Telangana High Court
Chilaka Satyam, vs The State Of Telangana, on 11 January, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
WRIT PETITION No.39592 OF 2017
ORDER:
(Per Hon'ble Sri Justice K. Lakshman)
Heard Mr. K.Vasanth Rao, learned counsel for the petitioner,
Mr. Samala Ravinder, learned Govt.Pleader for Home.
2. The petitioner herein is an Advocate Clerk. He filed the
present writ petition to transfer the adolescent offender by name
Kotagiri Ganga Prasad presently confined in 3rd respondent jail to 4th
respondent Borstal School, Nizamabad and he sought consequential
direction to 1st respondent to transfer the adolescent offender from 3rd
respondent jail to 4th respondent School in accordance with Section
10-A of the A.P./Telangana Borstal School Act, 1925 (for short, 'the
Act') duly providing the adolescent offender the benefits of the said
Act.
3. The petitioner herein is an Advocate Clerk. According to
him, the adolescent offender was born on 20.06.1993. He was
convicted by the learned Sessions Judge, Nizamabad vide judgment
dated 31.12.2013 in S.C.No.242 of 2013 for the offence punishable
under Section 302 of IPC and sentenced him to undergo life
imprisonment. At present he is languishing in 3rd respondent jail.
4. It is further contended by the petitioner that the adolescent
offender is not below the age of 16 years and not above the age of 21
years as on the date of incident and conviction. Therefore, he has to
be transferred to 4th respondent School in terms of Section 10(A) of
the Act. The adolescent offender can be kept in 4th respondent School
for a period of two years and released after reformation. In support of
his case, he placed reliance on the following judgments passed by the
Apex Court and High Courts:-
1. State of Andhra Pradesh vs. Komalla Krishnaiah1
2. R.Krishna vs. Govt.of AP 2
3. Bhola Bhagat vs. State of Bihar3
4. Pradeep Kumar vs. State of UP 4
5. Jayendra v. State of U.P. 5
6. Bhoop Ram v. State of UP 6
7. Manda Raju @ Mandula Raju vs. State of Andhra Pradesh7
Manu/AP/0098
2006 (1) ALD (Crl) 834 (AP)
1997 (2) ALD (Crl) 645 (SC) =(1997) 8 SCC 720
1995 Supp(4) SCC 419
(1981) 4 SCC 149
(1989) 3 SCC 1
8. Superintendent, Central Prison, Chenchalguda, Hyderabad
vs. C.Narasimhulu 8
5. The allegation leveled against the adolescent offender is that
he killed his father, therefore, he remains deserted by his near and dear
ones. Sri Kotla Chaithanya, Advocate made a representation on behalf
of adolescent offender to 1st respondent to reform the adolescent
offender by sending him to 4th respondent School. He has also
requested to communicate a copy of the said order of transfer to him.
Despite receiving and acknowledging the said representation, dated
17.07.2017, 1st respondent neither acted upon the same nor responded
to it resulting in mingling of the adolescent offender with the other
hardened criminals.
6. It is further contended that A.P. Borstal School Act is a
beneficial piece of legislation, which provides for provision
appointing the District Prohibition Officer, to physically verify the
antecedents of the adolescent offenders. The said principle was also
held in Komalla Krishnaiah (supra). Despite availability of the said
mechanism, 1st respondent has not considered the representation dated
2011 (2) ALD (Crl) 669 (AP) DB
1999 (1) ALT 107 DB
17.07.2017 submitted by the said Advocate. Therefore, he has filed
the present writ petition.
7. Whereas, 3rd respondent filed counter contending that the
petitioner is an Advocate Clerk and has no locus to file the present
writ petition. The conviction was dated 31.03.2013. the aforesaid
representation dated 17.07.2017 is submitted after about four years of
the conviction. The adolescent offender has not submitted any
conclusive proof with regard to his date of birth and age though he
claimed his date of birth as 20.06.1993. As on the date of submission
of representation, he crossed 21 years and therefore, extending benefit
to the adolescent offender in terms of Section 8 of the Act does not
arise. The Adolescent offender did not take the said plea that he was
adolescent offender as on the date of conviction when he was
questioned by the trial court on the sentence. The 1st respondent has
considered the representation dated 17.07.2017 submitted by the
Advocate and rejected the same vide order dated 19.05.2018. The
same was not challenged. With the said submissions, 3rd respondent
sought to dismiss the present writ petition.
8. Learned counsel for the petitioner and learned Govt.Pleader
for Home reiterated the aforesaid contentions during the arguments.
9. In the light of the aforesaid submissions, it is relevant to
extract certain provisions of the Act which are as follows:-
Section 2(1) of the Act:- "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 106 or 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 nor more than 21 years of age;
Section 8 of the Act: Power of Court to pass sentence of detention
in Borstal school. - 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 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]:
Provided that, before passing such sentence, the Court shall
consider any report or representation which may be made to
it [(including any report or representation made by the probation
officer of the area in which the offender permanently resided at the
time when he committed the offence)] as to the 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 and discipline as aforesaid.
Section 10-A of the Act: Power of State Government to transfer
offenders sentenced to transportation to Borstal schools. -
(1) The State Government may, if satisfied that any offender who
has been sentenced to transportation either before or after the
passing of the [Madras] Borstal Schools (Amendment) Act, 1939,
and who at the time of conviction was not less than 16 nor more
than 21 years of age, might with advantage be detained in a Borstal
school, direct that such offender shall be transferred to a Borstal
school, there to serve the whole or any part of the unexpired
residue of his sentence. The provisions of this Act shall apply to
such offender as if he had been originally sentenced to detention in
a Borstal school. An order may be made under this section
notwithstanding that the sentence of transportation has been
subsequently commuted into a sentence of imprisonment.]
(2) Notwithstanding anything contained in section 8, the term of
detention of an offender who is transferred to the Borstal School
under sub-section (1) shall be for a minimum period of two years.
10. As per the aforesaid provisions, to claim benefit under
Section 8, adolescent offender shall be not less than the age of 16 but
not more than the age of 21 years.
11. As per Section 8 of the Act, we have to consider the date of
conviction. As per Section 10-A of the Act, the State Government is
having power to transfer adolescent offenders to Borstal School.
12. As discussed supra, the adolescent offender is claiming that
his date of birth is 20.06.1993. He relied on SSC certificate issued by
the AP Open School Society Hyderabad, through its Coordinator,
ZPHS (G) Bheemgal, and filed copy of the same, wherein his date of
birth is mentioned as 20.06.1993. Thus he was 20 years 6 months 11
days as on the date of conviction.
13. It is also not in dispute that he has not raised the said ground
during hearing him on sentence by the trial Court. However, he can
claim the said benefit at any stage. In similar circumstances, this Court
vide order dated 18.07.2023 in Crl.R.C.No.273 of 2019 held that
'juvenility' can be raised at any point of time at any stage even after
confirming the conviction by the Sessions Court.
14. According to the petitioner, Sri Kotla Chaithanya, Advocate
had submitted a representation dated 17.07.2017 to 1st respondent
duly marking a copy to 3rd respondent on behalf of adolescent
offender with a request to send him to 4th respondent School. Thus, as
on the date of said representation, the adolescent offender was 24
years 17 days. The petitioner herein, an Advocate Clerk filed the
present writ petition on 21.11.2017, by which date the adolescent
offender was 24 years 5 months 01 day. As discussed supra, as per
Section 8 of the Act, we have to consider the date of conviction.
Section 8 of the Act says it shall be lawful for the trial court in lieu of
passing a sentence of imprisonment and passed sentence of detention
in a Borstal School for a term which shall not be less than two years
and shall not exceed 5 years, but in no case extending the date of
adolescent offender will in the opinion of the Court attained the age of
23 years.
15. As discussed supra, the adolescent offender did not take the
said plea that he was adolescent offender as on the date of conviction
while hearing him on the sentence by the trial court. As on the date of
making representation by the Advocate on his behalf of the adolescent
offender, he was 24 years 17 days. As on the date of filing of the
present writ petition, he was 24 years 5 months 01 day.
16. As per Section 10(A) of the Act Government is having
power to transfer the adolescent offender to Borstal School.
Considering the same, vide order dated 02.05.2018, a learned Single
Judge of this Court in W.P.No.39592 of 2017 directed the respondents
1 to 3 to consider the representation dated 17.07.2017 in the light of
the ratio laid down in the decisions of this Court referred in the said
order and make an adhoc arrangement as sought for in the petition
after taking a considered decision in the matter within a period of
three weeks from the date of receipt of a copy of the said order subject
to final orders in the writ petition.
17. It is the specific contention of the learned Govt.Pleader for
Home that the said representation was considered and the claim of the
petitioner was rejected vide order dated 19.05.2018. However, there is
no challenge to the said order. As on today, he is aged 30 years 06
months. Therefore, he is not entitled for benefit under Section 8 of the
Act. As discussed supra, interim order dated 02.05.2018 was complied
with and the said representation dated 17.07.2017 was rejected vide
order dated 19.05.2018. The same was not challenged and it has
attained finality.
18. It is also relevant to note that the appellant herein preferred
an appeal vide Crl.A.No.167 of 2017 on 17.02.2014 challenging the
judgment dated 31.12.2013 in S.C.No.242 of 2013 passed by the
learned Sessions Judge, Nizamabad. The said appeal is pending. The
bail application filed by him was dismissed.
19. In R.Krishna (supra), learned Single Judge of Andhra
Pradesh High Court relying on a Division Bench judgment in Public
Prosecutor (AP) vs. Mohan Rao 9 and also Division Bench Judgment
of AP High Court in Komalla Krishnaiah (supra), Bhola Bhagat
(supra), Jayendra (supra) Bhoop Ram (supra) held in paragraph
Nos.19 and 20 considered the scope of Sections 8 and 10 of the Act
and the same are extracted below:-
It is true that under Section 8 of the Act while passing a sentence of
detention in a Borstal School, the term of detention shall not be extended
beyond the date on which the adolescent offender will attain the age of 23
years. However, Section 10-A of the Act does not contain any such
restriction and there is no other provision under the Act which either
expressly or by way of implication extends the restriction under Section 8 of
the Act to the power conferred on the Government to transfer an offender to
a Borstal School under Section 10-A of the Act. On the other hand,
Sub section (2) of Section 10-A of the Act which was inserted under A.P.
Borstal Schools (Amendment) Act, 2001 (Act No.3 of 2001) mandates that
an offender who is transferred to the Borstal School under Sub-section (1)
of Section 10-A of the Act shall be detained for a minimum period of two
years. Sub-section (2) of Section 10-A of the Act which starts with a non-
obstante clause makes it clear that notwithstanding the restriction imposed
under Section 8 of the Act the term of detention of an offender who is
transferred to a Borstal School under Section 10-A of the Act shall be for a
minimum period of two years. Even the Statement of Objects and Reasons
to the Amendment Act, 2001 (Act No.3 of 2001) show that the insertion of
Sub-section (2) is only for the purpose of making it clear that the term of
detention of an offender who is transferred to a Borstal School under
Section 10-A of the Act shall be for a minimum period of two years
notwithstanding the requirement of Section 8 of the Act that no inmate can
1963 (2) AnWR 479
be detained in a Borstal School after attaining the age of 23 years. Hence, it
cannot be said that there is any embargo to order transfer of the offender to a
Borstal School under Section 10-A of the Act even where the offender has
crossed the age of 23 years.
For the aforesaid reasons and since admittedly the petitioner's son was
less than 21 years of age by the date of the offence as well as the date of
conviction, as observed by the Supreme Court in BHOLA BHAGAT'S case
(3 supra), it would be appropriate to extend the benefit of Socially Oriented
Legislation to him thereby affording him an opportunity to reform himself
and to reclaim as useful member of the society. Hence, in my considered
opinion, instead of compelling the son of the petitioner to undergo
remaining sentence in a regular prison in the company of hardened
criminals, it would be just and proper to transfer him to a Borstal School for
detention for a period of two years for reformation.
20. In Komalla Krishnaiah (supra), the Division Bench
considering the age of the adolescent offender therein i.e. 20 years 03
months as on the date of conviction, the State Government rejected his
request twice, and that he is going to attain age of 23 years shortly, in
the interest of justice directed the State Government to transfer the
offender to Borstal School in exercise of its power under Article 226
of the Constitution of India. But in the present case, the facts are
slightly different. As discussed supra, as on the date of making
representation dated 17.07.2017 and as on the date of filing writ
petition, the adolescent offender crossed 23 years.
21. In C.Narsimhulu (supra), the Division Bench relying on the
principle laid down in Komalla Krishnaiah (supra) and also
considering the age of the adolescent offender therein was 20 years,
directed to transfer the adolescent offender to Borstal School. As
discussed supra, in the present case, the facts are slightly different and
the adolescent offender crossed 23 years as on the date of making
representation and filing writ petition.
22. In Pradeep Kumar (supra), the three Judge Bench of the
Apex Court held as follows:-
"At the time of the occurrence Pradeep Kumar appellant, aged about
15 years, was resident of Railway Colony, Naini, Krishan Kant and
Jagdish appellants, aged about 15 years and 14 years, respectively,
were residents of Village Chaka, P.S. Naini."
At the time of granting special leave, two appellants therein produced
school-leaving certificate and horoscope respectively showing their ages as
15 years and 13 years at the time of the commission of the offence and so
far as the third appellant is concerned, this Court asked for his medical
examination and on the basis thereof concluded that he was also a child at
the relevant time. The Court then held: (SCC p. 420, paras 3 and 4).
"It is, thus, proved to the satisfaction of the Court that on the date of
occurrence, the appellants had not completed 16 years of age and as such
they should have been dealt with under the U.P. Children Act instead of
being sentenced to imprisonment on conviction under Sections 302/34 of
the Act.
Since the appellants are now aged more than 30 years, there is no
question of sending them to an approved school under the U.P. Children Act
for detention. Accordingly, while sustaining the conviction of the appellants
under all the charges framed against them, we quash the sentences awarded
to them and direct their release forthwith. The appeals are partly allowed in
the above terms." (emphasis supplied)
23. In Krishna Bhagwan v. State of Bihar , the Full Bench of
Patna High Court held that the question relating to the determination
of the age of the accused and the belated raising of that plea and
opined that though the normal rule is that a plea unless it goes to the
very root of the jurisdiction should not be allowed to be taken at the
appellate stage especially when it requires investigation into a
question of fact but a plea that the accused in question was a "child"
within the meaning of the Act can be entertained at the appellate stage
also and should not be overlooked on technical grounds.
24. Relying on the said principle, in Bhola Bhagat (supra)
also considering the age of the adolescent offender therein was 18
years, that they were children and also on examination of the
provisions of the Bihar Children Act, 1970, the Apex Court held
that they shall be given benefit under Bihar Children Act, 1970
which is social beneficial enactment.
AIR 1989 Pat 217
25. In Pradeep Kumar (supra) considering the age of the
adolescent offender as on the date of judgment i.e. 30 years, the Apex
Court held that there is no question of sending them to an approved
school under the UP Children Act for detention. Therefore, the Apex
Court while confirming the conviction of the appellant therein under
all the charges framed against them, quashed the sentences awarded
and directed their release forthwith.
26. In Manda Raju (supra), the Division Bench considered the
age of the appellant therein as less than 18 years as on the date of
commission of offences held that the appellant therein/accused
entitled to be released from Central Prison and kept under protection
of his mother in accordance with Section 15 of the Juvenile Justice
Act. 2000. But the facts of the present case are altogether different.
27. In Jayendra (supra), it was held that where an accused had
been wrongly sentenced to imprisonment instead of being treated as a
'child' under Section 2(4) of the U.P. Children Act, sent to an
approved school and the accused had crossed the maximum age of
detention in an approved school viz. 18 years, the course to be
followed is to sustain the conviction but however quash the sentence
imposed on the accused and direct his release forthwith.
28. In Bhoop Ram (supra), the Apex Court considered the
question whether the appellant who had been convicted and sentenced
along with certain adult accused should have been treated as a child
within the meaning of Section 2(4) of the U.P. Children Act, 1951 and
sent to the approved school for detention therein till he attained the
age of 18 years instead of being sentenced to undergo imprisonment in
jail. The Court after considering the material on record, the appellant
therein could not have completed 16 years age as on the date when the
offence was committed and held that the appellant should have been
dealt under the UP Children Act instead of being sentenced to
imprisonment when he was convicted by the Sessions Judge under
various grounds. Since, the appellant had by the time the appeal was
heard by the Apex Court, reached the age of more than 28 years, the
Apex Court sustained the conviction of the appellant therein under all
the charges framed against him, but however quashed the sentence
awarded to him and direct his release forthwith.
29. In the light of the principle laid down in the aforesaid
judgments, coming to the facts of the present case, as discussed supra,
the adolescent offender was 20 years 6 months 11 days, as on the date
of conviction i.e. 31.12.2013 in S.C.No.242 of 2013; as on the date of
making representation i.e. 17.07.2017, he was 24 years 17 days; as on
the date of filing the writ petition, he was 24 years 5 months 01 day
and as of today, he is 30 years 6 months. Therefore, the adolescent
offender is not entitled for the benefit under Section 8 of the Act.
30. As discussed supra, considering the power of 1st respondent
under Section 10(A) of the Act, this Court vide interim order dated
02.05.2018 directed 1st respondent to consider the representation dated
17.07.2017. 1st respondent has considered the said representation in
compliance with the said interim order and rejected the claim of the
appellant vide proceedings dated 19.05.2018 on the ground that he has
crossed 23 years. There is no challenge to the said order. Therefore,
the adolescent offender is not entitled for benefit under Section 8 of
the Act. As discussed supra, he has already filed an appeal vide
Crl.A.No.167 of 2014 and the same is pending. He should have
pursued the said appeal instead of pursuing the present writ petition.
31. As discussed supra, Mr. Chilaka Satyam, Advocate Clerk
filed the present writ petition. He is not stated in the entire affidavit as
to how he has locus to file the present writ petition and to espouse
cause of the adolescent offender. According to him, adolescent
offender has been deserted by near and dear ones. He filed this writ
petition on his behalf. An Advocate or his clerk cannot sworn affidavit
on behalf of their client and they cannot espouse the cause of the
petitioner. If they are really interested, they should have obtained
vakalath and signatures on the writ affidavit of the adolescent offender
from the jail and should have filed the present writ petition. Instead,
the Advocate Clerk has filed the present writ petition. Therefore, he
has no locus to file the present writ petition and this writ petition is
liable to be dismissed.
32. In the result, the writ petition is dismissed.
Consequently, miscellaneous petitions, if any, pending in this
writ petition shall stand closed.
________________________
JUSTICE K. LAKSHMAN
____________________
JUSTICE K. SUJANA
Date:11.01.2024.
Vvr
