In Re: Mala Chengadu

Bardswell, J.—One Mala Chengadu alias Peva Doss was bound over by the Joint Magistrate of Chandragiri, to be of good behaviour for

the space of one year with reference to Section 109, Clauses (a) and (b), Criminal P.C. He failed to give security and he was then ordered by the

Joint Magistrate to be detained in a Borstal School for a period of two years, his age being 20. Under the Madras Borstal Schools Act, the

minimum period for an adolescent offender to be ordered to be detained in a Borstal School is one of two years. Had Mala Ohengadu been

ordered u/s 123 Criminal P.C., to be committed to or detained in prison, he could only have been kept in prison for the space of one year, even if

he failed altogether to furnish security, that, being the period for good behaviour during which security had been ordered to be given by him. The

learned Sessions Judge raises the question whether it was legal to ''send him to a Borstal School for, two years; and he also questions whether the

committal of a person to prison u/s 123, Criminal P.C., amounts f to the passing upon him of a sentence of imprisonment. The doubt as to what is

the effect of an order passed u/s 123 is resolved by Proviso 2 to Section 397 of the Code, which refers to, eases where a person has been

sentenced to imprisonment by an order u/s 123, in default of furnishing security. Therefore it is clear that by the express terms of the Code action

u/s 123 amounts to sentencing a person to imprisonment.

Now, u/s 2, Madras Borstal Schools Act 5 of 1926, an adolescent offender means any person who has been convicted of any offence

punishable with imprisonment or who, having been ordered to give security u/s 118, Criminal P.C. has failed to do so and who at the time of such

conviction or failure to give security is not less than 16 or more than 21 years of age. Section 8 of the Act defines the powers of a Court as to

sending an adolescent offender to a Borstal School in lieu of passing a term of imprisonment upon him; and Section 9 provides that any person

detained in a Borstal'' School for failure to furnish security when ordered to do so u/s 118, Criminal P.C. (1898), will be released on his furnishing

such security or on the passing of an order u/s 124. The learned Judge is doubtful whether the order passed upon Mala Chengadu could be taken

as one passed u/s 8, Borstal Schools Act. In view of what has been stated above as to what is meant by passing a sentence of imprisonment, it is

clear that Section 8 does apply. It also appears from Section 8 that an order of detention in a Borstal School is something different from sentencing

to imprisonment and that, even though the period for furnishing security is only one year, yet, when detention in a Borstal School is ordered instead

of, imprisonment, then that detention can only be for such period as it provided for in the Borstal Schools Act and the least period that Act

provides for is two years. In my opinion therefore the order of the Joint Magistrate is correct. The reference is returned.