1. Rajam Animal was convicted by the Sub-Divisional Magistrate of Mayavaram of an offence punishable under Section 380, Indian Penal Code. She was a young woman of about 16 or 17 years of age at the time of her conviction. As she had had three previous convictions for which she had received three minor terms under the Children Act, the Magistrate realised that it would have been very desirable if Rajam could have been sent to a Borstal School; but he felt himself unable to pass an order to that effect because Borstal Schools are for boys only. He therefore sentenced her to nine months' rigorous imprisonment. In appeal, the learned Sessions Judge seemed to think that the fact that in practice Borstal Schools are only for boys should not be an impediment to the passing of an order by the Court that the girl should be committed to a Borstal School. He passed an order accordingly. When the Sessions Judge made the usual reference to the Government asking them to make arrangements for the custody of this girl in a Borstal School, the Government instructed the Public Prosecutor to file a Civil Revision Petition in this Court to have the order of the Sessions Judge revised on the ground that it was an illegal order.
2. Section 2 of the Borstal Schools Act says that the Provincial Government may, by notification from time to time, apply the whole or any of the provisions of this Act to adolescent offenders or any class thereof in any local area in the Presidency of Madras. . . . By Law (General) Department notification No. 64, dated the 26th January, 1927, published in page 210 of part I of the Fort St. George Gazette, dated the 1st February, 1927, the Act was made applicable to adolescent offenders of the male sex. That means that Rajam cannot be ordered to be sent to a Borstal School.
3. As adolescent girls cannot be sent to a Borstal School, some arrangement is presumably made in the women's jail at Vellore for segregating adolescent offenders from the hardened adult ones. In any event, that is a matter for the Government to arrange and the Court can only impose such sentences as it thinks proper and leave the Government to make such arrangements as are possible for the protection of adolescents.
4. The learned Sessions Judge further seemed to think that the three previous convictions of Rajam Ammal cannot be taken into account under Section 75,, Indian Penal Code, because he thought Section 39 of the Children Act prohibited that. The scope of Section 39 is however not so extensive. It says that the conviction of a child or young person shall not be regarded as a conviction for the purposes of any disqualification attaching to a conviction for any offence. Section 75, Indian Penal Code, does not impose any disqualification on persons with previous convictions. It only makes permissible a sentence which exceeds the normal sentence for an offence. However, this question does not directly arise here because an offence under S.. 380, Indian Penal Code, is punishable with seven years' rigorous imprisonment and the sentence imposed on Rajam is only nine months' rigorous imprisonment.
5. I cannot think of any better sentence than that which the Sub-Divisional Magistrate imposed. A very short term would be out of place. It would not act as a deterrent and would not afford any opportunity for her education or for any corrective treatment to be applied, such as is possible when a prisoner is sentenced to a longer term.
6. The sentence imposed by the Sessions Judge is therefore set aside and that imposed by the Sub-Divisional Magistrate restored.