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Criminal Appeal No. 100 of 1959, decided on 23rd October 1959.
S. 5‑To be construed liberally‑Criminal appeal‑Delay in filing, should be excuse w ere no valuable right accrues to opposite party.
Section 5 of the Limitation Act, 1908 should be liberally construed so as to advance substantial justice. Where the appellant, a boy of 12 who was not expected to know that the appeal should have been filed within sixty days from the order convicting him under section 380, Penal Code, filed the appeal against the order 56 days beyond the time prescribed for filing of criminal appeal the High Court condoned the delay.
The delay in filing a criminal appeal in cases of this nature should ordinarily be excused under section 5 of the Limitation Act, 1908 because no valuable right accrues to the opposite party.
S. 14 ‑Court to record grounds for detaining accused in Borstal Institution.
Casual offenders, other than those con victed of heinous crime normally to be released on probation of good conduct or after admonition‑Criminal Procedure Code (V of 1898), S. 562‑High Court Rules and Orders (Lahore) Vol. III, Ch. 22‑D, para. 2.
In dealing with Juvenile offender a Magistrate has the following alternatives before him. He may order :‑
(a) Whipping ;
(b) Fine ;
(c) Security under section 562 of the Criminal Procedure Code, 1898 ;
(d) Treatment under section 31 of the Reformatory Schools Act which is similar to (c) ;
(e) Detention in a Reformatory School ; and
(f) Transportation or imprisonment.
Before any of these alternatives is adopted, the Magistrate should seriously take into consideration all the relevant factors in the case. If the juvenile is not convicted of murder or any other flagrant offence and does not show any marked criminal tendencies, the Magistrate should make free use of section 562 of the Criminal Procedure Code, 1898, if it is otherwise applicable and should refrain from sending boys of tender age to the Borstal Institution or the Reformatory School. Boys of the age of about 12 years are out of place in the Borstal Institution because if they are sent there, they are likely to wise up with offenders upto the age of 21 years, which is not desirable.
Should be proportionate to the nature and gravity of crime.
Appellant present in person under police escort.
R. A. Jermey and A. G. for Respondent.
Dates of hearing : 20th and 23rd October 1959.
This is a jail appeal by Abdul Waheed, a boy aged 12 years who was convicted under section 380, P. P. C. by Mirza Azam Beg, section 30 Magistrate, Lahore, by his order dated the 5th of August 1958, and was ordered to be detained in the Borstal Institution Reformatory at Lahore for a period of seven years. He was tried along with Muhammad Ishaq who was convicted under section 411 read with section 75, P. P. C. and was sentenced to undergo one year's rigorous imprisonment.
2. In its outline the case for the prosecution was that Ch. Muhammad Akbar Khan of Sargodha (P. W. 1) had come to Lahore on the 22nd of May 1958 and was putting up tem porarily in a house at 8‑B, Shah Alam Market, Lahore, in connec tion with the treatment of his younger brother who had been admitted as an indoor patient in the Mayo Hospital, Lahore. He had the revolver Exh. P. 1 and eight cartridges Exh. P. 2 with him which he had placed in his suit case. He remained here for about four days. On the 26th of May 1958, his brother was discharged from the hospital and when he was preparing himself to go back to Sargodha, he discovered that the revolver and the cartridges had been stolen in the meantime. He reported the matter to the police. Abdul Waheed accused was arrested by the police and he gave the information to the police that after committing the theft of the revolver and the cartridges he had passed on the revolver and the cartridges to Muhammad Ishaq accused. The latter led the police to a place near the Corporation School and produced the revolver Exh. P. 1 and cartridges Exh. P. 2 from under the bushes. After investigation both the accused were sent up for trial. In his statement made at the trial, Abdul Waheed accused admitted having stolen the revolver and the cartridges from the house in question. In view of his confession the learned Magis trate convicted him under section 380 P. P. C. and ordered him to be detained in the Borstal Institution Reformatory for a period of seven years. But it is not clear under which provision of law, this order was passed. The judgment is silent on the point. However I presume that the order was passed under section 5 of the Punjab Borstal Act.
3. Before I consider this appeal on its merits, it is necessary to decide whether the delay in filing this appeal should be con doned. From the office note it appears that this appeal is barred by limitation by 56 days. Section 3 of the Limitation Act, which is mandatory, provides that subject to the provisions con tained in sections 4 to 25 every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence. The limitation for filing a criminal appeal in the High Court is sixty days as provided by Article 155 of the First Schedule. Section 5 of the Limitation Act however empowers the Court to admit an appeal after the period of limitation prescribed therefore, if the appellant satisfies the Court that he had sufficient cause for not preferring the appeal earlier. In the present case, th6 appellant who is a boy of 12 was not expected to know that the appeal should have been filed within sixty days from the date of the order. Besides, he was undergoing detention in the Borstal Institution, and had no free action In my opinion, section 5 should be liberally construed so as to advance substantial Justice‑The delay in filing a criminal appeal should ordinary be excused under section 5 of the Limitation Act in a case of this nature, because no valuable right accrues to the opposite party. The State, I believe, would always welcome that justice should be done in the case. For the aforesaid reasons I condone the delay in filing this appeal after the period of limitation prescribed therefore.
4. On merits, there can be no doubt that the accused bad committed an offence under section 380, P. P. C. In his statement made at the trial, he had unequivocally admitted that he had stolen the revolver and the cartridges from the house in question. There is nothing on the record to suggest that he had made this statement under coercion or that he had been induced by anyone to make this statement. In my opinion, the statement was made by the accused on his own free will and was true. I accordingly uphold his conviction under section 380, P. P. C. He was charged only under section 411, P. P. C., but in view of the provisions of sections 236 and 237 of the Code of Criminal Procedure, he could be convicted under section 380, P. P. C.
5. As regards the question whether the appellant should have been ordered to be detained in the Borstal Institution for a period of seven years, I think it is necessary to refer to the relevant provisions of law. Section 5 of the Punjab Borstal Act (XI of 192,6) empowers all Sessions Judges, section 30 Magistrates, and Magistrates of the 1st Class to pass orders detaining prisoners below the age of 21 years in the Borstal Institution for a term not less than two years, instead of sentencing them to imprisonment. But before such an action is taken the Court must be satisfied that it is expedient to detain the offender in view of his criminal habits or tendencies or associations with persons of bad character. Section 14 of the Act provides that when any Magistrate, District Magistrate, or Court orders to be detained, he or it, as the case may be, shall record the grounds of his or its opinion that it is expedient that the offender be detained. Rule 4 (1) of the Punjab Borstal Rules, lays down that there shall be two sections of a Borstal Institution namely :‑
(a) For the detention of habitual adolescent offenders, with definite criminal tendencies ; and
(b) For the detention of habitual post‑adolescent offenders with definite criminal tendencies.
It will thus be seen that the Punjab Borstal Act provides a special kind of treatment for a particular class of offenders, namely, the adolescent convicts of habitual type.
6. In dealing with a juvenile offender, a Magistrate has the following alternatives before him. He may order :‑
(a) Whipping;
(b) Fine ;
(c) security under section 62 of the Code of Criminal Procedure ;
(d) Treatment under section 31 of the Reformatory Schools Act which is similar to (c) ;
(e) detention in a Reformatory School ; and
(f) Transportation or imprisonment.
Before any of these alternatives is adopted, the Magistrate should seriously take into consideration all the relevant factors in the case. If the juvenile is not convicted of murder or any other flagrant offence and does not show any marked criminal tendencies the Magistrate should make free use of section 562 of the Code of Criminal Procedure, if it is otherwise applicable and should refrain from sending boys of tender age to the Borstal Institution or the Reformatory School.
7. In the present case the learned Magistrate did not give any reasons for ordering the detention of the boy in the Borstal Institution, nor did he give any finding that it was expedient to detain the boy in the Borstal Institution by reason of his criminal habits, or tendencies, or associations with persons of bad character. The boy is not a previous convict and there is nothing to show that he has marked criminal propensities. The fact that he did commit this offence will bring him in the category of a casual offender. He did not commit any heinous crime. Para. 2 of Chapter 22‑D of the Rules and Orders of the High Court of Judicature, Volume III, provides as follows:‑
" Speaking broadly the types, of course, overlap‑there are three categories of young offenders for whom provision has to be made :‑
(a) Casual offenders, other than those convicted of heinous crime.
(b) Juveniles sentenced for offences of a comparatively minor character, but who are former convicts or are otherwise known to be tending towards a life of crime.
(c) Juveniles sentenced for murder and other flagrant offences.
Juvenile offenders of type (a) should normally be released on probation of good conduct or after admonition. In more serious cases where such treatment appears unsuitable there will perhaps be a sentence of whipping or fine.
There remains type (b). It is for this class of convicts that the Borstal Institution is intended."
Para. 5 of the same Chapter, inter alia, provides‑--
" Cases sometimes occur in which it is necessary to sentence boys of only ten or twelve years of age to imprisonment. In such cases the Reformatory School is always to be preferred children of this age would be quite out of place in the Borstal Institution.
Here I wish to point out that in a Reformatory School only juvenile offenders, i.e., offenders who are under the age of 15 years at the time of the conviction, are admitted, whereas in the Borstal Institution persons up to the age of 21 years are admitted, and that is why boys of the age of about 12 years are D out of place in the Borstal Institution because if they are sent there, they are likely to mix up with offenders up to the age of 21 years, which is not desirable.
8. For the reasons stated above, I do not think that this was a case in which the order of detention in a Borstal Institution should have been passed at all, much less for .a period of seven years. The penalties of crimes should conform, so far as possible, to a reasonable standard. I have not been able to discover the criterion on the basis of which detention for seven years was ordered. To detain a boy of 12 for a period of seven years for an offence of this nature was wholly unjustified. It is an elementary principle of criminal jurisprudence that the sentence in a case should be proportionate to the nature and gravity of the crime. In my opinion, it was a fit case in which the learned Magistrate should have taken action under section 562 (I) of the Code of Criminal Procedure and should have released the boy on probation of good conduct. I would have adopted this course but for the fact that by now the appellant has already undergone fourteen months' detention in the Borstal Institution. In the circumstances of the case I think the ends of justice will be sufficiently met if, having regard to the provisions of section 562 (1‑A) of the Code of Criminal Procedure, the appellant is released after due admonition. I think that this is more than sufficient punishment for what after all must be considered to be a thoughtless act of the appellant. Having the order of detention for seven years, hanging over him, and watching time trickle down through the squares of the calendar for these fourteen months must have been a harrowing experience for little Abdul Waheed. The boy has appeared before me and I have duly admonished him. I accordingly direct that he be released forthwith.
K.B.A./A.H. Order accordingly.
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