Gadde Koteswara Rao v. The State (S. J. O. Kanchikacherla)
1972-08-04
A.D.V.REDDY, MUKTADAR
body1972
DigiLaw.ai
A.D.V. Reddy, J.-In Sessions Case No. 25 of 1968 on the file of the Sessions Judge, Krishna at Machilipatnam, A-6 was convicted for the offences under sections 147, 148 read with 149, 330 read with 149 and 304 part II read with 149, Indian Penal Code, for the part played by him in the burning of a Harijan boy at Kanchikacherla on 24th February, 1968, after pouring kerosene on him and setting fire to him in order to extort a confession regarding some thefts, and in lieu of the sentence of imprisonment, as he was less than 16 years then, the Sessions Judge holding that as A-6 conies under the definition of ‘young person’ defined in section 3(2) of the Madras Children Act IV of 1930, directed under section 23(2) of the said Act that he should be sent to a Senior certified school for a period of two years. In Crl.A. No. 946 of 1968 filed by the State, all the above convictions as against A-6 were set aside and he along with A-3 and A-5 was instead convicted for the offence under section 302 read with 31, Indian Penal Code and as A-6 has now beer found guilty of he offence under section 302 read with section 34, Indian Penal Code, the period of detention was enhanced from two years to five years. 2. In working out the direction of the Court regarding the detention of A-6 the Sessions Judge directed that as A-6 has not completed 16 years of age, he should be detained in the Senior Certified School for a period of two years, thereafter in the Borstal School for a period of three years and after discharge from the Borstal, he should be sent to the Central Jail to serve the rest of the period of life imprisonment. 3. On a reference made to this Court by the Public Prosecutor, it was clarified by a Bench of this Court starting that the period of detention of five years ordered in appeal was in lieu of the sentence of imprisonment for life and the 6th accused is not to be sent to jail to serve any further period after his period of detention in the Borstal School is over. After that order, a memo.
After that order, a memo. has been filed on behalf of A-6 contending that A-6 cannot be sent to the Borstal School after he had completed the period of two years in the Senior Certified School, as the provisions of the Borstal School Act bestows, jurisdiction on the Court only when the offender at the time of the conviction was not less than 16 years and not more than 21 years of age that neither the provisions under section 8 nor section 10-A of the Borsta School Act are attracted and that therefore the clarification to the effect that A-6 should be detained in the Borstal School for the rest of the period of five years is without jurisdiction and void; that sections 3(3), 22, 23 and 24 of the Madras Childrens Act make it amply clear that he must automatically be released on his attaining the age of 18 years and as the 6th accused has attained 18 years of age, he should now be released; that the court cannot treat the provisions of the Children Act and the Borstal Schools Act as supplementing each other and that the period of five years of detention fixed in the judgment of the Court should terminate on the accused attaining 18 years. 4. The above contentions are not correct. The Probation of Offenders Act, the Childrens Act and the Borstal Schools Act, are meant to control future behaviour of offenders, than punish their previous or past conduct, with the hope of reclaiming them to the Society, than making them confirmed criminal by sending them to jails as they will be associated with fellows of all types. Of these enactments, the Childrens Act and the Borstal Schools Act provide for sending to institutions the delinquent children and adolescent offenders with a view to reforming them. The two enactments are meant for different age groups. Section 24 of the Childrens Act only prescribes that he shall not be detained beyond the age of his attaining 18 years and within that period he shall rot be sent to that school for less than two years. In the Borstal Schools Act also similar provision is found in section 8 of the Act, where also the period of detention should not be less than two years and shall not go beyond the time of his attaining the age of 23 years.
In the Borstal Schools Act also similar provision is found in section 8 of the Act, where also the period of detention should not be less than two years and shall not go beyond the time of his attaining the age of 23 years. The period of two years is fixed, so that the strict discipline and constructive training of the offender, result in the productivity of a meaningful nature instead of short durations which may not have any effect. While under Childrens Act the offenders who are between 12 to 16 years of age can be committed to the Certified Schools, under the Borstal Schools Act, he should be between 16 and 21 years of age. The total detention period in each of these institutions is five years. The provisions of these two Acts are meant to regulate the period of detention under each Act, in the two different institutions. They do not in any way fetter the discretion of the Court in fixing the period of detention. It is nowhere stated in either of the enactments that after the period of detention in each of these institutions, he should be released. What is stated under section 24 of the Childrens Act is that he cannot be detained in that institution beyond the age of 18 years. This does not place an embargo on his being sent to the Borstal School thereafter to serve the rest of the period of detention. It cannot be said that when the Court has the power to fix any period of detention in lieu of sentence, the period so fixed cannot be worked out by sending the offender to two different institutions, viz., Senior Certified School and the Borstal School, so long as the provisions of these enactments are not in any way..........infringed. In this case, as the period of five years has been fixed by the Court for the detention of A-6 in lieu of the sentence of imprisonment for life, it is within the powers of the Court to regulate and distribute his period of detention in the two institutions keeping in view the provisions of the two Acts. It is always open to the Court to pass such orders as are necessary in the interests of justice, acting under section 561-A, Criminal Procedure Code 10 give effect to a valid order of detention passed by the Court.
It is always open to the Court to pass such orders as are necessary in the interests of justice, acting under section 561-A, Criminal Procedure Code 10 give effect to a valid order of detention passed by the Court. Otherwise the contention of the learned Counsel for the accused will lead to anomalous situations as no offender just below 16 years of age can be ordered to be detained beyond the age of eighteen, however serious the offence may be, even though there is provision for detention even upto the age of 23 years under the Borstal Schools Act. 5. We see, therefore, no reason to modify the direction already given with regard to the detention of 6th accused. A.B.K. ----- Order not modified.