1988 JTR(SC) 609
1989 1 AICLR 73 ; 1988 AIR(SC) 2235 ; 1989 CriLR 177 ; 1988 3 Crimes(SC) 500 ; 1989 CrLJ 297 ; 1988 3 JT 729 ; 1988 RLR 593 ; 1988 2 Scale 797 ; 1989 1 SCC 235 ; 1989 SCC(Cri) 101 ; 1988 Supp3 SCR 141 ; 1989 1 UJ 195 ; 1989 KHC 1049
SUPREME COURT OF INDIA
RANGANATH MISRA AND M.N. VENKATACHALIAH, JJ.
Sube Singh and others etc. etc., Petitioners
Versus
State of Haryana and others, Respondents.
Writ Petn. No. 648 of 1987 (with W.P. (Crl.) Nos. 701, 708, 729, 882, 652, 679, 700, 678 and 699 of 1987 and 60-61 of 1988, 692-93, 866 and 752 and 775 of 1987),
D/-21-9-1988.
Act
Referred
:INDIAN PENAL CODE : S.302
PUNJAB BORSTAL ACT : S.5, S.2(4)
(A) The Punjab Borstal Act, 1926, read with Sections 2(4) and 5, governs the detention and treatment of adolescent offenders, defining an "offence" as one punishable under the Indian Penal Code other than an offence punishable by death. Section 5 limits detention to a maximum of seven years for such offenders. The Indian Penal Code Section 302, which prescribes punishment for murder, carries a mandatory death penalty as one of its authorized punishments, rendering the offence "punishable with death" within the meaning of the Act. Consequently, an offence under Section 302 IPC falls outside the scope of the Punjab Borstal Act, as the Act does not apply to offences punishable by death.
(B) Key legal principles include: the interpretation of the word "punishable" as "liable to be punished" and not "must be punished"; the binding nature of a larger Bench decision; the distinction between offences attractable to Borstal treatment versus those attractable only to rigorous imprisonment or death; and the principle that where a statute specifies a particular punishment, the offence is deemed punishable by that punishment even if a lesser penalty is ultimately awarded.
Facts of the case:
Petitioners were convicted for the offence of murder punishable under Section 302 of the Indian Penal Code and sentenced to life imprisonment. The State of Haryana challenged their claims for entitlement to the benefit of Section 5 of the Punjab Borstal Act, 1926, which would limit their detention to seven years in a Borstal Institute.
Findings of Court:
The Court held that the offence of murder is punishable with death under Section 302 IPC, and thus the offence is excluded from the definition of "offence" in the Punjab Borstal Act. The larger Bench in Subhash Chand v. State of Haryana expressly held that the Punjab Borstal Act does not apply to an offence punishable under Section 302 IPC, and this binding decision was followed.
Issues:
Whether an offence punishable under Section 302 of the Indian Penal Code is within the scope of the Punjab Borstal Act, 1926, and whether a petitioner convicted under that section is entitled to the benefit of Section 5 of the Act.
Ratio Decidendi:
Since the offence of murder is punishable with death under the Indian Penal Code, it falls outside the definition of "offence" under the Punjab Borstal Act, and the provisions of the Act, including Section 5, are not available to the petitioner even though the actual sentence imposed is life imprisonment.
Result:
The writ petitions are dismissed with no order for costs.
(A) The Punjab Borstal Act, 1926, read with Sections 2(4) and 5, governs the detention and treatment of adolescent offenders, defining an "offence" as one punishable under the Indian Penal Code other than an offence punishable by death. Section 5 limits detention to a maximum of seven years for such offenders. The Indian Penal Code Section 302, which prescribes punishment for murder, carries a mandatory death penalty as one of its authorized punishments, rendering the offence "punishable with death" within the meaning of the Act. Consequently, an offence under Section 302 IPC falls outside the scope of the Punjab Borstal Act, as the Act does not apply to offences punishable by death.
(B) Key legal principles include: the interpretation of the word "punishable" as "liable to be punished" and not "must be punished"; the binding nature of a larger Bench decision; the distinction between offences attractable to Borstal treatment versus those attractable only to rigorous imprisonment or death; and the principle that where a statute specifies a particular punishment, the offence is deemed punishable by that punishment even if a lesser penalty is ultimately awarded.
Facts of the case:
Petitioners were convicted for the offence of murder punishable under Section 302 of the Indian Penal Code and sentenced to life imprisonment. The State of Haryana challenged their claims for entitlement to the benefit of Section 5 of the Punjab Borstal Act, 1926, which would limit their detention to seven years in a Borstal Institute.
Findings of Court:
The Court held that the offence of murder is punishable with death under Section 302 IPC, and thus the offence is excluded from the definition of "offence" in the Punjab Borstal Act. The larger Bench in Subhash Chand v. State of Haryana expressly held that the Punjab Borstal Act does not apply to an offence punishable under Section 302 IPC, and this binding decision was followed.
Issues:
Whether an offence punishable under Section 302 of the Indian Penal Code is within the scope of the Punjab Borstal Act, 1926, and whether a petitioner convicted under that section is entitled to the benefit of Section 5 of the Act.
Ratio Decidendi:
Since the offence of murder is punishable with death under the Indian Penal Code, it falls outside the definition of "offence" under the Punjab Borstal Act, and the provisions of the Act, including Section 5, are not available to the petitioner even though the actual sentence imposed is life imprisonment.
Result:
The writ petitions are dismissed with no order for costs.
C.V.SUBBA RAO, D.S.TEVATIA, Mahabir Singh, Mukul Mudgal, N.SUDHAKARAN, P.K.JAIN, PREM MALHOTRA, R.P.SINGH PAL, Rakesh K.Khanna, S.K.SABHARWAL, URMILA KAPUR
Judgment
RANGANATH MISRA, J. :- These are a batch of writ petitions under Article 32 of the Constitution raising the common claim of entitlement to the benefit of Section 5 of the Punjab Borstal Act, 1926.
2. In each of these writ petitions, the petitioner has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to life imprisonment. The State of Haryana has challenged the claim of the petitioner in each of these writ petitions.
3. Learned counsel for the petitioners has relied upon the decision of this Court in Hava Singh v. State of Haryana, (1987) 4 SCC 207 in support of the claim advanced in the writ petitions. A two Judge Bench of this Court in that case referred to Section 5 of the Act and held (at p. 2004 of AIR) :-
"On a conspectus of the aforesaid decision as well as on a consideration of the facts and circumstances the only conclusion follows that the petitioner who has already undergone actual imprisonment for seven years is entitled to be released from detention and from imprisonment. Paragraph 516-B of the Punjab Jail Manual is not applicable in this case as the petitioner who was an adolescent convict below twenty-one years of age was sent to the Borstal Institute at Hissar for detention in accordance with the provisions of Section 5 of the Punjab Borstal Act, 1926. He being convicted by the Sessions Judge the maximum period of detention as prescribed by the Act is seven years. We have already said hereinbefore that such an inmate of the Borstal Institute cannot be transferred to jail on the ground that he has attained the age of twenty-one years as the said Act does not provide for the same. The only provision for transfer to jail is in the case of incorrigible inmate or inmates convicted of major Borstal Institution offence."
4. Reliance was also placed by learned counsel for the petitioners on another two Judge Bench decision of this Court in the case of State of Andhra Pradesh v. Vallabhapuram Ravi, (1984) 4 SCC 410. That was a case under the Andhra Pradesh Borstal Schools Act. 1925 (5 of 1926) and the question for consideration was the same as here with reference to the provision of Section 8 of that Act. The two Judge Bench held that the provisions of the Borstal Schools Act applied to the offence punishable under Section 302 of the Indian Penal Code.
5. Both these cases were referred to in Subhash Chand v. State of Haryana, (1988) 1 SCC 717 by a three Judge Bench. It referred to Hava Singhs case (AIR 1987 SC 2001) (supra) at length. The three Judge Bench in its judgment referred to the definition of offence under Section 2(4) of the Punjab Borstal Act which defined offence to mean (at p. 586 of AIR) -
"an offence punishable with transportation or rigorous imprisonment under the Indian Penal Code other than -
(a) an offence punishable with death;"
The Court found that Section 302 of the Indian Penal Code provides (at p. 586 of A IR).
"Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine" and proceeded to say again "one of the punishments for the offence of murder is death and, therefore, the offence of murder would be covered within Section 2(4)(i)(a) of the Punjab Act and to such a conviction the Punjab Borstal Act would have no application. Support for such a view is available from several decisions of different High Courts."
The Court ultimately held (at p. 587 of AIR) :-
"In Hava Singhs case (AIR 1987 SC 2001) the definition was not placed for consideration before the Court and, therefore, the conclusion which has been reached is not correct. The Punjab Borstal Act does not have application to an offence punishable under Section 302 of IPC".
This being a decision of a larger Bench we are bound by it.
6. In the Websters Third New International Dictionary the following meaning has been given to the word punishable -
"Deserving of, or liable to, punishment: capable of being punished by law or right."
7. Aiyars The Law Lexicon (Reprint Edition 1987) gives the meaning of punishable thus :-
"The word punishable as used in statutes which declare that certain offences are punishable in a certain way, means liable to be punished in the way designated."
8. In Bouviers Law Dictionary, the meaning of the word punishable has been given as liable to punishment. In Words and Phrases - Permanent Edition, the following meaning has been given :-
"The word punishable in a statute stating that a crime is punishable by a designated, penalty or term of years in the State prison limits the penalty or term of years to the amount or term of years stated in the statute".
9. The word punishable is ordinarily defined as deserving of or capable or liable to punishment, punishable within statute providing that defendant may have ten peremptory challenges if offence charged is punishable with death or by life imprisonment; means deserving of or liable to punishment; capable of being punished by law or right, may be punished, or liable to be punished, and not must be punished.
9A. Corpus Juris Secundum gives the meaning as :-
"Deserving of, or liable to, punishment; capable of being punished by law or right; said of persons or offences. The meaning of the term is not must be punished, but may be punished, or liable to be punished.
In the absence of a definition of punishable we have referred to these for gathering the exact meaning of the word. In the sense given to the word, as above, there can be no doubt that the offence of murder is punishable with death even though the punishment awarded is not death but imprisonment for life.
10. An earlier decision of this court in Kunwar Bahadur v. State of U. P. 1980 Supp SCC 339. where a two Judge Bench dealt with the provisions of the United Provinces Borstal Act 7 of 1938 was also relied upon. The judgment is a short one. Detailed reference to the provisions of the United Provinces Act has not been made but Section 7 of the Act was referred to and it was observed :-
"Under this Section where a prisoner is sentenced for transportation i. e. life imprisonment and is below the age of 21 years he should be sent to Borstal School where he cannot be detained for more than five years. The law thus contemplates that for such an offender the sentence of five years will be equivalent even to a higher sentence of life imprisonment."
Obviously in the United Provinces Act. there is no definition of offence as available in the Punjab Act. Therefore, the decision in Kunwar Bahadurs case (supra) is not really material for our purpose.
11. Punishable carries a meaning liable to be punished as indicated by the three Judge Bench. Since the offence under Section 302 is punishable with death the provisions of the Punjab Borstal Act would not cover an offence under Section 302 of IPC and the benefit would not therefore, be available to an accused convicted for the offence under Section 302. IPC.
12. During the hearing of the matters learned counsel for the petitioners had maintained that the provisions of the Punjab Act should be suitably amended to bring about uniformity in the law on the subject. This is a matter for the State and the Legislature and it is for them to consider whether the provisions should be suitably amended keeping the modern concept of punishment and treatment of adolescents in view.
13. Each of the writ petitions is dismissed. There would be no order for costs.
Petitions dismissed.
For Citation : AIR 1988 SC 2235