B. RAJENDRAN & P.N. PRAKASH, JJ.

This Special Bench has been constituted to untie the Gordian knot and answer the following questions which arose under the Tamil Nadu Borstal Schools Act, 1925 (for brevity “the Borstal Schools Act”).

PART - I

(Referred by a 3 Judge Bench comprising A.Selvam, B.Rajendran & P.N.Prakash JJ.)

1. Whether a Court is empowered to act under Section 8 of the Tamil Nadu Borstal Schools Act only upon arriving at a finding of conviction?

2. Whether the term “imprisonment” in Section 8 of the Tamil Nadu Borstal Schools Act, would include “imprisonment for life”?

3. Whether the decision rendered by the Full Bench of this Court in K. Thangammal vs. State, (2008) 1 MLJ (Crl.) 832 requires to be re-considered in view of the decision of the Hon'ble Supreme Court in the case of Kamalanantha and others vs. State of Tamil Nadu reported in (2005) 5 SCC 194?

PART – II

(Referred by P.N. Prakash, J.)

1. Whether the Tamil Nadu Borstal Schools Act, 1925 casts a duty upon the Court to examine whether an adolescent offender, who is convicted, would be entitled to the benefits of the Act?

2. Would the failure of the Court to examine this aspect at the time of conviction and sentence, give a vested right to the offender to claim the benefits retrospectively, even after crossing the age of 21 years, either before the Appellate Court or before HCP jurisdiction or under Section 10-A of the Act before the Government?

3. Whether under-trial prisoners will be entitled to the benefits of the Tamil Nadu Borstal Schools Act, 1925?

2. Before venturing to answer the aforesaid questions under reference, it may be apposite to trace the circumstances under which the aforesaid references were laid before us.

3. The bone of contention is the interpretation of the expression “sentence of imprisonment” occurring in Section 8 of the Borstal Schools Act qua the expression “imprisonment for life” in Section 53 of the Indian Penal Code.

4. In P. Shanmuganathan vs. Secretary to Government, Home Department, Chennai and another, (2007) 1 MLJ (Crl.) 775), (for short “Shanmuganathan's case”) a public interest litigation was entertained by a Division Bench of this Court (F.M. Ibrahim Kalifulla and K. Venkataraman, JJ.) and a direction was issued to the jail authorities to detain all adolescent remand prisoners in borstal schools and not to remand them to the regular prisons. Pursuant to the said decision, the Government of Tamil Nadu issued G.O.(D) No.922, Home (Prisons IV) Department dated 12.08.2008 under Section 3(1) of the Prisons Act and under Section 3(1) of the Borstal Schools Act and declared the sub jails in various districts of the State as borstal schools for the purpose of keeping adolescent remand prisoners. A circular was also issued by the Registry of this Court to all the Magistrates in the State, calling upon them, not to remand adolescent prisoners to the regular jails, but, to remand them to the sub jails that were declared as borstal schools by the aforesaid Government Order.

5. In Ramasamy vs. State, 2000 1 L.W. (Crl.) 142, (for brevity “Ramasamy's case”), a Division Bench of this Court (N. Dhinakar and K.Natarajan,JJ.) held that if an adolescent offender is convicted for imprisonment for life, he cannot be sent to jail and that he has to be released in terms of Section 10-A of the Borstal Schools Act. So holding, the Division Bench confirmed the conviction of the accused, but, quashed the sentence and set him at liberty. The relevant paragraph of the said judgment reads thus:

“15. Learned counsel appearing for the appellant/accused contends that the learned Sessions Judge was not justified in sentencing the accused to imprisonment for life since admittedly, the accused was an adolescent offender at the time of incident and also on the date of conviction, since he was below 21 years of age. According to him, under Section 10-A of the