In Re: Sellappa Goundan

The respondent here was charged in the Lower Court with having murdered one Palani Goundan on the 28th June last by hitting him on the

head with the handle of an axe. The facts of the case need not be stated and it is sufficient to say that the respondent appears to have lost his

temper at the interference of the deceased in his quarrel with P.W. 3 and to have acted in the manner described. The learned Sessions Judge

convicted him of an offence u/s 304, latter part, holding that there was no intention on the part of the respondent to cause the death of the

deceased man and ordered him to be detained in the Borstal School at Palamcottah for five years. He did so because he found that the respondent

was an adolescent offender within the meaning of Section 2 of the Madras Borstal Schools Act (V of 1926). It is quite clear that in the opinion of

the doctor who was examined as a Court witness the respondent who gave his age as 15 was about 20 years old and certainly more than 18. The

learned Sessions Judge agreed with the view of the Public Prosecutor of Coimbatore that this was a fit case for action under the Borstal Schools

Act. He has, however, overlooked the fact that before the provisions of that Act can be applied the conditions of Section 8 of that Act must be

satisfied, that is to say, that it must appear to the Court that the adolescent offender should, by reason of his criminal habits or tendencies or

association with persons of bad character, be subject to detention in a Borstal institution instead of having a sentence of imprisonment passed upon

him, provided that before passing such sentence the Court shall consider any report or representation which may be made to it as to the suitability

of the case for treatment in a Borstal School and be satisfied that the character, state of health and mental condition of the offender are such that

the offender is likely to profit by such instruction and discipline. It is clear that the requisites are that the adolescent offender should be addicted to

criminal habits or tendencies or be associated with persons of bad character; and if he satisfies those requirements and if he is a person who is

likely to benefit by detention in a Borstal institution then he may be sent to any one of the institutions. The view, taken in the Lower Court seems to

be that the only qualification necessary is for the offender to be adolescent within the provisions of the Madras Borstal Schools Act. That is not

sufficient. He must come within the other qualifications and there is no finding here by the learned Sessions Judge nor is there any evidence to show

that the respondent was a person addicted to criminal habits or was associated with persons of bad character. That being so, the order passed

upon him was not the correct order. We have looked at the Prevention of Crimes Act, 1908, the English Act which authorises a sentence of

detention in Borstal institutions and also the Criminal Justice Administration Act of 1914, Section 10, which enables Courts of summary jurisdiction

to send youthful delinquents to Borstal institutions. It seems quite clear to us that the scheme of those Acts is to deal only with young offenders who

have been previously convicted or who are shown to have criminal tendencies or to be associated with criminal persons. The wording of the

former is the same as the Madras Borstal Schools Act and we think that exactly the same considerations apply here. Under these circumstances

the order of the learned Sessions Judge was clearly wrong and we have therefore to substitute for his order our own sentence. The act committed

was one as the learned Sessions Judge finds without premeditation. The offender is a young man and we think that the justice of the case will be

met by sentencing him to rigorous imprisonment for three years. We accordingly set aside the order in the Lower Court with regard to sentence

and substitute therefor a sentence of three years'' rigorous imprisonment.