BOHAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) WHETHER a convict undergoing imprisonment under the judgment of a criminal court, which has achieved finality, can prefer and maintain a writ of habeas corpus to assail his detention, is the oristinely legal question which provides the common link in this chain of four Criminal Writ Petitions, which are before us on a reference.

(2.) THE issue of law being identical and the facts closely similar, the learned Counsel for the parties agree that this judgment will govern all these cases. It, therefore, suffices to advert to the matrix of facts in Cri. W. P. No. 45 of 1980 (Bohar Singh v. State of Puniab and Anr. ). The petitioner therein was tried along with others on the charge of murder and other allied offences and beinp convicted therefor was sentenced to imprisonment for life by the judgment of the learned Sessions Judge. Forezepore, dated April 3, 1975. He preferred Criminal Appeal No. 496 of 1975 jointly with his co-accused, which was dismissed by a Division Bench of this Court on July 27. 1978. No further appeal was carried to their Lordships of the Supreme Court and in accordance with the aforesaid judgment the petitioner was detained in various jails in the State.

(3.) MORE than five years after the date of the original conviction the present writ petition has been preferred on April 21, 1980 seeking a writ of habeas corpus against what is alleged to be an illegal custody of the petitioner. The primary ground set out therefor is that on the date of the commission of the crime on September 30, 1974, the petitioner was less than 16 years of age and therefore, came within the definition of 'child1 under the East Puniab Children Act, 1949 (hereinafter called the Act.) and consequently Section 27 of the said Act bars the imposition of a sentence of imprisonment for life on him. This claim is rested solely on the ground that in. his statement made under Section 313 of the Code of Criminal Procedure, 1973. in the Court of Session, the petitioner stated his age as 15 years. The assessment of the petitioner's be having been not accepted prima facie, he was got medically examined by Dr. S. K. Gupta P. W. 1, who opined that his age on the date of the examination was about 17 years. This opinion is; now belatedly attempted to be challenged on the ground that the same did not rest on a solid clinical basis or any ossification test. However, it is the admitted position, that even though the petitioner was represented by a counsel in the criminal trial, at no stage thereof Was any claim made on his behalf that the provisions of the Act would be applicable to him, So much so that even when expressly heard on the point of sentence not a hint of such a ground was urged before the trial court. Equally it is the common case that in the criminal appeal, filed in this Court, wherein again the petitioner was represented by a counsel, such an issue was not even remotely raised either in the grounds of appeal or in the course of arguments, As already noticed no special leave petition against the dismissal of the petitioner's appeal was preferred to their Lordships of the Supreme Court,