JUDGMENT :- 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 011. 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 petitioners 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 011. 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. 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. 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 011. 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 detenus 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 011. 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, 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 Honble 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.