THE UNITED PROVINCES BORSTAL ACT , 1938 1

U.P. Act No. VII or 1938

 

An Act to make provision for the establishment and regulation of Borstal

Institution in the United Provinces and for the detention and

Training of abolishment .

 

Whereas it is expedient to make provision for the establishment and regulation of Borstal Institution in the United Provinces and for the detention and training of adolescent offenders therein; in is hereby enacted as follows.

  1. 1.       Short title, extent and commencement. - (1) This Act may be called the [Uttar Pradesh]1 Borstal Act, 1938.
  2. 2.       It extends to  the whole of [Uttar Pradesh]1
  3. 3.       It shall come into force on such date2  as the [State Government]2 may by notification appoint in this behalf.

2. Definitions – 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 disciplinary and moral influences as will conduce to their reformation ;

               (2) “Detained” means any person ordered to be detained;

               (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 other than-

                       (a) an offence punishable with death;

                        (b) an offence punishable under Chapter V-A or chapter VI of the said Code;

                (ii)an offence publishable with imprisonment under the Public Gambling Act, 1867, the Opium Act, 1878 or the [Uttar Pradesh]1 Excise Act, 1914 ;

(5)”Officer” means and officer of a Borstal Institution appointed in such manner a may be prescribed;

(6) “Prescribed” means prescribed by rules made by the [State Government ]3 under this Act;

(7) “Security for good behavior” means security for good behavior taken under Section 109 or Section 110 of the Code of a Criminal Procedure 1898 ;

(8) “Superintendent” means Superintendent of a borstal Institution appointed in such manner as may be prescribed.

 

3. Establishment of Borstal Institution - For the purpose of this Act the [State Government ]3 may establish one or more borstal Institutions.

 

4. Appointment of Director of borstal Instructions, officer and vesting committee. - (1) The [State Government ]3 shall borstal Institutions.

Director of barstal Institutions who shall exercise  subject to order of the [State Government]3a, general control and superintended of all Borstal Institutions.

 

 

 

 

1.[Received the assent of the Governor General on December 13, 1938, and was   published in Gazette 1938, Pt VII, 269- under Section 76 of the Government of India Act, 1935, on December 31, on December 31, 1938.

(2)For every borstal Institution the [State Government ]4 shall appoint a superintendent, and  such other officers as may be necessary.

(3) For every barstool Institution visiting committees shall be appointed in appointed a superintendent, and such manner as may be prescribed.

 

5.            Prowers off Courts to pass a sentence of detention a borstal Institution in the case of a convict under twenty one years of age is convicted of an offence by a Court of Sessions, or a magistrate of the first class, or is ordered by sub count or magistrate to give security offer good behavioour 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 such court or magistrate, that he should be detained, such court or magistrate may, in lieu of passing a sentence or transportation or rigorous imprisonment , pas an order of detention for a term which shall no be less than two years or more than five years term which shall no be less than two years or more than five years when the order is passed by a Court of Sessions, and shall not be less than tow years or more than three year when the order is passed by a inagistrate :

               Provided that the [State Government ]4 may by rule declare that persons belonging to such criminal tribes as may be prescribed shall not be eligible to be detained, and no person belonging to any such class shall be ordered to be detained.

(2) When action may not be taken under Section 7. - Not order shall be made under the provision of Section 7-

               (i) until the time allowed by law for appeal against the sentence or order under which         the prisoner is committed to or confined in prison, 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; or

               (iv) if the unexpired term of the transportation or imprisonment to which the prisoner was sentenced, or of the period for which security was required form him is less than one years.

 

9. Application of the Code of Criminal Procedure, 1898, and the Indian Limitation Act, 1908 and provisions of appeal and revision – (1) Subject to the provisions of sub-section (2) of this section the provisions of the Code of Criminal Procedure, 1998, relating to appeal, reference and revision and Articles 154 and 155 of the Indian Limitation Act, 1908, shall apply in the case of an order of detention as if the order had been a sentence of imprisonment for the same period as the period for which detention was ordered.

(2) Notwithstanding anything contained in Section 423 of the Code of Criminal Procedure, 1998, when a person who at the time of his conviction was not less than fifteen or more or than twenty one years of age has been convicted of an offence or when such person, on being ordered to furnish security for good behavior, has failed to furnish such security, an Appellate Court of 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, 1998, 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 or Criminal Procedure 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, 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 detained in a brutal Institution under the provisions of Section 6 for a period to expire after the term of imprisonment to which he was sentenced would expire had the order not been passed, may subject to the provision of sub-section (5) appeal to the Court of Sessions, and such court may either confirm the order or set it aside and restore the sentence of imprisonment or it the order is for more than tow years, reduce it to a term not shorter than the residue of imprisonment to which the offender was sentenced.

(4) Any person ordered by a Court of Sessions under the provisions of sub-section (3) to be detained for a period to expire after the term of imprisonment to which the which he was sentenced would expire had such order not been passed may, subject to 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 Court might have passed.

 

(5) An appeal shall not lie under sub-section (3) or sub section (4) against any finding or fact but only on the ground that the order appealed against is illegal, or unduly severe.

 

10. No person who has been detained to be detained again- No person who has been previously detained for the shoal period prescribed in an order of detention or show has been transferred to prison under Section 19 of this Act, shall again be ordered to be detained.

 

11. Release on furnishing security – Any person detained for failure to furnish security shall be released on furnishing security.

 

12. Inquiry to be made regarding the age of the offender before the passing of an order of detention – (1) Before passing an order of detention under this Act the magistrate, district magistrate or court, as the case may be, shall inquire, or cause inquiry to 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 recorded a finding thereon.

 

(2) A similar inquiry shall be made and finding recorded by every magistrate not empowered to pas 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.

13.Magistrate to give grounds of his opinion before ordering detention- When any magistrate, district magistrate or court of Sessions orders an offender to be detained, he or it, as the case may be, shall record the ground to his or its opinion that it is expedient that the offender be detained.

 

13.A Detention for the first time not to be regarded as a disqualification – The detention of a person in a Borstal Institution for the first time under the provisions of this Act shall not be regarded as a conviction for the purposes of any disqualification attaching to a conviction for any offence.

 

14. Power to release on licence.-  Subject to any general or special directions of the [State Government]5 the Visiting Committee with the sanction of the Director of the borstal Institutions, may at any time after the expiration of six month , or in case of females, three months form the commencement of the term of detention, if satisfied that the inmate is likely to aborting form crime, and to 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 such servant of the he be placed under the supervision or authority of such servant of the 6[Government] or such secular institution or such person or religious society belonging to 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 immate was ordered to be detained has expired unless sooner suspended, revoked or forfeited,

15. Absence under licence to be counted towards period or detention – the time during which an inmate is absent form a borstal Institution of a licence granted under Section 14 shall be reckoned as part of the period of detention.

 

16. Form of licence – Every licence granted under the provisions of Section 14 shall be in  such form and shall contain such condition as the period of detention.

 

17. Suspension and revocation of licence.- Subject to may general or special directions of the [State Government]5 a licence granted under Section 14 may be suspended for a period no exceeding three months by the Superintendent of a Borstal Institution or maybe suspended or revoked at any time by the Visiting Committee. Where 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 reverted without warrant and taken to the Institution.

 

18. Penalty for escape.- If any inmate escapes form a Borstal Institution before the expiry of the period for which he was ordered to be detained or if any inmate absent on licence form a Borstal Institution escapes from the supervision or person or religious society in whole charge he was placed, or fails on the suspension or revocation of his licence to return to the barstool Institution he may on conviction by a magistrate be punished with imprisonment of either description for a term, shall be forfeited with effect form the date of his escape or failure to return, as the case may be. Ar offence under this section shall be deemed to be a cognizable offence within the meaning of the Code of Criminal Procedure. 1998.

 

19. Incorrigibles- Where an inmate is reported to the [State government ]5 by the Visiting Committee to be incorrigible or to exercising a bad influence on the other inmates of the institution or is convicted under Section 18, 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]7 in pursuance of the  provisions of clause (14) of Section 32 of this Act the [State Government]7 may commute the residue of the term of detention to such term of imprisonment of ether description not exceeding such residue as the [State Government]7 may direct and may order the transfer of the inmate to nay jail in [Uttar Pradesh]5 in order to complete the said term of imprisonment .

 

20.   Inmates appointed officers to be public servants.- Inmates who have been appointed as officers shall be deemed to be  public servants within the meaning of the said term of imprisonment .

 

21. Extra-mural custody, control and employment of in mates.- An inmate when being taking to or form any borstal Intuition in which he may be lawfully detained or when working outside or binge otherwise beyond the limits of any such Borstal Institution in or under the lawful custody or control of an officer belonging to such borstal Intuition shall be deemed to be under detention and shall be subject to same incidents as if he were actually in a Borstal Institution.

 22. Penalty for introduction or removal of prohibited articles.- Whoever , contrary to any rule under Section 32, introduces or removes, or attempts my any means whatever to

 
   

 

 

5. Subs. by the A.O. 1950 for [Provl.         6. Subs, by idid. For [Crown]. Govt.]

 

introduce or remove, into or form any Borstal Institutional supplies or attempts to supply any inmate outside the limits of such Institution may prohibited articles, and every officer of a limits of such Institution nay prohibited articles, and every officer of a Borstal Institution who,

 

contrary to such rule, knowingly suffers any such articles to be introduced into or removed form any Borstal Institutional be possessed by any inmate, or to be supplied to any inmate outside the limits of  Institution any prohibited articles, and every office of a Borstal  , contrary to such rule, knowingly suffers any such articles to be introduced into or removed form any Borstal Institution to be articles to be introduced into or removed form any Borstal Institution to be possessed by any immate, 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 the commission of any of the aforesaid acts , shall on conviction before a magistrate, be liable, to imprisonment for a tern to exceeding six moths or to fine not exceeding two hundred rupees or to both.

 

23. Powers to arrest for offences under Section 22 .-  When any person in the presence of any officer of a Borstal Institution commits any offence specified into last foregoing section and refuses on demand of such offer to give his name and address or gives name or address which such officer know, or has reason to believe, to believe, to be false, such officer may arrest him, and thereupon such police officer  shall proceed as it the offence had been committed in his presence.

24. Publication of penalties.- 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 uncured by their commission.

 

25. Officers in charge of Borstal institution to detain persons duly committed to his custody – The Officer –in charge of a Borstal Institution shall receive and detain all persons duly committed to his custody under this Act according to the directions contained in the order by which person has been committed or until such person is discharged, or removed in due course of law.

26. Officer incharge of  Borstal Institutions to return orders , etc, after execution or discharge.- The officer incharge of a borstal Institution shall forthwith, after the execution of every such order as a fore said or after the discharge of the person committed their by, return succored 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 discharge form detention before the execution thereof .

 

27. Power of officer incarge to give effect to orders of certain courts.- [Officers incharge of Borstal Institutions may give effect to any order for the detention of any person passed or issued-

               (a) be any Court or Tribunal in a part A State or Part C State ; or

               (b) by any Court or Tribunal outsideIndiaacting under the authority of the Central           Government ;or

               © by any court or Tribunal in a Part B State, if the reception and detention in Uttar

 

Pradesh of the persons ordered to be detained by such Court or Tribunal is authorised by general or special order of the State Government .] 9

28. Warrant of officers of such courts to be sufficient storey. An order under the official] signatures of an officer 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

29. Procedure where officer incharge of borstal Institution doubts the legality or order sent to him for execution – (1) Where an officer incharge of a Borstal Institution doubts the legality of an order sent to him for execution of the competency of the person whose official seal or signature is affixed thereto pass the order, he shall refer the matter to the [State government ]10 by whose order on the case he, and all other public officers, shall be guided a to the future disposal of the  inmates.

(2) Pending a reference under sub-section (1) the inmate shall be detained in such manner and with such restrictions or mitigations as may be specified in the warrant order.

30. Lunatic inmates, how to be dealt with- (1) Where it appears to [State government]10 that any person detained under nay order is of unsound mind, the [State government]10 may order his removal to a lunatic asylum or other place of safe custody within the [State]11 there to be kept and treated as the [State Government ]10 directs during the remainder of the tern for which he has been ordered to be detained ,or if on the expiration of that tern it is citified by a medical officer that it is necessary for the safety of the inmate or others that he should b further detained under medical care or treatment, then until he is discharged according to law.

(2) Where it appears to the [State Government] 10 that an inmate so kept and t4reated has become of sound mind the [State government]10 shall, by a warrant directed to the person having charge of the inmate, remand him, if still liable to detained, to the Borstal Institution form which he was removed, or to another Borstal Intuition within the [Stage]11 or order him to be discharged on a license or otherwise, or otherwise or if he is not longer liable to be detained, order him to be discharged.

 

(3) The provisions of Section 31 of the Indian Lunacy Act, 1912 12 shall  apply to every person confined in a lunatic 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 a lunatic asylum under that sub- section (1) shall, so far as they can be made applicable, apply to an inmate removed under this sub-section shall be reckoned as part of the tern of detention which he may have been ordered to undergo.

 

(4) In any case in which a ]State government]13 is competent under sub-section  (1) to order the removal of an inmate to a lunatic saylun or other place of safe custody within the [State] 14 the [State government]13 may order his removal to any such asylum or place within ]any other State]16 by agreement with [the Government of such other State]16 and the provisions of this section reception 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.

 

31. Application to Borstal Institution of certain provisions of the Prisons act, 1994 and the Prisoners Act, 1900  Subject to the rules XI of the Prisons Act, 1894, and of Sections 35 to Borstal Institution established under this Act, and of Sections 35 to 50 (inclusive), and the rules made by the [State Government]13 under Section 51 of the Prisoners Act, 1900, shall apply so far as may be to Borstal Institutions established under this Act, and references to prisoners , imprisonment or confinement in the  said sections, chapters and rules hall be construed a referring to imamates, Brutal Institutions an detention and detention ;

 

9. Subs . by the A.O. 1950 for S. 27.                     10. Sub. by ibid, for (Provl. Govt.)

                                                                                 11. Sub. by ibid for (province).

              

 

 

 

Provided that the punishment of whipping or the imposition of cross bar fetters shall not be awarded to an inmate.

32. Power to make rules under the act,- The ]State Government]31 may after previous publication make rules17 consistent with this Act-

               (1) for the regulation, management and  classification of Borstal Institutions established under this Act and the description construction of wards, cells and other places of detention ;

               (2) for the regulation by number or otherwise of the inmates to be detained in each calls of institution ;

 

(3) for defining the powers and duties of the Director of Bostal Institutions ;

(4) for the government of Borstal Institutions, and the appointment, conditions of service, guidance, control punishment and dismissal of superintendents  and  other officers employed in Borstal Institutions, and for the defining of their responsibilities , duties, disabilities and powers ;

(5) for the maintenance of records and the preparation and submission of reports;

(6) for the selection and appointment of inmates inmate officers and their reduction and dismissal and for defining the responsibilities, duties and powers such officers ;

(7) for the temporary detention of inmates until arrangements can be made for their effects during their detention Borstal Institutions ;

(8) for feeding, clothing and bedding 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 , instruction and control of inmates within or without Borstal Institutions, and the disposal of the proceeds of their labour ;

(12)  for the treatment of sick inmates ;

(13)  for classifying and prescribing the forms of education , instruction, employment and labour and regulating the periods of rest ;

(14) (i) for defining the cats, which shall constitute Borstal Institution offences ;

(ii) for determining the  classification of Borstal Institution offences onto major and minor offences ;

 

(iii) for fixing the punishments admissible under this Act which shall be awardable for the commission of the various Borstal Institution of offences or the classes thereof ;

(iv) for declaring the circumstances in which acts constituting both a Borstal Institution offence and an offence under the Indian Penal Code may or may not be dealt with as Borstal Institution Penal code may or may not be dealt with as Borstal Institution offence ;

(v) for the award of marks and the shortening of periods of detention ;

(vi) for regulation the use of arms any imamate or body of inmates and the use--------- of the case of ……….. the case of an outbreak or attempt to escape’

(vii) for defining the circumstances and regulating the conditions under which inmates  in danger of death may be released;

(viii) for regulating the transfer from one part of 18[the whole ofIndia except Part B States] to another of inmates whose term of out of Borstal Instituting without due authority is

 prohibited ;

 

(15) for defining articles the introduction or removal of which into or out of Borstal Institution without due authority is prohibited ;

(16) for rewards for good conduct ;

(18) for regulating the transfer of inmates form one Borstal Institution to another or to an hospital or asylum and  from a Borstal Institution to a prison, or form a prison to a Borstal Institution ;

(19) for the treatment, transfer and disposal of criminal lunatics or re-covered criminal lunatics confined in Borstal Institutions ;

(20) for regulating the transmission of appeals and petition from inmates and their communication with their friends ;

 

(21) for the appointment and guidance of visitors of Borstal Institutions ;

(22) for prescribing conditions on which licences  may be granted, suspended, referred to in Section 14 ;

(23) for the appointment and  control of servants of the [Government ] 19 referred to in Section 14 ;

(24) for defining the powers and duties of after- care societies and guardians and the condition on which financial assistance may be given to them ;

(25) for the appointment of visiting committees ; and

(26) generally for the purpose of carrying out the provisions of this  Act.

 

33. powers of the State Government to apply Act to females. – The [State Government ]20  after  giving by notification in the Official Gazette not less then three month’ notice of its intention to do so may, by like notification direct, that the provisions of actions 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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

18. Sub, by the A.O.   1950 for [all the                            Existing Indian Laws) Order, 1947 for

 Provinces ofIndia] which had been                              (British Indian).

Sub, by theIndia  (Adaptation of