BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:23/06/2009
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
and
THE HONOURABLE Ms.JUSTICE R.MALA
H.C.P.(MD)No.605 of 2008
A.Omana ... Petitioner
vs.
1.State represented by
The Home Secretary,
The Government of Tamil Nadu
Fort St. George,
Chennai - 600 009.
2.The Inspector General of Prisons,
Thalamuthu Natarajan Maligai,
Egmore, Chennai - 600 008.
3.The Superintendent of Prison,
Central Prison,
Palayamcottai
Thirunelveli District. ... Respondents
Petition under Article 226 of the Constitution of India praying for issuance of
a Writ of Habeas Corpus calling for the records relating to the conviction order
in SC No.9 of 2001 dated 06.11.2003 passed by the Sessions Court, Kanyakumari
District at Nagercoil and quash the same and direct the third respondent herein
to produce her son S.O.Sindhu now in illegal detention at Central Prison,
Palayamcottai, before this Court and set him at liberty.
!For Petitioner ... Mr.S.Manoharan
^For Respondents ... Mr.Daniel Manoharan,
Addl.Public Prosecutor.
:ORDER
(ORDER OF THE COURT WAS MADE BY R.MALA, J.)
The mother of the detenu filed this Habeas Corpus Petition stating that
his son, S.O.Sindhu has been impleaded in a criminal case for an offence under
Section 302 IPC in Crime No.471 of 2000 of Kaliyakkavilai Police Station,
Kanyakumari District and for the same he was convicted to life imprisonment on
06.11.2003. On that date, he aged about 18 years, one month seven days. But,
the learned Sessions Judge, Kanyakumari, has passed an order to life conviction
and the detenu was sent to Central Jail, but as per Section 8 of the Tamil Nadu
Borstal School Act 1925 (5 of 1926), an adolescent offender should have been
sent to Borstal School instead of Central Jail. But, that has not been
considered by the Sessions Court. Now, she came to know about this full Court
Judgment in H.C.P.No.596 of 2007 dated 06.02.2008 and her son is adolescent at
the time of conviction. Hence, her son is entitled the benefit of Section 8 of
the above said Act and he has now completed 23 years, hence, she prays for call
for the records and to quash the same and set the detenu, namely, Sindhu, at
liberty.
2. The detenu, the petitioner's son is an accused S.c.No.9 of 2001 on
the file of the learned Sessions Judge, Kanyakumari District. The learned
Sessions Judge has passed an order on 06.11.2003 found him guilty under Section
302 I.P.C and awarded life imprisonment and also imposed a fine of Rs.25,000/-.
Against the same, the detenu had preferred an appeal in Crl.A.No.307 of 2004
before this Court and the same has been dismissed on 12.02.2008. During the
pendencies of the Sessions Case and Criminal Appeal before this Court, the
detenu has raised the plea that he was an adolescent offender at the time of
conviction and he has not disputed the age.
3. At this juncture, the learned Additional Public Prosecutor relied upon
the decision reported in (2008) 1 Supreme Court Cases (Cri) 634 (Sudesh Kumar
Vs. State of Uttarakhan). The relevant portion is as follows:
"20. That apart, the question of applicability of the Act has been
raised for the first time while filing the special leave petition. The accused
has not claimed benefit under Section 6 of the Act during the trial before the
Additional District and Sessions Judge or before the High Court. Only material
which was placed before the Sessions Judge or the High Court is the statement
recorded of the appellant-accused under Section 313 Cr.PC., wherein the age of
the accused was given as 20 years. In the similar circumstances, in Yaduraj
Singh v. State of U.P, (1976) 4 SCC 310, this Court held as under: (SCC p.311,
para 2)
"2. The learned counsel appearing for the appellants argues that on August 30,
1969 when the incident took place, Appellants 3 and 4 were less than 21 years of
age and, therefore, they ought to have been given the benefit of the Probation
of Offenders Act. This contention was neither taken in the Sessions Court nor in
the High Court. True, that this Court has taken the view that in appropriate
cases such a contention may be entertained by this Court for the first time. But
the difficulty in accepting the submission of the learned counsel is that there
is no credible evidence on the record showing that Appellants 3 and 4 were less
than 21 years of age when the offence was committed. Counsel says that those two
accused had given their ages in their statements under Section 342 of the Code
of Criminal Procedure, and if the trial Judge doubted the correctness thereof,
he could have had the two accused medically examined in order to ascertain their
age. This seems to us a difficult burden for any trial Judge to undertake. The
age given by the two accused in their statements had no special significance in
the absence of a proper plea under the Probation of Offenders Act."
The learned Additional Public Prosecutor relied upon the another AIR 2007
SUPREME COURT 1129 (Murari Thakur and another V. State of Bihar). The relevant
portion is as follows:
"Learned counsel for the appellant firstly submitted that the appellants
are entitled to the benefit of the Juvenile Justice (Care and Protection of
Children) Act 2000 as amended by the amendment of 2006. We are of the opinion
that this point cannot be raised at this stage because neither was it taken
before the Trial Court nor before the High Court. Even otherwise we do not find
any merit in the said contention. The question of age of the accused appellants
is a question of fact on which evidence, cross examination, etc. is required
and, therefore, it cannot be allowed to be taken up at this late stage. Hence,
we reject this submission of the learned counsel for the appellant."
Since, the detenu herein has not raised the plea of age before the learned
Sessions Judge, we cannot entertain such a plea now.
4. The learned appellant counsel would rely upon the Full Bench decision
reported in 2008(2) CTC 625 (A.Thangammal Vs. State rep. by the Home Secretary,
The Government of Tamil Nadu, Fort St. George, Chennai - 600 009 and two others)
and urged that as per Sections 2(1), 8, of Tamil Nadu Borstal Schools Act, 1925,
the detenu is an adolescent offender at the time of conviction. His date of
birth is 23.09.1985. The learned Sessions Judge, Kanyakumari has pronounced
the judgment on 06.11.2003 and at that time, he was at 18 years, 1 month and 7
days. So, as per the above citation, the detenu is entitled to benefit under
Section 8 of the Borstal School Act. As per the birth certificate, the detenu's
date of birth is 23.09.1985. The date of commission of offence is 25.05.2000,
at the age of 14 years 8 months and 4 days. The date of conviction is
06.11.2003, when he was at 18 years, 1 month and 7 days. The judgment in
Crl.A.No.307 of 2004 has been passed on 12.02.2007. So, at the time of
pronouncing the judgment in S.C.No.9 of 2001, the detenu was below the age of 21
years.
5. As per the above decision, Section 8 of the Tamil Nadu Borstal School
Act, 1925 gives the discretion to decide whether the adolescent offender should
be sentenced to imprisonment or be sent for detention to a Borstal School. So
long as this discretion is exercised properly a sentence of imprisonment
pronounced by a Court cannot per se be termed as illegal as in the case of a
juvenile. Section 10 and 10(a) came into operation after the sentence is passed
and the offender has been imprisoned accordingly.
6. Here, the learned Sessions Judge has came to the conclusion that the
accused/detenu is guilty under Section 302 I.P.C and convicting him to undergo
life imprisonment and he has not sent to Borstal School and the same is not
illegal. In such circumstances, the petitioner/detenu is entitled to invoke
only Section 10(a) of Tamil Nadu Borstal School Act, 1925. As per the above
section, only the Government alone having the power to transfer the offenders
sentenced to transportation to Borstal Schools.
7. The learned Additional Public Prosecutor has placed the judgment in
H.C.P.No.150 of 2008 dated 08.07.2008. In that, the Division Bench has held
that Habeas Corpus Petitions filed by persons claiming to be an adolescent
offenders and seeking to quash the detention as alleged, are not maintainable,
since, the Court has the discretion to decide whether a person should be
sentenced to imprisonment or detention under the Tamil Nadu Borstal Schools Act.
Hence, we are of the considered opinion that the detention is not illegal.
8. More over, the learned counsel for the petitioner would rely upon the
decision rendered in H.C.P.No.596 of 2007. Considering the order passed in
H.C.P.No.596 of 2007 by the Full Bench of this Court, the Hon'ble Judges have
given a finding that the judgment in Ramasamy V. State, 2000(1) L.W.(Crl.) 142,
insofar as it holds that Section 8 of the Borstal Schools Act cannot apply to
adolescent offenders who have been sentenced to imprisonment for life is not
correct. But, however, when the habeas corpus has been placed before the
Division Bench, the Division Bench came to the conclusion that the Court has the
discretion to decide whether the accused should be sent to Borstal School or
should be sentenced to imprisonment for life and therefore, Habeas Corpus
Petition claiming that per se, such detention is illegal, is not maintainable.
We are not inclined to take any contrary view. In View of the above position,
this Habeas Corpus Petition is dismissed. If the petitioner is entitled to move
an application under Section 10 A of the Borstal School Act, 1925, the dismissal
of this Habeas Corpus Petition will not stand in her way. So, the decision
relied upon by the petition is not helpful.
9. As discussed above Section 8 of the Borstal Schools Act clearly shows
that it is a discretion of the Court to send the accused either to Borstal
Schools or to sentence him to imprisonment for life. So, merely because the
learned Sessions Judge has convicted the accused and sentenced him to undergo
life imprisonment, the same is not illegal. Hence, we are of the opinion that
there is no merit in this petition and the same is liable to be dismissed.
10. In view of the above position, this Habeas Corpus Petition is
dismissed. If the petitioner is entitled to move an application under Section
10 A of the Borstal Schools Act, 1925, the dismissal of this Habeas Corpus
Petition will not stand in her way.
arul
To
1.The Home Secretary,
The Government of Tamil Nadu
Fort St. George,
Chennai - 600 009.
2.The Inspector General of Prisons,
Thalamuthu Natarajan Maligai,
Egmore, Chennai - 600 008.
3.The Superintendent of Prison,
Central Prison,
Palayamcottai
Thirunelveli District.
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