Judgment :- Prabha Sridevan, J. After the judgment in W.P.No.4674 of 2006 (P.Shanmuganathan Vs. The Secretary to Government, Home Department, Fort. St. George, Chennai and another) and the Full Bench judgment in 2008(1) MLJ Crl.832 (A.Thangammal Vs. State Rep. by Home Secretary, Government of Tamil Nadu), several Habeas Corpus Petiotions are filed alleging that a person who was an adolescent offender is held in illegal detention. We also find uniformly that in all these cases, the issue regarding the application of Tamil Nadu Borstal Schools Act hereinafter called the Borstal Schools Act) had not been raised at the time of trial nor in appeal before this Court and in some cases, nor even before the Supreme Court, after the appeals against the conviction had been dismissed by this Court or the Supreme Court, one day with the dawn of wisdom, these petitions are filed claiming that the detenus are entitled to come out as per the Borstal Schools Act and also claiming that they have attained age of 23 and that C.Elumalai Vs. State of Tamil Nadu reported in ( AIR 1985 SC 118 ) will squarely apply to them. 2. We have heard Mr.Abudu Kumar Rajaratnam and Mr.Venkata Varadhan, the learned counsel appearing for the petitioners. Uniformly what is submitted by them is that, in W.P.No.4674 of 2007, this Court was pleased to apply the benefit to persons, who are at a pre-trial stage and therefore do not come under definition of "adolescent offender", as defined in the Borstal Schools Act. Therefore the petitioners deserve the same indulgence. According to them, the Memorandum No.44924/P.W.1./07 dated 22.10.2007, which had been issued by the Additional Director General of Prisons, Chennai, on legal advice, has been invoked in favour of many prisoners but the petitioners herein have not derived the benefit. 3. The Learned counsel for the petitioners submitted that in C. Elumalai Vs. State of Tamil Nadu, the Honble Supreme Court categorically stated that the State Government cannot keep any adolescent offender who is convicted of a capital offence but sentenced to imprisonment for life beyond the age of 23 years. The learned counsel also referred to the judgment in C.A.No.558 of 2007, where following 2000(II) CTC 123 (Ramasamy Vs State), the Court set at liberty the second appellant, who was treated as an adolescent offender. 4. The learned counsel also referred to the judgment in C.A.No.558 of 2007, where following 2000(II) CTC 123 (Ramasamy Vs State), the Court set at liberty the second appellant, who was treated as an adolescent offender. 4. In response the learned Public Prosecutor submitted that these habeas corpus petitions are not maintainable. Section 8 of the Tamil Nadu Borstal Schools Act, is not mandatory, but discretionary. The Court has the discretion to decide whether the adolescent offender should be sent to prison or in lieu of that they can be sent to Borstal School. When a person is kept in detention pursuant to a sentence by a Court which has jurisdiction, it is not illegal detention. The sentence may be set aside by the Higher Courts. But it is not illegal. A habeas corpus petition is not maintainable. The learned Public Prosecutor further submitted that not having raised this point all the way up to Supreme Court, they cannot be permitted to do so now. 5. The learned Public Prosecutor also posed the query that too with a great degree of justification as to what would happen if after a decade of incarceration, prisoners who are over 30 years of age come forward with this plea and say that at the time of conviction, they were entitled to the benefit of Borstal Schools Act. 6. The learned Public Prosecutor submitted that there could be a flood of requests by numerous persons claiming the same benefit. The learned Public Prosecutor also submitted that the State Government is seriously considering amendments to the Borstal Schools Act. 7. The definition of an "adolescent offender" is very clear and it reads as follows: "Adolescent offender" means any person who has been convicted of any offence punishable with imprisonment or who having been ordered to give secutiry under Section 118 of the Code of Criminal :Procedure has failed to do so and who at the time of such conviction or failure to give security is (not less than 16 in the case of a boy and not less than 18 in the case of a girl, but not more than 21 years of age in either case). 8. Therefore the benefit of the Borstal Schools Act can be given only to a person who has been convicted of any offence punishable with imprisonment. 8. Therefore the benefit of the Borstal Schools Act can be given only to a person who has been convicted of any offence punishable with imprisonment. Therefore the date of conviction is the only crucial date with regard to the determination of whether a person is an "adolescent offender" and is entitled to the benefit of the Borstal Schools Act. A person who has not yet been convicted, cannot claim the benefit of the provisions of the Borstal Schools Act. 9. We are repeating this, since there appears to be some misapprehension in the minds of persons regarding the scope of this Act. For a person claiming the protection of Juvenile Justice Act, 2000, the date on which the offence is committed is relevant. But the Borstal Schools Act gives its protection only on the basis of the date of conviction. In W.P.No.4674 of 2007, this Court held that at the pre-trial stage a detenu who has not reached 21 years should be sent to Borstal Schools and not kept inside with hardened criminals. There the Court did not give any direction to set them free. But some difficulties may crop in. A pre-trial prisoner who is not a juvenile, but is not more than 21 years is not an "adolescent offender". He will be an "adolescent offender" only if he is not more than 21 years even on the date of conviction. The Borstal School directs release of adolescent offenders from Borstal Schools after they reach 23 years of age. If on the date of conviction the pre-trial Borstal School detenus are past 21 years, will they go to jail thereafter? And once they reach 23 years if the trial is not concluded will they then go to jail? These problems will arise because the right as an "adolescent offender" comes into existence only when the person is convicted. Date of conviction is the crucial date. We repeat that date of conviction is the crucial date. We must remember the definition as per the Act. 10. It is no doubt true that the judgment in W.P.No.4624 of 2007 has been cited before us. But since the learned Public Prosecutor has submitted that an amendment to the Act is on the anvil. We do not want to say anything more. 11. We must remember the definition as per the Act. 10. It is no doubt true that the judgment in W.P.No.4624 of 2007 has been cited before us. But since the learned Public Prosecutor has submitted that an amendment to the Act is on the anvil. We do not want to say anything more. 11. As regards the application of C.Elumalais case, the Supreme Court made it clear that "the State Government of Tamil Nadu cannot keep any one adolescent offender, who is convicted of capital offence but sentenced to imprisonment of life in respect of whom an order is made under Section 10 (A) of the Tamil Nadu Borstal Schools Act, after he has attained 23 years".(emphasis supplied). Therefore if the benefit is to be given as per C.Ezhumalais case or the judgment in 1990 L.W Crl. 228(P.Mohan Vs. State) then an order should have been made by the State under Section 10(A) of the Tamil Nadu Borstal Schools Act. No one else can claim the benefit given in C.Ezhumalais case. This is also very clear. But if persons have been already set at liberty contrary to what Supreme Court said in C.Elumalais case, we cannot do anything about that. However with regard to the persons, who are now before us, they will be entitled to the benefit of C.Ezhumalais case only if in respect of them already an order has been made under Section 10(A) of the Tamil Nadu Borstal Schools Act. We find that no such order under Section 10(A) of the Act has been made in favour of the petitioners who are before us. So, none of them can take the benefit of C.Ezhumalais case. 12. In view of the confusion that prevails with regard to the application of the Borstal Schools Act, we repeat the following: 1. An adolescent offender as per the Borstal Schools Act can claim the protection of the Act only after the date of conviction and not on the basis of the date of offence. Therefore if in any case a person has been granted the protection of the Borstal Schools Act on the ground that on the date of offence, he had not completed 21 years, it is contrary to the definition of Borstal Schools Act and the law laid down by the Supreme Court. 2. Therefore if in any case a person has been granted the protection of the Borstal Schools Act on the ground that on the date of offence, he had not completed 21 years, it is contrary to the definition of Borstal Schools Act and the law laid down by the Supreme Court. 2. C. Elumalais case applies only to adolescent offenders in whose respect an order under Section 10(A) has been passed and to no one else. 3. The Court has the discretion to send an adolescent offender either to jail or to Borstal Schools. Therefore merely because a person had not complied 21 years on the date of conviction, ipso-facto the order of imprisonment does not become illegal. Especially if the order of conviction and sentence has attained finality either by a judgment of this Court or by the Supreme Court, such a person is not automatically entitled to be set free. 4. No Habeas Corpus Petitions alleging illegal detention can be filed merely on the ground that the person sentenced to imprisonment claims that he will be entitled to the benefits of Borstal Schools Act, since under the Act, the Court may send adolescent offender to prison. It is merely a question of discretion whether they should go to Borstal Schools instead. Therefore the detention or sentence of imprisonment to an adolescent offender is perse not illegal. Therefore we hold a habeas corpus petition is not maintainable. 5. Therefore the date of birth has to be proved and thereafter the conduct of the person as to whether he would benefit by detention in Borstal Schools instead of imprisonment has to be ascertained by the procedure laid down under Section 8 of the Borstal Schools Act. Therefore even if his date of birth is satisfactorily proved by acceptable evidence, the petitioner cannot be automatically set free. He must pass the test laid down in Section 8 of the Borstal Schools Act. 6. If a person has been convicted and for some reason either by exercise of discretion or because the age of the person was not brought to the notice of the Trial Judge, and the Trial Judge has sentenced the adolescent offender to improsonment for life or imprisonment for a shorter term, the remedy under Section 10(A) of the Borstal Schools Act is always available and that should be availed of first. 13. 13. We hope we have made ourselves clear and accordingly, we dismiss all these habeas corpus petitions. However if any of the petitioners want to file an application based on the memorandum dated 22.10.2007, we cannot prevent them and the State shall consider it in accordance with law.