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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRL.M.P. NO.853 OF 2013 IN

CRIMINAL APPEAL NO.811 OF 2011

Nagoor Pichai @ Badusha …..Petitioner

Versus

State Tr. Sub-Inspector of Police …..Respondent

J U D G M E N T

VIKRAMAJIT SEN, J.

1. The only question agitated before us by learned Senior Counsel for  

the Petitioner is that the provisions of Tamil Nadu Borstal Schools Act,  

1925 (hereinafter ‘Borstal Schools Act’) have been ignored by the Courts  

below.  It is evident from a perusal of the impugned judgment that the  

applicability of the said statute has not been raised in either of the Courts  

below.   Briefly  stated,  the  Petitioner  has  been  sentenced  to  life  

imprisonment under Section 302 of the Indian Penal Code for the murder  

of his paternal uncle on 12.8.1999.  It is not disputed before us that the  

Petitioner’s date of birth is 29.11.1979 thereby making him 19 years 8  

months of age on the date of the commission of the murder.  The Petitioner

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Crl.M.P.No.853/13 in Crl.A. No 811/11 …. (contd.)

having been found guilty has been sentenced to life imprisonment vide  

judgment of the Trial Court pronounced on 6.9.2002, on which date the  

Petitioner was 22 years 9 months old.  It is contended before us by learned  

Senior Counsel that the Courts below erred in not directing the detention  

of the Petitioner in a Borstal School.

2.      The Borstal Schools Act does not contemplate the term ‘juvenile’ at  

all.   However,  the  definition  of  ‘adolescent  offender’ is  contained  in  

Section 2(1) of the said Act and reads thus :

“  ‘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.”  

We should  clarify that  Section 118  corresponds  to  Section 110  of  the  

current 1973 Cr.P.C.  The age of a juvenile prior to the present Act was 16  

years and a legal anachronism palpably exists requiring an amendment to  

the Borstal Schools Act substituting the age of 16 years by 18 years for a  

boy.  ‘Adolescent’ is seldom considered in any legal dictionary, whereas  

juvenile/minor/child  is  ubiquitously  dealt  with.   Adolescence  is  the  

penumbral period (presently between 18 years and 23 years) when, for  

good reason,  a person is not perceived and treated as an adult for the  

purposes of incarceration.  The Borstal School is a halfway house intended  

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Crl.M.P.No.853/13 in Crl.A. No 811/11 …. (contd.)

to prepare a person for imprisonment in a regular/ordinary jail.  Section 8  

of the Borstal Schools Act stipulates that a convict cannot remain in a  

Borstal School beyond a period of five years or his attaining the age of 23  

years.  We should immediately note the distinction, as the relevant statutes  

ordain,  between  an  ‘adolescent’ and  a  ‘juvenile’.   ‘Juvenile’ and  its  

statutory synonym ‘child’ (and now even ‘minor’) has been defined in the  

Juvenile Justice (Care and Protection of Children) Act, 2000 [for short,  

‘Juvenile Justice Act’] simply as a person who has not completed eighteen  

years of age.  The repealed Juvenile Justice Act treated any person below  

the  age  of  sixteen  years  as  a  juvenile  and  it  is  this  age  which  is  

contemplated in the Borstal Schools Act.  By virtue, therefore, of Section  

8 of the Juvenile Justice Act, Special Homes have to be established for the  

‘reception and rehabilitation of a juvenile in conflict with law’.  Again, it is  

this Act in terms of Section 16, that places an embargo on the imposition  

of any sentence of death or imprisonment for life.  

3.   In the context of the arguments addressed before us it is important to  

emphasise  that  it  is  the  date  of  conviction  that  assumes  singular  

significance. By virtue of the statutory definition of ‘adolescent offender’,  

on the date of the conviction he should have been not less than 16 years  

but not more than 21 years of age.  Although this question does not arise  

directly before us, the date of juvenility was less than 16 years of age and,  

therefore, a plea on this ground had not been raised since the Petitioner  

was over 19 years on the date of occurrence of the unfortunate event or  

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Crl.M.P.No.853/13 in Crl.A. No 811/11 …. (contd.)

the conviction.  Even in the postulation of the Juvenile Justice Act,  no  

relief is available even retrospectively to the Petitioner.  Under Section 8  

of the Borstal Schools Act, the Court is empowered to pass a sentence of  

detention in the Borstal School when it appears to it expedient to pass  

such a sentence for a term which shall not be less than two years but shall  

not exceed five years.  The rationale behind these provisions is obviously  

to insulate a young person or adolescent in contradistinction to a juvenile,  

during his waning impressionable years, from the pernicious influence of  

hardened criminals;  and,  on the  other  hand,  to  similarly insulate  other  

persons sentenced to detention in Borstal Schools from the influence of  

convicts who have attained the age of 23 years or who have been detained  

in a Borstal School for five years.    

4.    Learned Senior Counsel has drawn our attention to Yaduraj Singh v.  

State of U.P. (1976) 4 SCC 310 and C. Elumalai v. State of Tamil Nadu  

(1984) 4 SCC 539 both of which have no relevance to the issue raised  

before us,  that too for the first time.  In  Yaduraj Singh this Court had  

emphasised that the plea under the Probation of Offenders Act had not  

been raised in any of the Courts below and whilst it could nevertheless be  

pressed, such a course invariably presents difficulties in comprehensively  

considering the plea because of the absence of any credible evidence to  

determine the juvenility of the person concerned.  We hasten to clarify that  

we have not declined to entertain the plea on the ground that it has not  

been  raised  in  any  of  the  Courts  below,  therefore  rendering  Yaduraj  

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Crl.M.P.No.853/13 in Crl.A. No 811/11 …. (contd.)

Singh of no assistance to the Petitioner.  The ratio of  Elumalai follows  

upon a bare reading of Sections 8 and 10 of the Borstal Schools Act which  

we  shall  reproduce  so  as  to  make  our  judgment  holistic  and  self  

contained :

“8.  Power of  Court  to pass  sentence  of  detention in  

Borstal  School. (1)  Where  it  appears  to  a  Court  having  

jurisdiction under this Act that an adolescent offender should, by  

reason of his criminal habits or tendencies, or association with  

the persons of bad character,  be subject to detention for such  

term and under such instruction and discipline as appears most  

conducive to his reformation and the repression of crime, it shall  

be  lawful  for  the  Court,  in  lieu  of  passing  a  sentence  of  

imprisonment, to pass a sentence of detention in a Borstal school  

for a term which shall not be less than two years and shall not  

exceed five years but in no case extending beyond the date on  

which the adolescent offender will, in the opinion of the Court,  

attain the age of twenty-three years.

(2)  Before passing a  sentence of detention in a  Borstal  

School under sub-section (1), the Court

(a) shall call for a report from the Probation Officer of the  

area in which the offender permanently resided at the time when  

he committed the offence and shall consider such report,  

(b) shall consider any other report or representation which  

may be made to it, and

(c) may make such further inquiry as it may think fit,

as to suitability of the case for treatment in a Borstal school and  

shall be satisfied that the character, state of health and mental  

condition of the offender and the other circumstances of the case  

are such that the offender is likely to profit by such instruction  

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Crl.M.P.No.853/13 in Crl.A. No 811/11 …. (contd.)

and discipline as aforesaid.

(3) The report of a Probation Officer referred to in sub-

section (2) shall be treated as confidential.  

Provided  that  the  Court  may,  if  it  so  thinks  fit,  

communicate the substance thereof to the offender and may give  

him  an  opportunity  of  producing  such  evidence  as  may  be  

relevant to the matter stated in the report.

10. Power of Inspector-General to transfer prisoners to  

Borstal  Schools.-The Inspector  General  may, subject  to  rules  

made by the State Government, if satisfied that any adolescent  

offender undergoing imprisonment in consequence of a sentence  

passed either before or after the passing of this Act might with  

advantage be detained in a  Borstal school,  there  to serve the  

whole or any part of the unexpired residue of his sentence.  The  

provisions of this Act shall thereupon apply to such person as if  

he  had  been  originally  sentenced  to  detention  in  a  Borstal  

school.”

5.    So far as the facts in the present Appeal are concerned, since on the  

date of his conviction the Petitioner was over 21 years old, and therefore,  

was not a juvenile under the erstwhile or current statutory dispensation as  

per  the  wisdom of  the  Legislature,  there  was  no  impediment  or  legal  

impropriety in his having to undergo his sentence in an ordinary jail; on the  

contrary being an adult it would not have been advisable for him to be  

detained in a Borstal School as he may detrimentally influence younger  

persons.  The position would have been totally different had he, on the  

date of his conviction, been between ages of 16 and 21 years as he would  

then have required to be placed in a Borstal School.  Even if this infraction  

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Crl.M.P.No.853/13 in Crl.A. No 811/11 …. (contd.)

had occurred, the Petitioner would not be entitled to bail today solely on  

that score.  In any event, the entire argument is totally academic since on  

the present date the Petitioner is over 30 years of age and on the date of  

his conviction for the commission of the offence, the Petitioner was over  

21 years of age.  The Borstal Schools Act merely concerns detention of a  

convict, whereas the Juvenile Justice Act deals with detention as also the  

punishment or sentence that can be imposed.

6.    Accordingly the Application for bail, on the grounds pressed before  

us, is devoid of merit and is dismissed.

.............................................J .

[T.S. THAKUR]

.............................................J .

[VIKRAMAJIT SEN] New Delhi September 19, 2013.

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