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2012 DIGILAW 307 (MAD)

Ponmani v. State, Rep by The Inspector of Police

2012-01-19

N.PAUL VASANTHAKUMAR, P.DEVADASS

body2012
Judgment :- P.DEVADASS, J. 1. The petitioners' sons, who were convicted in the same sessions case, have taken analogous stand in claiming the benefit under the provisions of the Tamil Nadu Borstal Schools Act, 1925. The factual matrix and the law on the point being inter-mixed in these two Habeas Corpus Petitions, common arguments were heard, and thus, this Common Order is being rendered. 2. These Habeas Corpus Petitions have been filed finding fault with the imposition of sentences by the learned Sessions Judge in flagrant violation of the provisions of the Tamil Nadu Borstal Schools Act, 1925. 3. According to Mr.P.Ramasamy, learned counsel for the petitioners, at the time of committing the offence, the detenus/accused were adolescents. While sentencing them, the learned Sessions Judge ought to have taken note of the provisions of the Tamil Nadu Borstal Schools Act, 1925. So, petitioners' sons are now entitled to be released. On the contrary, the learned Sessions Judge sentenced them to life and also to varying terms of imprisonment, which was confirmed by this Court in C.A.Nos.203 and 215 of 2010, by Judgment dated 16.11.2010. 4. The learned counsel referred to a decision of the Hon'ble Apex Court in Ravinder Singh v. State of Himachal Pradesh reported in AIR 2010 SC 199 and also an unreported decision of this Court made in C.A.(MD).Nos.31 and 32 of 2007, dated 21.04.2008. In order to highlight his point of view, he also referred to us the word 'adolescent', as defined in Tamil Nadu Prison Rules, 1983. He would submit that, the continued detention of the petitioners' sons is violative of Article 21 of the Constitution of India. The learned counsel also submitted that when the offence was committed, the age of the petitioners' sons were in border line. In such cases, one year, either this way or that way can be given . If that way is adopted, petitioners' sons will have their way out from the jail. 5. On the other hand, Mr.T.Mohan, the learned Additional Public Prosecutor would submit that for claiming the benefit of Tamil Nadu Borstal Schools Act, 1925, the crucial date will be the date on which the conviction was recorded. In this case, when the conviction was rendered, the petitioners' sons have already attained 23 years. In such circumstances, the provisions of the said Act will not be applicable to them. In this case, when the conviction was rendered, the petitioners' sons have already attained 23 years. In such circumstances, the provisions of the said Act will not be applicable to them. He would submit that the decision cited and the definition in the Prison Rules quoted are not applicable to the facts of this case. Therefore, the prayer sought for cannot be acceded to. 6. We have given our anxious consideration to the submissions of either counsel. We have also gleaned through the Judgment of the Hon'ble Apex Court and the unreported decision of this Court. 7. The petitioners' sons, namely, C.Joseph [A-3 in the murder case] and P.Satheesh Kumar [A-2 in the murder case] on 11.06.2010 in S.C.No.243 of 2008 were found guilty under Sections 148, 449, 302 r/w 34 and 506(ii) [2 counts] IPC for having murdered one Rajavel on 11.08.2005 in Thoothukudi and they were sentenced to life under Section 302 r/w 34 of the Indian Penal Code and also to varying prison terms for other proved offences and their sentences were ordered to run concurrently and they are now lodged in Central Prison, Palayamkottai. Subsequently, their challenge to the conviction and sentences were confirmed in C.A.Nos.203 and 215 of 2010 by this Court on 16.11.2010. 8. Now, a plea under Article 21 of the Constitution of India has been made to set the petitioners' sons at liberty, since they were entitled to the benefit of the Tamil Nadu Borstal Schools Act, 1925. 9. In the affidavit filed in support of the plea, it is stated that the petitioners' sons were born on 06.07.1986 and 28.04.1986 respectively. The offence was committed on 11.08.2005. The conviction was rendered on 11.06.2010. Thus, on the date of commission of the offence, they were above 19 years and on the date when the conviction was rendered, they were above 23 years. 10. The Tamil Nadu Borstal Schools Act, 1925, is intended to reform, rehabilitate and relocate adolescent offenders in society with a hope for their future conduct. 11. Thus, on the date of commission of the offence, they were above 19 years and on the date when the conviction was rendered, they were above 23 years. 10. The Tamil Nadu Borstal Schools Act, 1925, is intended to reform, rehabilitate and relocate adolescent offenders in society with a hope for their future conduct. 11. In Section 2(i) of the Act, the word "Adolescent offender" has been defined as under:- "2(i) "Adolescent offender" means any person who has been convicted of any offence punishable with imprisonment, or who having been ordered to give security 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]." [emphasis supplied by us]. 12. As per the said provision, the upper age limit is 21 years. This provision is very clear, simple and devoid of any ambiguity. Thus, for the purpose of giving benefit under the said Act, the crucial date is date of conviction and not date of commission of offence. Both for the boys and girls, different minimum age has been prescribed. But, in both the cases, the maximum age is 21 years. 13. In Tamil Nadu Prison Rules 1983, in Rule 2(i)(a), the phrase "adolescent offender" has been defined as under:- "(a) who has been convicted of any offence punishable with imprisonment, or who having been ordered to give security under Section 117, Code of Criminal Procedure, 1973 (Central Act 2 of 1974), has failed to do so and who at the time of such conviction or failure to give security, is not less than 18 years nor more than 25 years of age." 14. As per the said Rule, the outer age limit is 25 years. It is not uncommon to see a very same word has been defined and treated differently in different Enactments. It is because they being modelled on the object of each enactment, which may differ from enactment to enactment. Interpretation of a provision in a statute is to take as defined in the statute. It is not uncommon to see a very same word has been defined and treated differently in different Enactments. It is because they being modelled on the object of each enactment, which may differ from enactment to enactment. Interpretation of a provision in a statute is to take as defined in the statute. The word 'adolescent', as defined in Section 2(i) of the Tamil Nadu Prison Rules 1983, is not in pari materia with the similar word used in Section 2(i) of the Tamil Nadu Borstal Schools Act, 1925. We cannot strain the plain language in a statute too much and the question of going in for foreign aid, such as parallel enactments etc., comes when the draftsmanship is clumsy and admit of too many meanings. But, that is not the case before us. Both operate in different fields. Therefore, we are solely guided by the provisions in the Tamil Nadu Borstal Schools Act, 1925. 15. On the date when the conviction was recorded, the petitioners' sons were above 21 years. Now, they are more than 23 years old. Therefore, the provisions of the Tamil Nadu Borstal Schools Act, 1925, is not applicable to them. 16. As regards giving them one year backward or upward as to the determination of their age, we have no occasion here to refer to, because in their affidavits itself, petitioners have furnished their dates of birth as 06.07.1986 and 28.04.1986 respectively. Even on the date on which the offence was committed, they have completed 19 years, one month and 5 days and 19 years four months and 17 days respectively. So, it is not a border line case. 17. Now, we shall see the decisions cited by the learned counsel for the petitioners. 18. In Ravinder Singh v. State of Himachal Pradesh (AIR 2010 SUPREME COURT 199), the accused was held to have committed an offence punishable under Section 61 (1)(a) of the Punjab Excise Act 1914, the Chief Judicial Magistrate, Solan sentenced him to six months simple imprisonment and also fined him Rs.5,000/- with default sentence, his appeal to the learned Sessions Judge met with a failure; so also his revision to the Himachal Pradesh High Court, thus, his case came before the Hon'ble Apex Court. Their Lorships, noticing the date of commission of the offence, namely 25.05.1995, since during such time, the said Act did not prescribe a minimum punishment of six months and only subsequently, on 23.6.1995, the Act was amended prescribing minimum punishment of six months, in view of Article 20 of the Constitution of India prohibiting conviction and sentence in criminal proceedings under an ex-posto law, held that the relevant date would be the date of committing the offence and not the date of conviction. Thus, the said observation was made by the Hon'ble Apex Court, on the anvil of Article 20(i) of the Constitution of India. That is not the case and the point before us. Thus, Ravinder Singh (supra) is not applicable to the facts of our case. 19. The next decision cited by the learned counsel for the petitioners is an unreported decision of this Court in Criminal Appeal (MD)Nos.31 and 32 of 2007, delivered on 21.4.2008 between Thindan @ Raj and six others vs. State rep. By Inspector of Police, Alangulam Police Station, wherein at para 11, it was observed as under:- “11. So far as A.3 is concerned, the learned counsel for the appellants brought to the notice of the Court that either at the time of offence or at the time of conviction, A.3 has not completed 21 years. Therefore, he is an adolescent offender and he must be sent to Borstal School till he completed the age of 23 years. Under these circumstances, the court is of the considered opinion that A.3 has got to be sent to Borstal School till he completed the age of 23 years.” 20. It is seen that in the said case, the Court, after referring to the arguments of the learned counsel for the appellant/A.3, held that since A.3 has not completed 21 years at the time of conviction and is an adolescent offender gave him the benefit of the provisions of Tamil Nadu Borstal School Act, 1925, set aside the life sentence and directed his retention in the Borstal School till his completion of 23 years. On facts, the said decision is also not applicable to our case. 21. Thus, looking from any angle, we are unable to accept the plea of the petitioners to set their sons at liberty. 22. In the result, these Habeas Corpus Petitions are dismissed.