1993 (4) TMI 336 - HC - Indian Laws

Summary

Issues Involved:
1. Whether Ishwar Singh was a "child" under the Children Act, 1960 at the time of the commission of the offense.
2. Whether the trial and conviction of Ishwar Singh were conducted without jurisdiction.
3. Whether the principle of finality of judgments applies to habeas corpus petitions.
4. Whether the previous judgment by the Division Bench was per incuriam due to ignoring a binding precedent.
5. Whether the petitioner is entitled to a writ of habeas corpus and subsequent release.

Detailed Analysis:

1. Whether Ishwar Singh was a "child" under the Children Act, 1960 at the time of the commission of the offense:
The petitioner argued that he was a "child" within the meaning of section 2(e) of the Children Act, 1960, at the time of the offense, and thus, should have been tried by the Children Court. The District Judge confirmed that Ishwar Singh was indeed a "child" as defined by the Act. However, upon reviewing the case file, it was found that during the appeal, the Division Bench had already determined that Ishwar Singh was not a "child" based on evidence, including the testimony of Dr. M.C. Bhatia, a Radiologist, and the statements of Ishwar Singh's parents.

2. Whether the trial and conviction of Ishwar Singh were conducted without jurisdiction:
The petitioner contended that his trial and conviction by the Court of Sessions were without jurisdiction as he should have been tried under the Children Act, 1960. The court noted that the trial of a "child" by a Court of Sessions violated Article 21, and also Articles 14 and 19 of the Constitution, as it deprived the petitioner of substantial and valuable privileges. The court initially felt that the trial was without jurisdiction and vitiated.

3. Whether the principle of finality of judgments applies to habeas corpus petitions:
The court discussed the principle of finality of judgments, emphasizing that it should not overshadow the constitutional prohibition against deprivation of personal liberty without due process. The court leaned on the observations of Ranganathan, J. in A.R. Antulay v. R.S. Nayak, emphasizing that the principle of finality should not prevent the correction of a grave mistake.

4. Whether the previous judgment by the Division Bench was per incuriam due to ignoring a binding precedent:
The court examined whether the previous judgment was per incuriam, i.e., delivered by ignoring a binding precedent. The court found that the Division Bench had not considered the Supreme Court's judgment in Jaya Mala v. Home Secretary, Government of Jammu and Kashmir, which acknowledged a margin of error of two years in radiological age determination. The court concluded that the Division Bench's order was per incuriam as it ignored this binding precedent.

5. Whether the petitioner is entitled to a writ of habeas corpus and subsequent release:
The court discussed the nature of the writ of habeas corpus, emphasizing its role in protecting personal liberty and its precedence over the principle of finality of judgments. The court concluded that the petitioner had been deprived of his personal liberty by a procedure not prescribed by law, specifically the Children Act, 1960. Therefore, the court issued a writ of habeas corpus, directing the immediate release of Ishwar Singh.

Conclusion:
The court found that the previous decision regarding Ishwar Singh's age was per incuriam, and his trial and conviction were conducted without jurisdiction, violating Article 21 of the Constitution. Consequently, the court issued a writ of habeas corpus, ordering the immediate release of Ishwar Singh.