Petitioners not entitled to benefit of C. Ezhumalais case (AIR 1985 SC 118)

Prabha Sridevan, J.

After the judgment in W.P.No.4674 of 2006 (P.Shanmuganathan Vs. The Secretary to Government, Home Department, Fort. St. George, Chennai and another) and the Full Bench judgment in 2008(1) MLJ Crl.832 (A.Thangammal Vs. State Rep. by Home Secretary, Government of Tamil Nadu), several Habeas Corpus Petiotions are filed alleging that a person who was an adolescent offender is held in illegal detention. We also find uniformly that in all these cases, the issue regarding the application of Tamil Nadu Borstal Schools Act hereinafter called the Borstal Schools Act) had not been raised at the time of trial nor in appeal before this Court and in some cases, nor even before the Supreme Court, after the appeals against the conviction had been dismissed by this Court or the Supreme Court, one day with the dawn of wisdom, these petitions are filed claiming that the detenus are entitled to come out as per the Borstal Schools Act and also claiming that they have attained age of 23 and that C.Elumalai Vs. State of Tamil Nadu reported in (AIR 1985 SC 118) will squarely apply to them.

2. We have heard Mr.Abudu Kumar Rajaratnam and Mr.Venkata Varadhan, the learned counsel appearing for the petitioners. Uniformly what is submitted by them is that, in W.P.No.4674 of 2007, this Court was pleased to apply the benefit to persons, who are at a pre-trial stage and therefore do not come under definition of "adolescent offender", as defined in the Borstal Schools Act. Therefore the petitioners deserve the same indulgence. According to them, the Memorandum No.44924/P.W.1./07 dated 22.10.2007, which had been issued by the Additional Director General of Prisons, Chennai, on legal advice, has been invoked in favour of many prisoners but the petitioners herein have not derived the benefit.

3. The Learned counsel for the petitioners submitted that in C. Elumalai Vs. State of Tamil Nadu, the Honble Supreme Court categorically stated that the State Government cannot keep any adolescent offender who is convicted of a capital offence but sentenced to imprisonment for life beyond the age of 23 years. The learned counsel also referred to the judgment in C.A.No.558 of 2007, where following 2000(II) CTC 123 (Ramasamy Vs State), the Court set at liberty the second appellant, who was treated as an adolescent offender.

4. In response the learned Public Prosecutor submitted that these habeas corpus petitions are not maintainable. Section 8 of the Tamil Nadu Borstal Schools Act, is not mandatory, but discretionary. The Court has the discretion to decide whether the adolescent offender should be sent to prison or in lieu of that they can be sent to Borstal School. When a person is kept in detention pursuant to a sentence by a Court which has jurisdiction, it is not illegal detention. The sentence may be set aside by the Higher Courts. But it is not illegal. A habeas corpus petition is not maintainable. The learned Public Prosecutor further submitted that not having raised this point all the way up to Supreme Court, they cannot be permitted to do so now.

5. The learned Public Prosecutor also posed the query that too with a great degree of justification as to what would happen if after a decade of incarceration, prisoners who are over 30 years of age come forward with this plea and say that at the time of conviction, they were entitled to the benefit of Borstal Schools Act.

6. The learned Public Prosecutor submitted that there could be a flood of requests by numerous persons claiming the same benefit. The learned Public Prosecutor also submitted that the State Government is seriously considering amendments to the Borstal Schools Act.

7. The definition of an "adolescent offender" is very clear and it reads as follows:

"Adolescent offender" means any person who has been convicted of any offence punishable with imprisonment or who having been ordered to give secutiry under Section 118 of the Code of Criminal :Procedure has failed to do so and wh