ISHWAR SINGH Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) Ishwar Singh, the petitioner and one Mangat Ram were charged for an offence under Section 302 read with Section 34 of the Indian Penal Code. They were tried together. Mangat Ram was acquitted. Ishwar Singh was, however, convicted and sentenced to imprisonment for life by court of Session and Cr.A-94 of 1982 filed by him was dismissed by this Court on 26th April 1984. The Special Leave Petition of Ishwar Singh was dismissed by Supreme Court on 14th September, 1984.

(2.) After having already served the sentence for about 12 years, this writ petition under Article 226 and 227 of the Constitution of India has been filed by Ishwar Singh claiming 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 ( for short 'the Act') he could not, in view of Section 24 of the Act, becharged with and tried together with a person who was not a 'child' and that his rial and consequent conviction and sentence was without jurisdiction, thus, entitling him to be released forthwith. The petition was filed on 9th June, 1992. A Division Bench of this Court on 10th July 1992 directed the District Judge to hold enquiry regarding the age of the petitioner at the time of commission of the offence. A report dated 11th November, 1992 was submitted by District and Sessions Judge to this Court slating that Ishwar Singh was born on 8th December, 1965 and that he was below 16 years of age at the time of alleged offence and was a child within the meaning of Section 2 (e) of the Act. The report of the learned District and Sessions Judge,inter-alia, states that it appears that in the trial court as well as in the appellate court and also in the Supreme Court the petitioner had not raised the plea that he was below 16 years at the time of the alleged offence and that he was "child" within the meaning of Section 2 (e) of the Act. The District and Sessions Judge recorded the statement of Ishwar Singh and Sarpanch of Gram Panchyat as also of Piara Singh, father of Ishwar Singh. No evidence was produced before the District and Sessions Judge on behalf of the State to show that Ishwar Singh was more than 16 years of age at the time of the alleged offence. The report concludes that:- "On the basis of evidence on record and circumstances of this case, in my opinion, Ishwar Singh, accused, was born on 8th December, 1965 and that he was below 16 years of age at the time of alleged offence and that he was a child within the meaning of Section 2(e) of the Children Act, 1960."

(3.) The arguments in the matter were heard by a Division Bench (Mahindar Narain and Jaspal Singh, JJ) and the judgment was reserved. The arguments before the Division Bench proceeded on the assumption that the question about the age of Ishwar Singh had not been raised during trial in the Court of Sessions or before the Bench hearing Cr. A.94/82 or before the Supreme Court. No one brought to the notice of the court that the question of age of Ishwar Singh had not only been raised but had been adjudicated upon in Criminal Appeal No. 94/82. The file of the said appeal was neither requisitioned nor sent to the Bench hearing the writ petition. It seems that after the draft judgment was ready the said file was called for by Jaspal Singh, J. In his opinion Jaspal : Singh, J. says:- "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 curosity, simple and innocent? Or a sense of disbelief which was probably still lurking somewhere in the corner of my subconscious ? I am not sure."