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TMI Blog1993 (4) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... ging that since at the time of commission of the offence he was a "child" within the meaning of section 2(e) of the Children Act, 1960 he could not, in view of section 24 of the said Act, be charged with and tried together with a person who was not a "child" and that had he been committed to and tried by the Children Court under section 5 of the said Act, he would have been institution allied in the "Special School" under section 10 of the Act. He thus claimed that his trial and consequent conviction and sentence was without jurisdiction entitling him to an order of acquittal and that, in any case, he was entitled to pre-mature release. (3) The contents of the petition, I am sure, must have shocked the conscience of the Division Bench which was seized of the matter. That is why, probably, it lost no time in asking the District Judge to enquire into and report as to whether the petitioner really was a "child" within the meaning of Section 2(e) of the Act and the District Judge equally lost no time in saying "yes". (4) By the time we came on to the scene, the matter was already ripe for arguments. I confess, I too felt no less pertu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. Of course, the order of sentence being in violation of the Uttar Pradesh Children Act, 1951, the Supreme Court granted relief with regard to the same keeping in view the age of the convict and the mandate of the Act. In the present case, however, the petitioner being below the age of sixteen at the time of the commission of offence, was a "child" within the meaning of Section 2(e) of the Children Act, 1960 and as such could not have been tried by the Court of Sessions. He could be proceeded against only as per the procedure laid down in that Act. He could thus neither be tried nor convicted nor sentenced to imprisonment by the Court of Sessions. This being the position the entire trial of the petitioner was without jurisdiction and was vitiated" I further proceed to record: "ARTICLE 21 was clearly violated and, we feel, so also Articles 14 and 19 of the Constitution as his trial before a forum other than that provided under the Children Act, 1960 deprived the petitioner of his substantial and valuable privileges which other offenders similarly placed, enjoy. " (7) It was said that no writ of certiorari lies. We agree. It was said that the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the judgment so prepared by me? Why this fresh exercise? Let me unfold the reason. But, then, before I proceed to supply the reason I must mention that not only the earlier Benches which had the occasion to deal with the matter but even the State had felt that the provisions of the Children Act, 1960 had seemingly been ignored. The State too fell into the line and challenged the writ petition on grounds purely legal. The facts were at no stage in dispute. The petitioner was relying upon the report of the District Judge asked for by the earlier Bench and the State had chosen not to say anything against it. This perhaps was the reason why the file by which the appeal of the petitioner was disposed of as far back as in the year 1983 was not requisitioned. Even the office did not tag it with the present writ petition. After all where / was the need? However, for no ostensible reason I called for that file. What was at the back of my action? Was it sense of shock, still persisting and haunting? Or was it only curiosity, simple and innocent? Or a sense of disbelief which was probably still lurking somewhere in the corners of my subconscious ? I am not sure. However, certainly I least ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the age of the appellant after radiological and other examinations. Consequently, we direct the Superintendent of Jail, Tihar, to send the appellant to the Police Hospital on 21st February 1983 for being examined by the Police Surgeon. Counsel for the State has said that she will convey this order to the Police Surgeon immediately so that the necessary arrangements can be made. The medical report will be sent to us before the next date. Why a police Surgeon? Why not a report from the head of the Radiological department of the Maulana Azad Medical College, or the L.N.J.P. Hospital, or the All India Institute of Medical Sciences? In any event, it was the police surgeon whose report was called for, however, it was a Radiologist who was examined by this Court." (15) In the report submitted it had been opined that Ishwar Singh was over 20 years of age. Dr. M.C. Bhatia was examined and cross-examined in Court. The statements of Vidyawati, mother of Ishwar Singh, and Piara Singh, father of Ishwar Singh, were also recorded. (16) I would like to reproduce the entirety of the text of the examination and cross examination of Dr. M.C. Bhatia, Radiologist. What I find inexplicable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight that we have to decide what is to be done in the matter, like this one. (18) The examination and cross-examination of Dr. M.C. Bhatia reads as under:- "STATEMENT of Dr. M. C. Bhatia, Radiologist, Police Hospital, Delhi, on S.A. Examination-in-chief by Mrs. Bharti Anand, Advocate On 21st February, 1983, Ishwar Singh was referred to me for assessment of his bonny age. X-rays taken to that effect revealed epiphysis and elbow wrist and iliac crest were fused. From the above examination my opinion is that age of Ishwar Singh on the date of my examination was over 20 years. Q. Do you think that the material before you was sufficient to come to the conclusion that the age of Ishwar Singh was above 20 years. A. Yes. Cross-examination: by Bawa Gurcharan Singh, Advocate Q. I put it to you that the science of radiology is not a perfect science. Do you agree with me? A. It will not be possible to give the exact age from the ossification test, but the margin of difference can be about 2 years on either side. In this case there was no margin for an error since all the epiphysis were united. Q. Can you cite any authority in support of your above assertion? A. Yes, I can do that. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he says that in order to determine the age, one must also take the skiagram of the joint of the occipital bones which starts at the age group of 18 to 20. A. I have not read this book and my answer is the same as in respect of previous question. Q. As a radiologist, do you know that vertebral columns go on ossifying as the age progresses? A. All the bones go on ossifying from time to time and it is a continuous process. The bonny growth stops at the age of 20. Q. Did you take the skiagram of the vertebral columns in order to find out if they have united or not? A. There was no necessity. Q. Is it correct that all the books Modi, Gradwahl and Polson say that in order to arrive at a correct opinion of age of an adult, it is necessary to take skiagram of the extremities from both sides of the vertebral columns, of the spheno-occipital joints, of the joining of the occipital bones and of the joining of sternal and of the clavicle to come to a definite finding? A. It is not necessary. Our purpose is served by way of taking radiograph of any two or three major joints. Q. Have you brought the skiagrams with you today? A. They were collected by the police and I have, Therefore, not brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o born 3 years after the fourth child. The next child, that is the 6th child, was Swaran Kaur. She was also born after the interval of 3 years from the birth of the last child. The last child was Ishwar Singh, appellant. He was also born 3 years after the birth of Swaran Kaur. Ishwar Singh was born in village Sonkara, Tehsil and District Kamal. At Sonkara my sister was residing then.I had to go there for delivery because of war between Pakistan and India had started and it was not safe to reside at our place at Gandhi Nagar, Delhi. No child was born after Ishwar Singh. When the case against Ishwar Singh started I used to go to Shahdara courts. At the time of that case he was 16 years old. Ishwar Singh is being kept in the ward of Children in the Tihar Jail. Cross-examination by Mrs. Bharti Anand, Advocate Now Ishwar Singh must be 17 or 18 years old. I cannot tell the date or the month or the year of the birth of Ishwar Singh. The only thing I can tell is that there were apprehensions of bombing in those days. Ishwar Singh was born when Shri Lal Bahadur Shastri died. I was born before partition came into existence. I can tell the age of my eldest daughter Basant Kaur and she must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... married at the age of about 16 years. She has three children and the age of her eldest child is 10 or 12 years. R.N.Aggarwal,J. July 22, 1983 G.R.Luthra,J." (22) In the light of the observations of the Supreme Court in 1982CriLJ1777 , this Court fell into a very grave error in not giving the benefit of two years to the petitioner Ishwar Singh, particularly when the case was a border line case. The evidence of Dr. M.C. Bhatia, one of doubtful import inasmuch as it is not established that he was an expert in the matter of giving opinion of age, he did not produce or cite any authoritative medical text to support his views during his cross-examination. What is more this Court did not give any finding regarding the inapplicability of the judgment reported 1982CriLJ1777 , to the question before it, while pronouncing the order dated 16.02.1993, holding that Ishwar Singh was not a child. What ought we do in the matter like this when it is sought to be urged before us by a petition under Article 226 of the Constitution of India, a Habeas Corpus petition, that the petitioner has been deprived of his personal liberty otherwise than by the procedure established by law. (23) The questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2]1SCR391 . Shamdasani v. Central Bank of India Ltd.) is much stronger than the principle of binding precedent. In any case, as stated above, per incuriam judgment delivered in breach of a binding precedent of a superior court does not bind any bench of this Court. Habeas Corpus writ recognised no "finality" of judgments of courts. It recognised no principles similar to those of res judicata. (27) Accordingly I would not consider that the act of filing of this independent writ petition, as a "fraud". I say so because of the nature of the writ of habeas corpus itself. I am fortified in what I am saying, because of the nature of the writ of Habeas Corpus. (28) Writ of Habeas Corpus originally began in England, as a prerogative writ. The full name of the writ is Habeas Corpus ad subjiciendum. In "Judicial Review of Administrative Action" Fourth Edition by de Smith, it is stated to be "the most renowned contribution of the English common law to the protection of human liberty. This writ is even older than the Magna Carta. In the early fourteenth century, writ of habeas corpus was known as writ of habeas corpus-cum-causa. That writ required the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e liberty of the subject. If upon the return to that writ it was adjudged that no legal ground was made to appear justifying detention, the consequence was immediate release from custody. If release was refused, a person detained might - see Ex parte Partington (13) -make a fresh application to every judge or every Court in turn, and each Court or Judge was bound to consider the question independently and not to be influenced by the previous decisions refusing discharge. If discharge followed, the legality of that discharge could never be brought in question. No writ of error or demurrer was allowed: City of London's Case (14.) (31) This observation makes it clear that the principle of "finality" of an order of court did not apply to writs of Habeas Corpus. (32) The writ of habeas corpus had become by the time of the enactment of the Administration of Justice Act, 1960, a unique writ, inasmuch as successive writs of habeas corpus could be applied for before each judge and before each division of the courts. So it was that an unsuccessful applicant for habeas corpus could renew his application before each superior court and each superior judge in turn. (See Eshugbayi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to those passed in habeas corpus writs being orders under the p73 provisions of section 491 of the Criminal Procedure Code 1898 were orders which were appealable, being orders in "a criminal cause or matter". (36) Shibnath Banerjee's case, 1945PC 156, was pre-constitutional case. After 1950 when the Constitution came into force, the Supreme Court under Article 32, and the superior courts of record being the High Courts in the States, by virtue of Article 226 of the Constitution, were given the constitutional power to issue habeas corpus writs. This constitutional power to issue habeas corpus was not the Criminal Procedure Code power to issue orders akin to habeas corpus. The constitutional power to issue writs of habeas corpus was the same power as superior courts of record exercised in England. This was the same power as the power of English superior courts to issue of writ of habeas corpus ad subjiciendum prior to the enactment of Administration of Justice Act, 1960. For this reason after 1950, when the High Court exercised constitutional power to issue writs of habeas corpus ad subjiciendum, their orders were not subject to appeal. The constitutional powers of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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