An Act to make provision for the establishment and regulation of Borstal Institutions in [Madhya Pradesh] and or the detention and training of adolescent offenders therein.
Preamble. Whereas it is expedient to make provision for the establishment and regulation of Borstal Institutions in [Madhya Pradesh]2 and for the detention and training of adolescent offenders therein; and whereas the previous sanction of the Governor-General under sub-section (3) of section 80A of the Government of India Act has been obtained to the passing of this Act;
It is hereby enacted as follows:
In this Act, unless there is anything repugnant in the subject or context,
(1) Borstal Institution means a place in which offenders may be detained under this Act and given such industrial training and other instruction and subjected to such disciplinary and moral influences as will conduce to their reformation;
(2) detained means detained in, and detention means detention in, a Borstal Institution;
(3) inmate means any person ordered to be detained;
(4) offence means
(i) an offence punishable with transportation or rigorous imprisonment under the Indian Penal Code (XLV of 1860) other than
(a) an offence punishable with death;
(b) an offence punishable under Chapter V-A, Chapter VI or section 153-A of the said Code;
(c) an offence committed in pursuance of political activities;
(ii) an offence punishable with imprisonment under Public Gambling Act, 1867 (III of 1867);
(iii) an offence punishable with imprisonment under the Opium Act, 1878 (I of 1878);
(iv) an offence punishable with imprisonment under the Central Provinces and Berar Excise Act, 1915 (II of 1915);
[(v) an offence punishable with imprisonmen under the Dangerous Drugs Act, 1930 (II of 1930)5;
(5) officer means an officer of a Borstal Institution appointed in such manner as may be prescribed;
(6) prescribed means prescribed by rules made by the Statd Government under the provisions of this Act;
(7) security for good behaviour means security for good behaviour otherwise than for political activities under section 109 or section 110 of the Criminal Procedure Code, 1898 (V of 1898)6;
(8) Superintendent means a Superintendent of a Borstal Institution appointed in such manner as may be prescribed.
(1) For the purposes of this Act the State Government may establish one or more Borstal Institutions.
(2) For every Borstal Institution the State Government shall appoint a Superintendent, and such other officers as may be necessary.
(3) For every Borstal Institution a visiting committee shall be appointed in such manner as may be prescribe and shall consist of not less than five members;[***]7
(1) When any male person not less than sixteen or more than twenty-one years of age is convicted of an offence by a Court of Session, a magistrate specially empowered under section 30 of the Code of Criminal Procedure, 1898 (V of 1898)11, or a magistrate of the first class and when by reason of his criminal habits; or tendencies or association with persons of bad character it is expedient, in the opinion of the Judge or magistrate, that he should be detained, such judge or magistrate may, in lieu of passing a sentence of transportation or imprisonment, pass an order of detention for a term which shall not be less than two years and shall not exceed five years when the order is passed by a Court of Sessions or a magistrate, specially empowered under section 30 of the Code of Criminal Procedure 1898 (V of 1898),12 and shall not be less than two years nor exceed three years when the order is passed by a magistrate of the first class not so empowered.
(2) When any magistrate, not empowered to pass such order, is of opinion that an offender convicted by him is a person in respect of whom such order should be passed in accordance with the provisions of sub-section (1), he shall, without passing any sentence, record such opinion and submit his proceedings and forward the accused to the District Magistrate or Sub-Divisional Magistrate to whom he is subordinate.
(3) The District Magistrate or Sub-Divisional Magistrate to whom the proceedings are so submitted may make such further enquiry (if any) as he may deem fit and pass such order for the detention of the offender or such other sentence or order, as he might have passed if the trial had been held by him from its commencement.
(1) When any male person not less than sixteen or more than twenty-one years of age has been ordered to give security for good behaviour and fails to give such security and when by reason of his criminal habits or tendencies or association with persons of bad character it is expedient, in the opinion of the magistrate, that he should be detained, the magistrate may issue a warrant directing such person to be detained in prison pending the orders of the Sessions Judge; and the proceedings shall be laid as soon as possible before the Sessions Judge.
(2) The Sessions Judge, after examining such proceedings and requiring from the magistrate any further information or evidence which he thinks necessary may pass an order of detention, for a term which shall not be less than two years and shall not exceed three years, or such other order as he thinks fit and as is according to law.
(3) If security has been required in the course of the same proceedings from two or more persons, in respect of any one of whom the proceedings are referred to the Sessions Judge under sub-section (1), such reference shall also include the case of any other such person, and the provisions of sub-sections (1) and (2) shall, in that event, apply to the case of such other person also.
(1) When any male person, not less than sixteen or more than twenty-one years of age, has been sentenced for an offence to rigorous imprisonment or transportation and when by reason of such person's criminal habits or tendencies or association with persons of bad character it is expedient, in the opinion of the District Magistrate, that he should be detained, the District Magistrate may order that such person shall, in lieu of under-going imprisonment or transportation, be detained for a period of two years or if the unexpired term of his sentence of transportation or imprisonment exceeds two years, for a period equal to the unexpired term;
Provided, however, that the period of detention shall in no case exceed live years.
(2) When any male person, not less than sixteen or more than twenty-one years of age, having been ordered to give security for good behaviour and having failed to give such security is imprisoned under sub-section (1) of section 123 of the Code of Criminal Procedure, 1898 (V of 1898)13, and when by reason of such person's criminal habits or tendencies or association with persons of bad character it is expedient, in the opinion of the District Magistrate, that he should be detained, the District Magistrate may order that the proceedings in his case shall be laid before the Sessions Judge and the provisions of sub-sections (2) and (3) of section 6 shall apply as if the proceedings has been referred under that section.
No order shall be made under the provisions of section 7
(i) until the time allowed by law for the prisoner to appeal has expired or if an appeal has been preferred until such appeal has been finally decided; or
(ii) if an application, made on appeal or otherwise to have the sentence altered into an order of detention, has been rejected by an appellate court or the High Court; or
(iii) in the case of any person who has been sent to a reformatory school in accordance with the provisions of the Reformatory Schools Act, 1897 (VIII of 1897).
(1) Subject to the provisions of sub-section (2) of this section, the provisions of the Code of Criminal Procedure, 1898 (V of 1898)14 relating to appeal, reference and revision, and articles 154 and 155 of the Indian Limitation Act, 1908 (IX of 1908),15 shall apply in the case of an order of detention passed under section 5 as if the order has been a sentence of imprisonment for the same period for which detention was ordered.
(2) Notwithstanding anything contained in section 423 of the Code of Criminal Procedure, 1898 (V of 1898),14 when a person who at the time of his conviction was less than twenty-one years of age has been convicted of an offence, or when such person on being ordered to furnish security for good behaviour has failed to furnish such security, an appellate court or the High Court, in the exercise of its powers of revision, may, in pursuance of sub-section (1) and the provisions of the Code of Criminal Procedure, 1898 (V of 1898),14 and after making such inquiry as it may deem fit, alter a sentence of imprisonment or an order of commitment to prison under section 123 of the Code of Criminal Procedure, 1893 (V of 1898),16 to an order of detention, if for reasons described in sub-section (1) of section 5, it considers such alteration expedient, and may alter an order of detention to a sentence of imprisonment or an order of commitment to prison under section 123 of the Code of Criminal Procedure, 1898 (V of 1898),16 as the case may be:
Provided that the sentence of imprisonment, order of commitment, or order of detention, shall not be in excess of the powers of the trial magistrate or court.
(3) Any person, who has been ordered to be detainee in a Borstal Institution under the provisions of section 7 for a period to expire after the term of imprisonment to which he was sentenced would expire, has the order not been passed, may, subject to the provisions of sub-section (5), appeal to the Sessions Judge, and the Session Judge may either confirm the order or set it aside and restore the sentence of imprisonment or if the order is for more than two years reduce it to a term not shorter than two years nor shorter than the residue of imprisonment to which the offender was sentenced.
(4) Any person ordered by a Sessions Judge under the provisions of sub-section (3), to be detained for a period to expire after the term of imprisonment to which he was sentenced would expire, had such order not been passed, may, subject to the provisions of sub-section (5), appeal within thirty days of the order to the High Court and the High Court may pass any such order as the Sessions Judge might have passed.
(5) An appeal shall not lie under sub-section (3) or sub-section (4) against a conviction or any finding of fact but only on the ground that the order appealed against is illegal, or unduly severe.
No person, who has been previously detained for the whole period prescribed in an order of detention or who has been transferred to jail under section 19 of this Act, shall again be ordered to be detained.
An person detained for failure to furnish security shall be released on furnishing such security.
(1) Before passing an order of detention under this Act, the magistrate, District Magistrate or court, as the case may be, shall enquire or cause enquiry to be made into the question of the age of the offender and after taking such evidence (if any) as may be deemed necessary or proper shall record a finding thereon.
(2) A similar enquiry shall be made and finding recorded by every magistrate not empowered to pass an order of detention under this Act before submitting his proceedings and forwarding the accused to the District Magistrate as required by sub-section (2) of section 5 of this Act.
(1) When any magistrate, District Magistrate or court orders an of lender 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.
(2) No order of detention shall be passed under sub-section (3) of section 5, section 6 or section 7 unless the person to be detained has had an opportunity either personally or by pleader of showing cause against such order being made.
Subject to any general or special directions of the State Government, the visiting committee with the sanction of the Inspector-General of Prisons may at any time after the expiration of one year of detention in the case of an inmate ordered to be detained for not more than three years and, in any other case, of two years of detention, if satisfied that the inmate is likely to abstain from crime, and lead a useful and industrious life, by licence permit him to be discharged from the Borstal Institution on condition that he be placed under the supervision or authority of any person or secular institution or religious society (professing the same religion as the inmate) named in the licence who may be willing to take charge of him. A licence granted under this section shall be in force until the term for which the inmate was ordered to be detained has expired unless sooner suspended, revoked or forfeited.
The time during which an inmate is absent under licence from a Borstal Institution shall be reckoned as part of the period of detention.
Every licence granted under the provisions of section 14 shall be in such form and shall contain such conditions as the State Government may, by general or special order, direct.
Subject to any general or special directions of the State Government, a licence granted under section 14 may be suspended for a period not exceeding three months by the Superintendent or revoked at any time by the visiting committee on the recommendation of the Inspector-General of Prisons. When the licence of any inmate has been suspended or revoked he shall return to the Borstal Institution and if he fails to do so he may be arrested without warrant and taken to the institution.
(1) If any inmate escapes from a Borstal Institution before the expiry of the period for which he was ordered to be detained, or if any inmate absent on licence from a Borstal Institution escapes from the supervision or authority of any [servant of the Government or any]17 secular institution or person or religious society in whose charge he was placed, or fails on the suspension or revocation of his licence to return to the Borstal Institution, he may, on conviction by a magistrate, be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both, or may be ordered to be detained, for a term which may extend to two years, in addition to the residue of detention, and his licence shall be forfeited with effect from the date of his escape or failure to return, as the case may be.
(2) An offence under this section shall be deemed to be a cognizable offence within the delinition of that term in the Code of Criminal Procedure, 1989 (V of 1898)18
When an inmate is reported to the State Government by the visiting committee to be incorrigible or to be exercising a bad influence on the other inmates of the institution or is sentenced to imprisonment under section 18 or section 22 of this Act, or is reported by the Superintendent to have committed an offence which has been declared to be a major Borstal Institution offence by rules made by the State Government in pursuance of the provisions of clause (14) of section 33 of this Act, the State Government may commute the residue of detention to such term of imprisonment of either description not exceeding such residue as the State Government may direct, and may order the transfer of the inmate to any jail in the [State]19 in order to complete the said term of imprisonment.
Inmates who have been appointed as officers shall be deemed to be public servants within the definition of that term in the Indian Penal Code, 1860 (XLV of 1860).
An inmate, when being taken to or from any Borstal Institution in which he may be lawfully detained, or whenever he is working outside or he is otherwise beyond the limit; of any such Borstal Institution, in or under the lawful custody or control of an officer belonging to such Borstal Institution, shall be deemed to be under detention and shall be subject to all the same incidents as if he were actually in a Borstal Institution.
Whoever, contrary to any rule under section 33, introduces or removes, or attempts by any means whenever to introduce or remove into or from any Borstal Institution, or supplies attempts to supply to any inmate outside the limits of such institution any prohibited article, and every officer of a Borstal Institution who, contrary to any such rule, knowingly surfers any such article to be introduced into or removed from any Borstal Institution, to be possessed by any inmate, or to be supplied to any inmate outside the limits of Borstal Institution.
and whoever, contrary to any such rule, communicates or attempts to communicate with any inmate.
and whoever abets any offence made punishable by this section, shall, on conviction before a magistrate, be liable to imprisonment of either description for a term not exceeding six months, or to fine not exceeding two hundred rupees, or to both.
When any person in the presence of any officer of a Borstal Institution, commits any offence specified in section 22, and refuses on demand of such offecer to state his name and residence, or gives a name or residence which such officer knows, or has reason to believe, to be false, such officer may arrest him, and shall without unnecessary delay make him over to a Police Officer, and thereupon such police officer shall proceed as if the offence had been committed in his presence.
The Superintendent shall cause to be affixed, in a conspicuous place outside the Borstal Institution, a notice in English and the vernacular setting forth the acts prohibited under section 22 and the penalties incurred by their commission.
The officer in charge of a Borstal Institution shall receive and detain any person duly committed to his custody under this Act according to the directions contained in the order by which such person has been committed or until such person is discharged or removed in due course of law.
The officer in charge of a Borstal Institution shall forthwith, after the execution of every such order as aforesaid or after the discharge of the person committed thereby, return such order to the Magistrate, District Magistrate or court by which the same was issued or made, together with a certificate, endorsed thereon and signed by him, showing how the same has been executed, or why the person committed thereby has been discharged from detention before the execution thereof.
20 The officer in charge of a Brostal Institution shall give effect to any order for the detention of any person passed or issued,
(a) by any court or tribunal in any [State or Union territory]21 [* * *]22
[(b) ***[23]
24[27-A. Powers of the State Government. (1) The [State]25 Government may, by general or special order, provide for the removal of any person ordered to be detained to any Borstal Institution or school in any other [State]26 with the consent of the Government of that [State]26.
(2) The [State]25 Government may likewise provide, by general or special order, for the detention in a Borstal Institution of any person from any Brostal Institution or school in any other [State.]26
(3) The provisions of this Act shall apply to any person detained in accordance with the provisions of sub-section (2) or of section 27.]
Any order under the official signature of an officer of, and under the seal of, such court or tribunal as is referred to in section 27, shall be sufficient authority for detaining any person, in pursuance of the order passed upon him.
(1) Where an officer in charge of a Borstal Institution doubts the legality of an order sent to him for execution or the competency of the person whose official seal or signature is affixed thereto to pass the order, he shall refer the matter to the State Government by whose order on the case he and all other public officers shall be guided as to the future disposal of the inmate.
(2) Pending reference made under sub-section (1), the inmate shall be detained in accordance with the order.
[(1) Where it appears to the State Government that any person detained under any order is of unsound mind, the State Government may order his removal to an asylum or other place of safe custody within the State, there to be kept and treated as the State Government directs, during the remainder of the term for which he has been ordered to be detained, or, if on the expiration of that term it is certified by a medical officer that it is necessary for the safety of the inmate or others that he should be further detained under medical care or treatment, then until he is discharged according to law.
(2) Where it appears to the State Government that an inmate so kept and treated has become of sound mind, the State Government shall, by a warrant directed to the person having charge of the inmate, if still liable to be detained, remand him to the Borstal Institution from which he was removed or to another Borstal Institution within the State, or, if he is no longer liable to be detained, order him to be discharged.]27
(3) The provisions of section 31 of the Indian Lunacy Act, 1912 (V of 1912), shall apply to every person confined in an asylum under sub-section (1) after the expiration of the term for which he was ordered to be detained; and the time during which an inmate is confined in an asylum under that sub-section shall be reckoned as part of the term of detention which he may have been ordered to undergo.
(4) In any case in which the State Government is competent under sub-section (1) to order the removal of an inmate to an asylum or other place of sale custody within the [State],28 the State Government may order the removal to any such asylum or place within any other [State]28 [* * *]29 by agreement with the State Government of such other [State]28 [* * *]30 and the provisions of this section respecting the custody, detention, remand and discharge of an inmate removed under sub-section (1) shall, so far as they can be made applicable, apply to an inmate removed under this sub-section.
Subject to the provisions of clause (13) of section 33 of this Act, the provisions of section 12 Chapter XI of the Prisons Act, 1894 (IX of 1394) and the Provisions of the Prisoners (Attendance in Courts) Act, 1955 (XXXII of 1955) shall apply as far as may be to Borstal Institutions established under this Act, and all references to prisoners, prison, imprisonment or confinement in section 12 and Chapter XI of the Prisons Act, 1894 (IX of 1894), and the provisions of the Prisoners (Attendance in Courts) Act, 1955 (XXXII of 1955) and the rules made thereunder shall be construed as referring to inmate, Borstal Institution and detention.]31
***]32
The State Government may make rules after previous publication consistent with this Act
(1) for the regualtion, management and classification of Borstal Institutions established under this Act, and the description and construction of words, cells and other places of detention;
(2) for the regulation by number or otherwise of the inmates to be detained in each class of institution;
(3) for defining the powers and duties of the Inspector General of Prisons;
(4) for the Government of Borstal Institution and the appointment, guidance, control, punishment and dismissal of Superintendents and other officers employed in Borstal Institutions and for the defining of their responsibilities, duties, disablities and powers;
(5) for the maintenance of records, and the preparation and submission of reports;
(6) for the selection and appointment of inmates as inmate officers and their punishment, reduction and dismissal and for defining the duties and powers of such officers;
(7) for the temporary detention of inmates until arrangements can be made for their admission to Borstal Institution;
(8) for the admission, removal and discharge of inmates, and for the disposal of their effects during their detention;
(9) for feeding, clothing and bedding of inmates;
(10) for the custody, discipline, grading, treatment, education, training and control of inmates;
(11) for the employment of inmates and the disposal of the proceeds of their labour;
(12) for the treatment of sick inmates;
(13) for defining the acts which shall constitute Borstal Institution offences;
(14) for determining the classification of Borstal Institution offences into major and minor offences;
(15) for fixing the punishments admissible under this Act which shall be awardable on commission of Borstal Institution offences or classes thereof;
(16) for declaring the circumstances in which acts constituting both a Borstal Institution offence and an offence under the Indian Penal Code (XLV of 1860) may or may not be dealt with as a Borstal Institution offence;
(17) for the award of marks and the shortening of periods of detention;
(18) for regulating the use of arms against any inmate or body of inmates and the use of fetters in the case of an dutbreak or attempt to escape;
(19) for defining the circumstances and regulating the conditions under which inmates in danger of death may be released;
(20) for regulating the transfer from one part of the whole of India [* *]33 to another of inmates whose terms of detention is about to expire;
(21) for defining articles the introduction or removal of which into or out of Borstal Institutions without due authority is prohibited;
(22) for the classification and the separation of inmates;
(23) for rewards for good conduct;
(24) for regulating the transfer of inmates from one Borstal Institution to another or to a hospital, or asylum, and from a Borstal Institution to a prison, or from a prison to a Borstal Institutions;
(25) for the treatment, transfer and disposal of criminal lunatics or recovered criminal lunatics confined in Borstal Institutions;
(26) for regulating the transmission of appeals and petitions from inmates and their communications with their relatives and friends;
(27) for the appointment and guidance of visitors of Borstal Institutions;
(28) for prescribing conditions on which licences may be granted, suspended, revoked or cancelled;
(29) for the appointment, powers, and control of parole officers;
(30) for defining the powers and duties of vising committees; and
(31) generally for all purposes consistent with this Act.
The State Government after giving by notification in the official Gazette not less than three months notice of its intention to do so, may, by like notification,
(1) direct that the provisions of sections 5, 6 and 7 shall, extend to persons not above such age, between twenty-one and twenty-three, as may be specified in the direction and upon such direction being notified the said sections shall, whilst the direction is in force, have effect as if the specified age were substituted for twenty-one .
(2) direct that the provisions of sections 5, 6 and 7 shall extend to females, and upon such direction being notified the said sections shall, whilst the direction is in force, have effect as if the word male were omitted.
***]34
***]35
36[27-A. Powers of the State Government. (1) The [State]37 Government may, by general or special order, provide for the removal of any person ordered to be detained to any Borstal Institution or school in any other [State]38 with the consent of the Government of that [State]38.
(2) The [State]37 Government may likewise provide, by general or special order, for the detention in a Borstal Institution of any person from any Brostal Institution or school in any other [State.]38
(3) The provisions of this Act shall apply to any person detained in accordance with the provisions of sub-section (2) or of section 27.]
1. For Statement of Objects and Reasons, and Report of the Select Committee, See Central Provinces; Gazette, dated the 19th February, 1927 and 6th August, 1927, Part VII, pages 20 and 38, respectively. For discussion, See Central Provinces Legislative Council Proceedings, dated the 4th March, 1927, 1st March, 1928 and 2nd March, 1928, pages 99 and 100, 31 to 46 and 87 and 88, respectively.
2. Subs. by M.P. Act 23 of 1958, S. 3. (4), for Central Provinces and Berar .
3. Subs. by M.P. Act 23 of 1958, S. 3. (4), for Central Provinces and Berar .
4. Subs. by M.P. Act 23 of 1958, S. 3(3), Schedule, Part A, item 22, for sub-sections (2) and (3).
5. Ins by C.P. Act, 11 of 1937, S. 2.
6. See now the Code of Criminal Procedure, 1973 (2 of 1974).
7. Words of whom not less than three shall be Indians omitted by A.O. 1950.
8. Subs. by A.O. 1937.
9. Subs. by A.O. 1950, for either chamber of the Central Legislature. .
10. Subs. by M.P. Act 23 of 1958 S. 3(3), Schedule, Part A, item 22, for Mahakoshal region .
11. See now the Code of Criminal Procedure, 1974 (2 of 1974).
12. See now the Code of Criminal Procedure, 1973 (2 of 1974).
13. See now the Code of Criminal Procedure, 1973 (2 of 1974).
14. See now the Code of Criminal Procedure, 1973 (2 of 1974).
15. See now Limitation Act, 1963 (36 of 1963).
16. See now the Code of Criminal Procedure, 1973 (2 of 1974).
17. Subs. by A.O. 1837, for Government officer or. .
18. See now the Code of Criminal Procedure, 1973 (2 of 1974).
19. Subs. by A.O. 1950, for Province .
20. Sub-by A.O. 1950.
21. Subs. by M.P.A.O. 1956 for Part A state or part C state .
22. Word or omitted by M.P. Act 23 of 1958 S. 3(3) Schedule, part-A, item-22.
23. Clause (b) omitted, ibid.
24. Ins by C.P. and Berar Act 14 of 1942, S. 2.
25. Subs. by A.O. 1950, for Provincial .
26. Subs., ibid, for province .
27. Subs. by M.P. Act 11 of 1968, S. 2.
28. Subs. by A.O. 1950, for Province .
29. Words or within the territories of any Indian Prince or State, omitted, ibid.
30. Words or with such Indian Prince or State, as the case may be omitted, ibid.
31. Subs. by M.P. Act 11 of 1968, S. 3.
32. Omitted by S. 4, idib.
33. Words except states , omitted by M.P. Act 23 of 1958, S. 3(1), Schedule, Part-A, item 22.
34. Omitted by M.P. Act 11 of 1968, S. 4.
35. Omitted by M.P. Act 11 of 1968, S. 4.
36. Ins by C.P. and Berar Act 14 of 1942, S. 2.
37. Subs. by A.O. 1950, for Provincial .
38. Subs., ibid, for province .