The State vs Dharam Pal

Khanna, J.—This is a revision filed by the State of Punjab for the modification of the order of learned Sessions Judge, Ludhiana, whereby Dharampal Respondent has been ordered to be detained in the Reformatory School, Hissar, for a period of three years.

The brief facts giving rise to the present revision petition are that Mohan Lal and Dharampal were tried in the Court of learned Sessions Judge, Ludhiana, u/s 302, read with Section 34, Indian Penal Code, in connection with the murder of one Kashmiri Lal. Dharampal was also charged u/s 324, Indian Penal Code, for causing hurt to one Brij Mohan. The learned Sessions Judge convicted Mohan Lal u/s 302, Indian Penal Code, and sentenced him to imprisonment for life. Dharampal was acquitted of the charge u/s 302, read with Section 34, Indian Penal Code. He was. however, convicted u/s 324, Indian Penal Code, for causing an injury with a knife to Brij Mohan and was sentenced to undergo rigorous imprisonment for a period of one year. As Dharampal was aged fourteen-and-a-half years, the learned Sessions Judge ordered, u/s 8 of the Reformatory Schools Act, 1897 (Act No. 8 of 1867 that Dharampal be sent to Reformatory School, Hissar. and be detained there for a period of three years. The prayer of the State of Punjab in revision is that the learned Sessions Judge should have ordered the detention of Dharampal Respondent in the Reformatory School till he attained the age of eighteen years.

I have heard Mr. Jagga on behalf of the State and am of the view that no case has been made out for interference with the older of the learned Sessions Judge. Clause (a) of Section 4 of the Reformatory Schools Act (hereinafter referred to as the Act) defines the expression "youthful offender" as meaning any boy who has been convicted of any offence punishable with transportation or imprisonment and who, at the time of such conviction, was under the age of fifteen years. Section 8 of the Act, which has a bearing on the matters, reads as under:

Power of Courts to direct youthful offenders to be sent to Reformatory Schools-

(1) Whenever any youthful offender is sentenced to transportation or imprisonment and is, in the judgment of the Court by which he is sentenced, a proper person to be an inmate of a Reformatory School, the Court may, subject to any rules made by the State Government, direct that, instead of undergoing his sentence, he shall be sent to such a school, and be there detained for a period which shall be not less than three or more than seven years.

(2) The powers so conferred on the Court by this section shall be exercised only by (a) the High Court, (b) a Court of Session, (c) a District Magistrate, and (d) any Magistrate specially empowered by the State Government in this behalf; any may be exercised by such Courts whether the case comes before them originally or on appeal.

(3) The State Government may make rules for -

(a) defining what youthful offenders should be sent to Reformatory Schools having regard to the nature of their offences or other considerations, and

(b) regulating the periods for which youthful offenders maybe sent to such schools according to their ages or other considerations.

above provision of law authorises a High Court, a Court of Session, a District Magistrate and a Magistrate Specially empowered in this behalf to direct. when a youthful offender is sentenced to transportation or imprisonment and is in the opinion of the Court by which he is sentenced a proper person to be an inmate of a Reformatory School, that instead of undergoing the sentence he shall be sent to a Reformatory School and be detained there for a period which shall not be less than three years or more than seven years. The learned Sessions Judge, in the present case, ordered Dharampal Respondent to be detained for a period of three years in the Reformatory School. The requirement of the section, that the period of detention shall not be less than three years or more than seven years, is in the circumstances complied with. The contention of Mr. Jagga, however, is that it is expressly stated in Sub-section (1) of Section 8, rerpoduced above, that the power of ordering detention is to be exercised subject to any rules made by the State Government. Mr. Jagga has in this context referred to Rule 3 of the Rules framed under Sub-section (3) of Section 8 of the Act. Rule 3 is to the following effect-

Every youthful offender sent to a Reformatory School who is found by the Magistrate to be thirteen years of age at the time of his conviction shall be sent to the school for a period that will expire on his attaining the age of eighteen.

Tuesday, February 28, 2012 It is urged by Mr. Jagga that the above rule contemplates that the period of detention for which a youthful offender is ordered to be detained should be such as would expire on his attaining the age of eighteen. In my opinion, Rule 3 is not of much assistance to the Petitioner in the present case because this rule deals with a youthful offender sent to Reformatory School who is found by the Magistrate to be thirteen years of age or more at the time of his conviction. The above rule apparently relates to youthful offenders who are convicted by Magistrates and, so far as Magistrates are concerned, it has been enjoined upon them that when ordering detention of youthful offenders they should see to it that the period of detention would expire on their attaining the age of eighteen. There is, however, no such limitation in the above rule upon the powers of a High Court or the Court of Session, The rule making authority was conscious of the fact that there is a distinction between a Magistrate and a Court because while in Rule 1 there is reference to a "Magistrate or a Court", in Rule 3 the reference is only to a "Magistrate." Likewise in Sections 11, 12, 15 and 16 of the Act the reference is to a Court or Magistrate. Although a Magistrate can be included within the definition of the word "Court" a Sessions Judge can by no stretch of reasoning be covered by the word "Magistrate". I would, therefore, hold that the limitation imposed by Rule 3 applies in the case of detention order made by a Magistrate and not those made by the Sessions Courts which for the purpose of deciding the period of detention are governed by the provisions of Section 8 of the Act.

The revision petition accordingly fails and is dismissed.