. If the words 'punishable with imprisonment or transportation' are to be read as inapplicable to offences also punishable with death, then, consistency of construction would make them equally inapplicable to offences also punishable with fine, forfeiture, or whipping. Therefore, it seems to follow that all that is necessary to satisfy the requirements of the Reformatory Schools Act, 1897, as to an offender under the age of 15 years, is that he should be convicted of an offence which includes imprisonment or transportation among the forms of punishment provided for it by law ..... Murder is capable of punishment by transportation, and, in a case where in fact such punishment is decided upon, it seems to me that the convict, if of proper age and otherwise a fit person for attempted reform, is eligible as a pupil for a Reformatory School' [p. 182].

A similar view has been expressed by Jagannadhadas J. in Ulla Mahapatra v. The King, AIR 1950 Orissa 261 at p. 264:

'I agree also that this is a case in which in exercise of our powers under Section 8, Reformatory Schools Act, the appellant, instead of having to undergo the sentence of transportation, should be sent to a reformatory school for a period of five years. It is not disputed before us that the appellant is a 'youthful offender' as defined. He is none the less so, though Section 302, Penal Code, is also punishable with death. It is enough to satisfy the definition of 'youthful offender' in the Act if the offence of which he is convicted is also punishable with transportation.'

In Daljit Singh's case, AIR 1937 Nag 274 the accused was convicted of an offence punishable under Section 302 I.P.C. and was sentenced to transportation for life. In that case, the Division Bench observed:

'That such action is possible in the case of a youthful offender who has been sentenced to transportation for life has been held by Stanyon, A.J.C in (1908) 4 Nag LR 180, and this has been accepted later in Cri. Appl. No. 27 of 1926 (Nag). We are in respectful agreement with the decision in (1908) 4 Nag LR 180 and hold that recourse may be had to the Reformatory Schools Act if such action is desirable' [p. 280]

It would thus be seen that in the Orissa Case there is no discussion of the matter, and the reasoning which was advanced by the learned Judge was that if one of the sentences prescribed under the particular section was transportation and if the accused was in fact awarded that sentence, the provisions of the Reformatory Schools Act applied to his case notwithstanding the fact that the offence could as well be punished with death. In Daljit Singh's case, AIR 1937 Nag 274 the decision in Rama's case, (1908) 4 Nag LR 180 was simply accepted which means that the reasoning of the learned Additional Judicial Commissioner was approved by the Division Bench.

7. In Gangaram's case, AIR 1965 Madh Pra 122 the matter came up for hearing before a Division Bench consisting of Naik and Shiv Dayal JJ. The accused, who was a boy of 13 or 14 years of age, was convicted under Section 302 of the Indian Penal Code and was sentenced to imprisonment for life. In appeal both the learned Judges came to the unanimous conclusion that the accused was rightly convicted. Shiv Dayal J., however, was of the opinion that the accused came within the definition of a 'youthful offender' and that the provisions of the Reformatory Schools Act were applicable to him. This is what Shiv Dayal J. held:

'The offence under Section 302 of the Penal Code is punishable not only with transportation for life but also with death ..... is the offence, therefore, excluded from the purview of the above definition? (the definition of 'youthful offender'). To put it differently, is the above definition restricted to the offences which are punishable only with transportation or with imprisonment and is inapplicable to an offence which is also punishable with death?

The object of the enactment is obvious enough. Sending of youthful offenders to ordinary jails has the effect of making them hardened criminals. They were to be safeguarded against this evil irrespective of the term of imprisonment or transportation so that the definition is so widely worded as to bring within its scope every offence which is punishable with transportation or imprisonment irrespective of the term. The only offences to which the definition does not apply -- and there is no point in applying it to them -- are those for which the law does not provide for punishment with transportation or imprisonment at all. Section 53 of the Penal Code, as it was worded when the Reformatory Schools Act, 1897, was enacted, enumerated six kinds of punishments. Then this evil which was intended to be safeguarded against by the Act was present only in the punishment with transportation or imprisonment but not in others, e. g., death sentence or sentence of forfeiture of property or fine. To an offence for which death penalty alone is provided (see Section 303 of the Penal Code), or where only fine can be imposed, application of this Act is meaningless. On a natural and plain meaning of Section 4(a), the very fact that an offence is punishable with transportation or imprisonment is sufficient. If the intention of the legislature were to exclude those offences which are punishable with death also, the wording would have been 'any offence not punishable with death', Instead of 'any offence punishable with transportation or imprisonment'.

On this analysis, the only questions to be asked are:--

(1) Is the offence punishable with transportation? and

(2) Is the offence punishable with imprisonment?

If the answer to either of them is in the affirmative, then it is within Section 4(a) of the Act; if the answers to both of them are in the negative, then only the offence will be outside the definition. Therefore, in my judgment, it is enough to bring an offence under Section 8, read with Section 4(a) of the Reformatory Schools Act, 1897, that the offence is punishable with transportation or imprisonment and it is immaterial that it is also punishable with death or fine or any other kind of punishment. This view is supported in AIR 1950 Orissa 261 .....'

Naik J. took a contrary view. Naik J., after considering the effect of the amendment of Section 53 and the addition of Section 53(53A?) to the Indian Penal Code, reconstituted the definition of a 'youthful offender' thus:

'..... a 'youthful offender' means --'any boy who had been convicted of any offence punishable with imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898, and who, at the time of such conviction or sentence, was under the age of sixteen years.'

and on that basis proceeded to consider the question. The reasoning adopted by Naik J. is as under:

'The question, therefore, arises whether the accused-appellant is a 'youthful offender' within the meaning of the Act. This in turn raises the question whether an offence under Section 302 of the Indian Penal Code can be said to be 'any offence punishable with imprisonment' within the meaning of the aforesaid definition.

Section 53 of the Indian Penal Code tells us that there are five kinds of punishments to which offenders are liable under the provisions of the Code, -- first, Death: secondly, Imprisonment for life: thirdly, Imprisonment (rigorous or simple); fourthly, Forfeiture of property; and fifthly, Fine. It is also the scheme of the Code that generally maximum punishments are prescribed leaving the minimum to the discretion of the Judge who would have the means in each case of forming an opinion as to what sentence would meet the ends of justice in that particular case. However, in offences of the gravest nature, it has prescribed both the maximum and the minimum punishments. Keeping this scheme in view. I am of opinion that in any attempt at classification of offences with reference to punishments prescribed for them, it would be more in consonance with the aforesaid principle to understand the classification as implying that the offences have been classified with reference to the maximum punishments to which an offender may be liable in respect of them. Thus, when we speak of a capital offence, we imply that an offender committing it is liable to be sentenced to death, not that he must necessarily be sentenced to death, for in most cases imprisonment for life has been also prescribed as an alternative sentence to the sentence of death. In my opinion, the word 'punishable' when used in the phrase 'punishable with imprisonment' as categorising offences with reference to punishments, itself implies a liability to punishment which is the highest in the hirearchy of punishments for that class of offences.

The expression 'offences punishable with imprisonment' ordinarily has two meanings. It may mean offences in which imprisonment is one of the permissible punishments prescribed, or it may mean offences, the commission of which exposes the offender to imprisonment as its highest penalty, though, in fact, he may be sentenced to any prescribed sentence short of that. What meaning the expression bears in a particular context would depend on its use in that context; and, in my opinion, when used to categorise offences so that offenders committing them are to be differently sentenced, then it must bear the latter meaning.

On this view, broadly speaking, there can be offences punishable with death, i.e. offences for which the maximum penalty to which an offender can be subjected is death; offences punishable with imprisonment for life, i.e., offences for which the maximum penalty can be imprisonment for life: offences punishable with imprisonment, i.e. offences for which the maximum penalty can be imprisonment short of imprisonment for life; and, lastly, offences punishable with fine, i.e., offences for which the maximum penalty can be a sentence of fine only. It would thus be seen that 'imprisonment for life' is a form of punishment distinct from imprisonment simpliciter and both are distinct and different from the sentence of death and, in my opinion 'offences punish-able with imprisonment' cannot be equated with 'offences punishable with imprisonment for life,' which must be treated as offences of a separate category. For, whereas the former, viz., 'imprisonment' can be of two categories -- simple and rigorous --, the latter, viz., 'imprisonment for life' can only be rigorous: and, again whereas 'imprisonment' can be for any period from twentyfour hours to fourteen years in accordance with the period prescribed in the Penal Code, the sentence of 'imprisonment for life' can mean but one thing, namely, rigorous imprisonment for twenty years.

An offence under Section 302 of the Penal Code is punishable with death, or imprisonment for life and also with fine. The law thus prescribes for that offence a maximum as well as a minimum punishment. The minimum punishment prescribed is, no doubt, imprisonment for life, but, as explained above, it cannot be said that it is a form of punishment which is included in the expression 'imprisonment' as used in Section 53 of the Code or Section 4(a) of the Act. In any case, it cannot be said that murder is an offence which is 'punishable with imprisonment'. To so describe it would be a misdescription of that offence.

Some help in the interpretation of the clause can also be derived from the phraseology in Section 4(a) of the Act. It makes a distinction between an offender who has been convicted of any 'offence punishable with imprisonment' and an offender who has been 'sentenced to imprisonment'; and I think that this distinction is not without substance. 'Liability to punishment for an offence' is something different from the actual sentence awarded therefore. While, the first implies the limit to which a sentence can go, the second implies that which the justice of the case warrants or requires under the facts and circumstances of any particular case. The fact, therefore, that a sentence of 'imprisonment for life' can be awarded for an offence under Section 302 of the Penal Code cannot warrant its being called an offence 'punishable with imprisonment' If it were the intention of the Act to include within the ambit of the expression 'punishable with imprisonment' all offenders against whom a sentence of imprisonment had been passed irrespective of the nature and gravity of the offence of which they had been convicted, it could well have more simply defined the expression 'youthful offender' under Section 4(a) by saying as 'any boy who has been convicted of any offence and sentenced to imprisonment therefore &c;'. If the mere fact of having been sentenced to a term of imprisonment for any offence were the criterion to attract the provisions of the Act, it would not have been necessary to co-relate the conviction with an offence 'punishable with imprisonment'. On the other hand, the fact that the Legislature has attempted to co-relate convictions with the offences and not with the sentence of imprisonment and at the same time classifying the offences with reference to punishment, shows that the mere fact that an offender was sentenced to a term of imprisonment was not enough as it was further necessary that the offence was of a class which was 'punishable with imprisonment'. So that, if the offence was punishable with something more than imprisonment, viz., with death or imprisonment for life, then it was not meant to be included amongst the offences to which reference was made in Section 4(a) of the Act,' (Pp. 124-125).

On difference of opinion between the two learned Judges, the matter was referred to the third Judge for his opinion on the question. Pandey J. agreed with Naik J. He held:

'I am of the view that murder cannot be called an offence punishable with imprisonment only because the lesser penalty for that offence is imprisonment for life. As provided by Section 53 of the Indian Penal Code, the punishment of imprisonment for life is in a category different from the one providing for the punishment of imprisonment, rigorous or simple. Secondly, it is usual to describe an offence with reference to the maximum punishment provided therefor. An example is Section 497 Criminal Procedure Code. Under that Section, bail cannot be granted if there are reasonable grounds for believing that the accused has been guilty 'of any offence punishable with death or imprisonment for life.' This expression has been interpreted disjunctively as including offences like those under Section 307 of the Indian Penal Code, the maximum sentence for which is imprisonment for life: Emperor v. Nga San Htwa ILR 5 Rang 276: (AIR 1927 Rang 205) (FB). Naranji Premji v. Emperor, AIR 1928 Bom 244 and Emperor v. Mst. Janki 28 Nag ILR 260 : (AIR 1932 Nag 130). Finally I do not consider it right to interpret Clause (a) of Section 4 of the Act as if it did not take into account the gravity of the offence and merely provided for substituting in all cases the sentence of imprisonment by a term in the Reformatory School. If it were so, that could have been more easily provided as follows:

'Youthful offender' means any boy who has been convicted of any offence and sentenced to imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898, and who, at the time of such conviction or sentence, was under the age of sixteen years.' In my opinion, the offence of murder, which is punishable with death or imprisonment for life, is not included in the offences referred to in Clause (a) of Section 4 of the Act. (pp. 125-126).

8. From the extracts of the decision in Rama's case (1908) 4 Nag LR 180 quoted above, it is clear that the learned Additional Judicial Commissioner proceeded on the view that if an accused convicted of an offence punishable under Section 302 of the Indian Penal Code is excluded from the definition of a 'Youthful offender' in Section 4(a) of the Reformatory Schools Act on the ground that the punishment prescribed under that Section is not only transportation but death as well, then in that case offenders convicted of offences, wherein the punishment of transportation or imprisonment is prescribed but in addition or alternatively the punishments of forfeiture, fine etc., are prescribed, shall also be excluded and the Reformatory Schools Act will become inapplicable to majority of the cases. It was, therefore, held that the enquiry should be directed to see as to whether the punishments of transportation or imprisonment are prescribed for that particular offence or not. The fact that any other punishment is also prescribed is wholly irrelevant.

Naik J., on the contrary, adopted the reasoning that when one speaks of an offence punishable with a particular sentence, one always speaks of the highest punishment that is prescribed for that particular offence and, therefore, it is immaterial in deciding this question to consider whether any other punishment is prescribed for that offence or not. Naik J. also emphasises the fact that in determining the scope of Section 4(a) of the Reformatory Schools Act the enquiry is not to be directed to find out what punishment is actually inflicted but the enquiry is to be directed to find out as to what punishment is prescribed under that particular section. If the punishment prescribed is death, then certainly the person, even though he is sentenced to transporation, cannot be included in the definition of a 'youthful offender'. We find it difficult to accept the reasoning of the learned Additional Judicial Commissioner in Rama's Case (1908) 4 Nag LR 180.

9. The expression used in Section 4(a) of the Reformatory Schools Act is 'punishable' and not 'punishable also'. In our opinion, it would be inappropriate to describe an offence as punishable with fine when the higher sentence prescribed is imprisonment for life or any shorter period. We, therefore, respectfully adopt the reasoning given by Naik J. in Gangaram's Case AIR 1965 Madh Pra 122 and hold that in all those cases, where an accused is convicted of an offence punishable with a sentence higher than the sentence of transporation which means imprisonment for life or imprisonment, the accused is not included within the definition of a 'youthful offender'.

10. In passing, we may observe that there is one more case of the Nagpur High Court reported in Provincial Government, Central Provinces and Berar v. Mekhoo Hirde ILR 1942 Nag 305 : (AIR 1942 Nag 74), wherein it was held by Niyogi J. (as he then was) that the expression 'youthful offender' could not include the case of a boy under the age of 16 years at the time of conviction and sentence who had been convicted of any offence punishable with death. In that case, the Court was called upon to consider the definition of 'youthful offender' as given in Section 3 of the C.P.C and Berar Children Act, 1928. The purpose of Section 3 is to amend the definition of 'youthful offender' occurring in Section 4(a) of the Reformatory Schools Act. In that case, unfortunately, no reference was made to Rama's case (1908) 4 Nag LR 180 or to that of Daljit Singh's Case, AIR 1937 Nag 274 and the point was decided on the first impression. There in also no discussion on the point.

11. In Daljit Singh's Case, AIR 1937 Nag 274 the Division Bench of the Nagpur High Court accepted the decision in Rama's Case, (1908) 4 Nag LR 180 without any discussion. In the Orissa Case, Jagannadhadas J. concluded the matter by observing:

'It is enough to satisfy the definition of 'youthful offender' in the Act if the offence of which he is convicted is also punishable with transportation.'

We respectfully differ from both the judgments.

12. In Gangaram's Case, AIR 1965 Madh Pra 122, Naik J. reconstituted the definition of a 'youthful offender' in the light of the amended provisions of Section 53 and 53A of the Penal Code thus:

''youthful offender' means--'any boy who has been convicted of any offence punishable with imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898, and who, at the time of such conviction or sentence, was under the age of sixteen years''.

It appears that through inadvertence Naik J. omitted to substitute for the word 'transportation' the words 'imprisonment for life'. We have already given our reasons why in the reconstituted definition the expression 'transporation' should be substituted by the expression 'imprisonment for life'. On this interpretation of ours, no further difficulty should arise in applying the provision of the Reformatory Schools Act in the case of persons who are convicted of offences, the highest punishment for which is imprisonment for life.

13. For the aforesaid reasons, we agree with the view expressed by Naik J. in Gangaram's Case. AIR 1965 Madh Pra 122 and hold that the decisions in (1908) 4 Nag LR 180 and AIR 1937 Nag 274 do not lay down the correct law. We also hold that in the definition of 'youthful offender' in Section 4(a) of the Reformatory Schools Act for the expression 'transportation' the expression 'imprisonment for life' should be substituted.

14. We answer the reference accordingly.


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