Skip to content


Vijay Kumar and ors. Vs. Delhi Administration and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 139 of 1985
Judge
Reported in1985(9)DRJ261; 1985RLR556
ActsConstitution of India - Article 228
AppellantVijay Kumar and ors.
RespondentDelhi Administration and ors.
Advocates: B.R. Sharma and; S.T. Singh, Advs
Cases ReferredDr. N.S. Jain v. Delhi Administration
Excerpt:
.....and were convicted for the same--were transferred to borstal jail at faridkot and after some years transferred to tihar jail--if their detention is illegal and they were entitled to be set at liberty (no).--if they are entitled to the benefits of borstal act.; since no specific order was shown to have been passed to transfer and keep the petitioners at borstal jail at faridkot by magistrate as required under the act and they were transferred under the provisions of punjab jail manual para 842, they are not entitled to any benefit under borstal act. - - (8) section 5 to 8 are important and they read as follows :5.(1) when any male person less than twenty-one years of age is convicted of an offence by a court of sessions, a magistrate specially empowered under section 30 of the..........the legality and virus of their continued imprisonment in tihar jail after their transfer from the borstal jail at faridkot. (2) we shall here briefly notice the facts of the case of each petitioners. 1.vijay kumar vijay kumar was tried for an offence under section 302 read with section 34 of the indian penal code and he was sentenced to life imprisonment on 26th november, 1976. vijay kumar at the time of the commission of the offence was 18 years old. vijay kumar was transferred to the borstal jail at faridkot on 11th march, 1977 and be was transferred back to tihar jail delhi on 31st january, 1980. 2. dalip singh chand : dalip singh was convicted for offences under sections 302, 307 of the indian penal code and section 27 of the arms act and he was sentenced to imprisonment for life on.....
Judgment:

R.N. Aggarwal, J.

(1) By this petition under Article 226 of the Constitution of India, Vijay Kumar and 8 others (life convicts) have challenged the legality and virus of their continued imprisonment in Tihar Jail after their transfer from the Borstal Jail at Faridkot.

(2) We shall here briefly notice the facts of the case of each petitioners.

1.Vijay Kumar Vijay kumar was tried for an offence Under Section 302 read With Section 34 of the Indian Penal Code and he was sentenced to life imprisonment on 26th November, 1976. Vijay Kumar at the time of the commission of the offence was 18 years old. Vijay Kumar was transferred to the Borstal Jail at Faridkot on 11th March, 1977 and be was transferred back to Tihar Jail Delhi on 31st January, 1980. 2. Dalip Singh Chand : Dalip Singh was convicted for offences under Sections 302, 307 of the Indian Penal Code and Section 27 of the Arms Act and he was sentenced to imprisonment for life on the first charge, rigorous imprisonment for 4 years on the second charge, and rigorous imprisonment for one year on the last charge. The sentences were ordered to run concurrently. Dalip Singh at the relevant time is stated to be 17 years old. He was transferred to Borstal Jail at Faridkot on 8th March, 1979 and from there was transferred to Central Jail Bhatinda on 29th March, 19S4 and thereafter to Central Jail Tihar on 18th August, 1984. 3. Ram Kumar : Ram Kumar. aged 19, was convicted for offences under Section 302 read with Section 34 and Section 376 of the Indian Penal Code and sentenced to life imprisonment on the first charge and to rigorous imprisonment for 7 years on the second charge. The sentences were ordered to run concurrently. Ram Kumar was transferred to Borstal Jail at Faridkot on 19th August, 1982 and from there to the Borstal Jail at Ludhiana on 25th November, 1984 and he was transferred back to the Tihar Jail at Delhi on 23rd March, 1985. 4. Karamvir Singh : Karamvir Singh aged 19 was tried along with Ram Kumar, mentioned at Seriall No. 3, and he was also convicted on the charges under Sections 302 and 376 of the Indian Penal Code and sentenced to the same terms of imprisonment as Ram Kumar. Karamvir Singh was transferred to the Borstal Jail at Faridkot on 19th August, 1982 and he was transferred back to Tihar Jail on 13th July, 1983. We may mention here that both Ram Kumar and Karamvir Singh have filed appeal against their convictions and sentences and their appeal (Criminal Appeal No. 129 of 1982) is pending in the High Court. 5. Chhote alias Jamil Ahmed : Chhote alias Jamil Ahmed was convicted of the offence under Section 302 of the Indian Penal Code and sentenced to life imprisonment on 25th February 1980. He was transferred to the Borstal Jail at Faridkot on 23rd June 1980 and from their to Central Jail Bhatinda on 29th March, 1984 and he was transferred back to the Tihar Jail on 18th August, 1984. The age of Chhote is not given in the particulars supplied to the Court (Annexure 5). 6. Raju: Raju, aged 17, was convicted of the offence under Section 302 of the Indian Penal Code and sentenced to life imprisonment on 31st March, 1982. He was transferred to Borstal Jail at Faridkot on 17th May, 1982 and from there he was transferred to Borstal Institution, Ludhiana, on 27th November, 1984 and he was further transferred back to Central Jail Tihar in May 1985. 263 7. Narinder Bahadur Singh : Narinder Bahadur Singh, aged 20 years, was convicted of the offence under Section 302 of the Indian Penal Code and sentenced to life imprisonment on 5th November, 1981. He was transferred to the Borstal Jail at Faridkot on 17th May, 1982 and from there he was transferred to the Borstal Jail at Ludhiana on 27th November, 1984 and from Ludhiana he was transferred back to Tihar Jail on 23rd March, 1985, 8. 0m Parkash; 0m Parkash, aged 18, was convicted for the offence under Section 302 of the Indian Penal Code and sentenced to life imprisonment on 27th September, 1977. 0m Parkash was transferred to the Borstal institution on 9th March, 1979 and he was transferred back to Tihar Jail on 24th February 1982. 9. Jai Parkash : Jai Parkash, aged 17, was convicted for the offence under Section 302 of the Indian Penal Code and sentenced to life imprisonment on 1st July) 1977, Jai Parkash was transferred to the Borstal Jail on 9th March, 1979 and he was transferred back to Tihar Jail on 7th August, 1981.

(3) The contention of the petitioners is that under the orders of the Delhi Administration under Section 3 of the Transfer of Prisoners Act, 1950 they were transferred to Punjab and Haryana and that the Delhi Administration by exercising the powers of the District Magistrate under Section 6 or Section 8 of the Punjab Borstal Act as applicable to the Union Territory of Delhi, had detained the petitioners in the Borstal institutions and that on their attaining the age of more than 23 years they were transferred from the Borstal Jail to the Central Jail Tihar at Delhi and that their transfer to the Central Jail at Tihar after their detention in the Borstal institutions is illegal and without jurisdiction.

(4) We may here notice the relevant provisions of the Punjab Borstal Act, 1926, as extended to the Union Territory of Delhi, vide Government of India, Home Department, notification No. 189/38, dated 30th May, 1939. Section 2 is the definition's section. Sub-section (1) of Section 2 defines 'Borstal Institution' and it reads as under :

'(1)'Borstal Institution'' means a place in which offenders may be detained under this Act and given such industrial training and other instruction and subjected to such disciplinary and moral influences as will conduce to their reformation.'

(5) SUB-SECTION (2) defines the expression 'detained' and it reads as under:

(2)'detained' means detained in, and 'detention' means detention in a Borstal Institution.'

(6) SUB-SECTION (4) defines the term 'offence' and it reads as follows :

(4)'offence' means - (i) an offence punishable with transportation or rigorous imprisonment under the Indian Penal Code other than : (a) an offence punishable with death; (b) an offence punishable under Chapter V-A or Chapter Vi of the said Code; (ii) an offence punishable with imprisonment under the Public Gambling Act, 1867; (iii) an offence punishable with imprisonment under the Opium Act, 1878; (iv) an offence punishable with imprisonment under the Punjab Excise Act, 1914.'

(7) Section 5 lays down the powers of courts to pass a sentence of detention in Borstal institution in the case of a convict under 21 years of age in lieu of transportation or rigorous imprisonment. Section 6 gives special powers to the District Magistrates for detaining convicts in the Borstal institutions. Section 7 gives power to the Chief Commissioner for detention of prisoners confined in the Lahore Borstal Jail. Section 8 gives powers to Superintendent of jail to present prisoner less than 21 years of age before the District Magistrate for detention in a Borstal Institution.

(8) Section 5 to 8 are important and they read as follows :

5.(1) When any male person less than twenty-one years of age is convicted of an offence by a court of sessions, a Magistrate specially empowered under Section 30 of the Code of Criminal Procedure, 1898, or a Magistrate of the first class, or is ordered to give security for good behavior and fails to give such security, and when by reason of his criminal habits or tendencies or associations with persons of had character it is expedient, in the opinion of the judge or Magistrate, that he should be detained, such Judge or Magistrate may, in lieu of passing a sentence of transportation or rigorous imprisonment, pass an order of detention for a term which shall not be less than two years and shall not exceed seven years when the order is passed by a court of sessions or a Magistrate specially empowered under Section 30 of the Code of Criminal Procedure 1898, and shall not be less than two years nor exceed three years. When the order is passed by a Magistrate of the first class not so empowered. (2) When any Magistrate, nor empowered to pass such order, is of opinion that an offender convicted by him is a person in respect of whom such orders should be passed in accordance with the provisions of Sub-section (1) he may, without passing any sentence, record such opinion and submits his proceedings and forward the accused to the District Magistrate to whom he is subordinate. (3) The District Magistrate to whom the proceedings are so submitted may make such further enquiry (if any) as he may deem fit and pass such order for the detention of the offender or such other sentence or order, as he might have passed if the trial had been held by him from its commencement. (6) When any male person less than twenty-one years of age has been sentenced for an offence by a Magistrate to rigorous imprisonment, or when ordered by a Magistrate to give security for good behavior has failed to give such security, and has been committed to or confined in prison and no appeal has been preferred against such sentence or order within the time prescribed by law and when by reason of such person's criminal habits or tendencies or association with persons of had character it is expedient, in the opinion of the District Magistrate, that he should be detained, the District Magistrate may order that such person shall, in lieu of undergoing imprisonment, be detained for a period not less than two years not more than three years. (7) If it appears to the Chief Commissioner that any male person less than twenty-one years of age who having been sentenced to rigorous imprisonment for an offence or having been committed to or confined in prison for failing to give security for good behavior is at the time of the commencement of this Act confined in the Lahore Borstal Jail, should for the reasons described in Sub-section (1) of Section 5 be detained, the Chief Commissioner may direct that he be detained for a period not exceeding the residue of his sentence or of the period for which security was required, as the case may be, provided that such order shall be subject as regards the period of detention to any order passed on appeal against or revision of the sentence or order of commitment or confinement in prison. (8) Whenever it appears to the Superintendent of a jail that any male person less than twenty-one years of age sentenced to transportation or rigorous imprisonment for an offence or committed to or confined in prison for failing to give security for good behavior should for the reasons described in Sub-section (1) of Section 5 be detained, he shall cause such prisoner to be produced before the District Magistrate in whose jurisdiction the jail is situated, and if the District Magistrate after making such enquiry as he may deem proper or as may be prescribed is satisfied that the prisoner should for the reasons described in the said sub-section be detained, he may order the prisoner to be removed from jail and detained for a period equal to the unexpired term of the transportation or imprisonment to which he was sentenced, or of the period for which security was required from him, as the case may be.' Section 9 provides that no order shall be made under the provisions of Section 8 until the time allowed by law for the prisoner to appeal has expired or if an appeal has been preferred until such appeal has been finally decided; or (ii) if an application made on appeal or otherwise to have the sentence altered into an order of detention has been rejected by an appellate court or the High Court; or (iii) in the case of any person who has been sent to a Reformatory School in accordance with the provisions of the Reformatory School Act, 1897.

(9) Section 11 provides that no person who has been previously detained for the whole period prescribed in an order of detention or who has been transferred to jail under this Act, shall again be ordered to be detained.

(10) The petitioners have not produced the orders under which they were transferred to the Borstal Jail at Faridkot or to any other Borstal Institution.

(11) The respondents in para 5 of their reply have stated that the convicts who were juveniles were transferred to Borstal Institutions under para 842 of the Punjab Jail Manual which reads as under :

'842.(1) Every juvenile male convict shall be transferred immediately on his conviction to the Lahore Borstal Institution. (2) In all cases not provided for in Clause (1) juvenile male convicts, who arc Indians may ordinarily be detained in the jail to which they may, in the first instance, be committed, provided that if such jail does not possess suitable or adequate accommodation, for the purpose, such convicts may be transferred immediately to the Lahore Borstal Institution.'

(12) We have heard Mr. B.R.Sharma, advocate at length and have also carefully perused the petition and the relevant provisions of the Punjab Borstal Act. 1926. We have not been shown any order in respect of any of the petitioners passed by any of the authority competent under the Borstal Act to detain a convict in a Borstal Institution.

(13) The definition of the term 'offence' given in Sub-Clause (4) of Section 2 shows that an offence punishable with death does not come within the purview of the Punjab Borstal Act and an offender charged with an offence punishable with death cannot be dealt with under the provisions of the Punjab Borstal Act. Mr. Sharroa, learned counsel for the petitioners, drew our attention to a decision of the Supreme Court reported as Kunwar Bahadur and others v. State of Uttar Pradesh, : 1980CriLJ831 and contended that in the United Provinces Borstal Act, 1938, the definition of the term 'offence' is the same as in Punjab Borstal Act, and that in the said case one of the accused Nand Kishore was referred by the jailor to the Sewa Sadan under Section 7 of the United Provinces Borstal Act and since Nand Kishore had been detained in the Sewa Sadan for more than 5 years, the Supreme Court held that the question of Nand Kishore surrendering to serve the remaining sentence does not arise. According to Mr. Sharma it is clear from the above authority that offences punishable with death also come within the purview of the Borstal Act. We find no discussion in the judgment on this aspect of the case. To us, it seems, the definition of the term 'offence' given in the United Provinces Borstal Act was not brought to the notice of the Hon'ble Judges. Section 7 of the United Provinces Borstal Act gives power to a Superintendent of Jail to present prisoners less than 21 years of age before a District Magistrate for detention in a Borstal Institution, it seems, in the case Kunwar Bahadur and others (supra) the power under Section 7 was exercised and one of the accused therein Nand Kishore was detained in the Borstal Institution for a period of 5 years. Section 8 of the Punjab Borstal Act is in para materia with Section 7 of the United Provinces Borstal Act, but in the case in hand there is nothing on the record to show that at any time any order was passed under Section 8 for the detention of the petitioners in the Borstal Jail thereforee, the cited case is clearly distinguishable on facts. Also, we may say, with all respect, that the Supreme Court has not noticed Section 8 of the United Provinces Borstal Act which provides that no order shall be made under the provisions of Section 7 until the time allowed by law for appeal against the sentence or order under which the prisoner is committed to or confined in prison has expired or, if an appeal has been preferred, until such appeal has been finally decided. Section 9 of the Punjab Borstal Act is exactly in para materia with Section 8 of the United Provinces Borstal Act. We have earlier, while giving facts of the case of each petitioner, slated that at least 3 of them, that is. Ram Kumar, Karamvir and Raju have filed appeals against their conviction and sentence and they are pending. For this reason also, no order under Section 8 could have been made.

(14) Section 5 gives powers to courts to pass a sentence of detention in Borstal Institution in the case of a convict under 21 years of age in lieu of the transportation or rigorous imprisonment. In none of the cases in hand, the power under Section 5 was exercised by the court. Section 6 gives special powers to a District Magistrate for the detention of a convict in the Borstal Institution in lieu of undergoing imprisonment. The detention in such a case has to be for a period not less than 2 years nor more than 3 years. There is no order on the record passed under Section 6 in respect of any of the petitioners.

(15) Mr. Sharma brought to our notice the decision of the Supreme Court in the case State of Andhra Pradesh v. Vallabhapuram Ravi, : 1984CriLJ1511 . The facts of the cited case are that the respondent therein Vallabhapuram Ravi was convicted of an offence punishable under Section 302 of the Indian Penal Code and was sentenced to imprisonment for life on 29th April 1980. On 12th September 1980 the State Government of Andhra Pradesh passed an order under Section 10-A of the Andhra Pradesh Borstal Schools Act for the detention of the respondent in a Borstal School and directed that he should be detained in a Borstal school to serve the unexpired portion of the sentence till he attained the age of 23 years. Accordingly, the respondent was transferred to the Borstal School at Visakhapatnam on 14th October 1980. On attaining the age of 23 years, the respondent sent a letter to the High Court of Andhra Pradesh requesting it to issue a writ of habeas corpus to the State Government to release him. The High Court treated the letter as a writ petition and after hearing the State Government passed an order directing the State Government to release the respondent. Against the said order the State Government went in appeal to the Supreme Court.

(16) One of the questions raised before the Supreme Court was regarding the applicability of Section 433A of the Code of Criminal Procedure. Their Lordships after discussing the various provisions of the Andhra Pradesh Borstal Schools Act held as under :

'SECTION 433A of the Code does not operate in respect of persons dealt with under Section 10-A of Andhra Act 6 of 1926 and thereforee a person who had been sentenced to imprisonment for life on being convicted of an offence for which death is also prescribed as a punishment and who being a person not below 16 or above 21 years of age had later on been directed by the State Government, under Section 10-A of the Act to be detained in a Borstal School is entitled to be released on his completing 23 years of age without any regard to the provision in Section 433A of the Code which insists that a person who is sentenced to imprisonment for life on being convicted of such an offence should actually undergo imprisonment for a minimum period of fourteen years.'

(17) We have carefully gone through the cited authority and, in our view, it is distinguishable on facts. Section 10-A of the Andhra Pradesh Borstal Schools Act gives power to the State Government to transfer offenders sentenced to transportation to Borstal Schools. The State Government of Andhra Pradesh had in exercise of its powers under Section 10A transferred the respondent Vallabhapuram Ravi for being detained in the Borstal School. The cited decision is clearly distinguishable and is not applicable to the case in hand.

(18) Shri Sharma contended that it was the Jail Superintendent who had transferred the petitioners to the Borstal Schools and this should be treated as a power exercised under Section 8 of the Punjab Borstal Act. We do not agree in this contention. Section 8 only gives power to Superintendent of Jail to present prisoners less than 21 years of age before a District Magistrate for detention in a Borstal Institution. The Superintendent of Jail has under the Borstal Act no power to convert a sentence of transportation or imprisonment into a sentence of detention in a Borstal Institution.

(19) The respondents in their reply have stated that the petitioners who were juvenile convicts were transferred to the Borstal Institution under para 842 of the Punjab Jail Manual. It seems, the power under para 842 of the Punjab Jail Manual was exercised in the interest of the petitioners who were then adolescent offenders. It may be, as stated in the petition, that the petitioners were transferred to the Borstal School at Faridkot in exercise of the powers under Section 3 of the Transfer of Prisoners Act, 1950.

(20) We may notice here that Ram Kumar and Karamvir Singh had by a petition (Criminal Misc. No. 157 of 1983) challenged the legality and validity of their transfer to the Borstal Jail at Faridkot. Notice of that petition was given to the Stale and the Deputy Superintendent of Central Jail, New Delhi in his reply dated 16th May 1983 had stated that the convicts Ram Kumar and Karamvir Singh were transferred to the Borstal Jail, Faridkot, as they were juveniles and the Borstal School has been created to lodge juvenile offenders with an aim to provide certain environmental conditions, like education and playing facilities, to shape the character of such offenders. The said petition was disposed of by one of us (R.N. Aggarwal, J.) and Mr. Justice G.R. Luthra with the following observations :

'The petitioners who were of very young ages at the time of the commission of the offence have been found guilty of rape and murder. Karamvir was medically examined soon after the occurrence and he was found to be suffering from gonorrhea which shows that the said petitioner had fallen in had ways and was having relations with women of ill-repute. The Tihar Jail has no arrangements similar to Faridkot Jail for young offenders. We are of the view that if the petitioners are transferred back to Tihar Jail they are likely to mix with hardened criminals which may have further adverse effect on their character and future growth. We find that the transfer of the petitioners to the Faridkot Borstal Jail is in the interest of the petitioners. This may cause a little hardship to the relations of the petitioners in visiting the petitioners at Faridkot but this inconvenience has to be overlooked in the larger interest of the petitioners. For the reasons stated we find that there are important reasons for the transfer of the petitioners from Tihar Jail to the Jail at Faridkot.'

(21) For the reasons given above, we hold that the detention of the petitioners in the Borstal Jail at Faridkot was not under the Punjab Borstal Act and, thereforee, the petitioners cannot seek any relief under the Punjab Borstal Act. All the petitioners are sentenced to life imprisonment and they are undergoing their imprisonment in the Central Jail at Tihar. We see no illegality in their continued detention in prison at the Central Jail, Tihar.

(22) The petitioners at Seriall Nos. 1, 2, 3 and 9 have pleaded that they have completed 10 years rigorous imprisonment including the remissions earned by them and they are eligible to be considered for premature release under para 516-B(6) of the Punjab Jail Manual. They have in support of this contention relied on the decision of this court in the case of Dr. N.S. Jain v. Delhi Administration, decided on 22nd July 1985. We direct that the cases of Vijay Kumar, Jai Parkash, Dalip Singh and 0m Parkash shall be considered for premature release by the Sentence Revising Board in accordance with Law.

(23) Shri R.T.L. D'Souza, Vice President, Free Legal Aid Cell, Central Jail Tihar, was present in the court and he informed us that there is a separate ward for juvenile offenders and there are also arrangements for education. We hope that the government would set up a Borstal School in the Union Territory of Delhi for imparting education and training in various industries to juvenile offenders so that juvenile offenders are completely segregated from the hardened criminals and, in course of time, they become good and useful citizens.

(24) The petition is dismissed.


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