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