Delhi High Court
Ishwar Singh vs State (Delhi Administration) And Anr. on 22 April, 1993
Equivalent citations: 1993(3)CRIMES952, 50(1993)DLT428, 1993(27)DRJ289, 1993RLR416
JUDGMENT Jaspal Singh, J.
(1) In the sprawling locality of Gandhi Nagar there is a conclave known as Raghubarpura No.2'. On August 5,1980 its Gali No.6-Bwas a witness to the murder of one Sukh Dayal. Two persons namely, Ishwar Singh and Mangat Ram were accused of having committed the crime and were consequently charged with and tried together, for an offence under Sec.302 read with Sec.34 of the Indian Penal Code. The trial court acquitted Mangat Ram. However, Ishwar Singh proved to be not that lucky and was convicted and sentenced to imprisonment for life under Section 302 of the Indian Penal Code. Even his appeal to the High Court failed. Aggrieved, he filed a Special Leave Petition (Criminal). Leave was not granted. The year was 1984.
(2) On June 9, 1992, after having already served the sentence for nearly 12 years, Ishwar Singh filed this writ petition under Articles 226 and 227of the Constitution all egging 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 10of 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 perturbed. Our attention was drawn to the judgments of the Supreme Court in Jayendra & anotherv. State of Uttar Pradesh ,Bhoop Ram v. State of Uttar Pradesh . In both these cases the convict was a "child" within the meaning ofsec. 2(4) of the Uttar Pradesh Children Act, 1951 at the time of the commission of offence and were of more than 18 years of age when their appeals had come up for disposal. Their convictions were upheld but the sentences imposed were quashed. Our attention was drawn to yet another judgment in Gopinath Ghosh v. State of West Bengal in support of the plea that the entire trial was vitiated. When the State took the objection that in view of Supreme Court's refusal to grant leave to appeal the doctrine of merger would be attracted, the argument was countered by relying upon a judgment of the Madras High Court in Western India Match Co. v. Industrial Tribunal, Air 1958 Madras 398 wherein it was held that refusal to grant the leave asked for could not affect the jurisdiction vested in the High Court under Article 226 of the Constitution.
(5) The arguments dragged on for long long hours after which we reserved the orders and I proceeded to prepare the proposed judgment.
(6) Dealing with the Supreme Court judgment in Jayendra and another v. State of Uttar Pradesh and Bhoop Ram v. State of Uttar Pradesh I wrote in my proposed judgment: "THOUGH reliance was placed on the judgments of the Supreme Court in Jayendra & Another v. State of U.P. and Bhoop Ram v. State of Up, by the petitioner, the learned counsel for the State tried to find some solace from them by pointing out that in both those cases conviction had been maintained by the Supreme Court and that relief was confined to the sentencing part only. True, it is so, but any discerning eye would notice that in both these cases there were other accused also who did not fall within the meaning of "child". This being the position, the "child' s''joint trial with others by the Court of Sessions was not in violation of any of the provisions of the Utter Pradesh Children Act, 1951. Rather, the Act specifically permits such a joint trial. Consequently the trial itself was not vitiated and we believe that this must have been the reason for the Supreme Court to maintain the order of conviction. 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 wasclearlyviolatedand,wefeel,soalso Articles 14 and 19of 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 has become final and once it is recalled it would see flooding of other such matters. We do not agree and in support lean on the following observations of Ranganathan, J. in A.R.Antulay v. R.S.Nayak : "FINALITY of the orders is the rule. By our directing recall of an order the well settled proposition of law would not be set at naught. Such a situation may not recur in the ordinary course of judicial functioning and if there be one certainly the Bench before which it comes would appropriately deal with it. No strait-jacket formula can be laid down for judicial functioning particularly for the apex court. The apprehension that the present decision may be used as a precedent to challenge judicial orders of this Court is perhaps misplaced because those who are familiar with the judicial functioning are aware of the limits and they would not seek support from this case as a precedent. We are sure that if precedent value is sought to be derived out of this decision, the court which is asked to use this as an instrument would be alive to the peculiar facts and circumstances of the case in which this order is being made."
(8) It was also said that we cannot reverse the judgment. Let us make it clear that we are not taking it to be a case of collateral attack on judicial proceedings. It is also not to be taken as a case of reversal of a decision, it is a case where the court committed a mistake of a great magnitude and imagine the enormity of the consequences suffered. More than twelve years of incarceration, and we are told we can do nothing. We do not feel shackled for we know it would not only be just and proper to rectify and recall that injustice but would also remove what we regard as an ugly pimple on the fair face of justice. Let us own up the mistake. One wrong has already been committed. We refuse to commit another for nothing detracts the power of the court to review its judgment ex debito justitiae. We have that in horrent power. After all act us curiae neminem gravabit"(an act of the court shall prejudice no man) is not a mere empty slogan.
(9) True, in Gopinath Ghosh v. State of Bengal (supra) the case was remitted back. However, there is a petitioner who has already undergone imprisonment of more than twelve years. Fresh ordeal is not called for. He stands acquitted."
(10) Why are we not delivering 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 subconscience? I am not sure. However, certainly I least suspected that my exercise would burst the bubble of a fraud assiduously hidden so far from the range of our eyes .On perusal of the file I found, to my great dismay, that the question regarding the age of the petitioner had already been gone into during the pendency of the appeal and that the concerned Division Bench, after recording evidence comprising of the statement of Dr.M.C.Bhatia, a Radiologist and so also of Vidyawati and Pyara Singh (who were none other but the parents of our petitioner) had come to a finding that the petitioner before us was not a "child" within the meaning of section 2(e) of the Children Act, 1960 at the time of commission of the offence. The date of their finding is August 9, 1983. Thus the entire edifice raised on the foundation of falsehood and perfidy crumbled to the ground but not without leaving me aghast over how designedly we were tried to be misled. This, then, is the reason for this fresh exercise.
(11) What next? To the petitioner an appalling death agony of a hope. To his counsel? My wish that like Sherlok Holmes I too could shrug my shoulders and say: "This is not cricket, Dr.Watson!" And, to ourselves? A constant prayer: "Lead us from Darkness to Light" (Brihadaranyaka Upanishad) Dismissed but with no order as to costs.
Mahinder Narain, J.
(12) I have had the benefit of reading the judgment given by brother Jaspal Singh, and would reiterate all that he has said regarding prohibition contained in Article 21 of the Constitution, that no person shall be deprived of his life and personal liberty except by the procedure established by law, as also the violation of Articles Hand 19 oftheConstitution, as trial of the petitioner took place before a forum other than that provided under the Children Act, 1960, and I would also reiterate the legal maxim that the act of court shall prejudice no man.
(13) What has happened in the Criminal Appeal No.94 of 1982 before this Court, also needs to be stated in these writ proceedings, and I proceed to incorporate in this order what had transpired in the said appeal before the D.B. of this Court.
(14) A Division Bench of this Court in Criminal Appeal No.94 of 1992 had directed on 16.02.1983, that a report be called from the "Police Surgeon", which inter alia reads as under:- "WE further wish to have a medical report with regard 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 is that in the entire text of the examination-in-chief, not a word has been stated regarding the qualifications and experience of Dr. M.C. Bhatia. These statements were, in my opinion, the vital of necessity in view of the judgment of the Supreme Court in Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others, in which Bhagwati, J., speaking for himself and another, said that it is universally accepted that the margin of error in the opinion of the radiologist two years. The observations of the Supreme Court were as follows:- "DETENU was arrested and detained on Oct. 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert, in Oct., 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheaval in the educational institutions. This young school going boy may be enthusiastic about the students' rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with as ledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed.
(17) I find it strange that despite the fact that the judgment of the Supreme Court had been delivered prior to the pronouncement of the order of the D.B" the order declaring the petitioner to be more than 20 years of age, does not refer to what was stated by the Supreme Court in Air 1982 Sc, and in my view, for the purposes of the instant case it is possible that grave injustice has been done to the petitioner by ignoring binding judgment of the Supreme Court, and it is in that light 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 text book on radiology by British Authors supports my view. I have this book with me, and if the court desires, I can produce the same. Q. Is it correct that Modi, Poison and Gradwahl are authorities on medical jurisprudence? A. I am specialist in radiology and I read only books on that subject and therefore I am unable to answer the question put by the counsel. Q. Is it correct that you deal with the determination of age of medico- legal cases as a radiologist in the police hospital ? A. Yes. Q. Is it correct that Modi in his book at page 31 says that ossification test is not a sure test as there is a range of error up to 3 years on either side? Do you agree with the same. A. I do not recognise Modi as a book of authority on radiology. Q. Is it correct that Modi says that humerus gets fused to the shaft in Punjabis at the age of 17 to 18 years? A. These are observations of only individuals and these are not standard opinions. Q. Is it correct that Modi says that distal end of ulna gets fused in Punjabis at the age of 16 to 17 years and the crest of ileum gets fused in the case of Punjabis at the age of 16 to 17 years? A. My answer is the same. Q. Did you take the skiagrams of both the sides of the extremities or only left and right side? A. Only of one side but I do not remember of which side since it is immaterial. Q. Is it correct that Modi says that in order to come to a correct opinion about the determination of the age, the skiagram of both sides of the extremities should be taken? A. I have no idea since I have not read the Medical Jurisprudence of Modi. Q. Is it correct that there are certain bones which unite only after the age of 20 years? A. Yes, it is correct like sternum which unites over the age of 40. Q. Is it correct that Polson and Gradwahl both say that sternal end of clavicle gets fused at the age of 20? A. I have not read the said books. But since the iliac crest also unites at the age of 20, so there is no point in taking radiograph of all the parts of the joints of the body. Q. Do you agree with Polson when he says that spheno-occipital joins only at the age of 17 to 20? A. Yes, it may be correct but the very fact of uniting of iliac crest was a pointer to the effect that age must be near about 20. Hence, there was hardly any necessity of taking the skiagram of all the joints and bones of the body. Q. Do you agree with Grand Wahl when 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 the same today. Q. When did you hand over the said skiagram to the police? A. My register,which I have brought, shows that it was on 21st February, 1983 that the skiagrams were handed over to the police. Q. Is it correct that the police officer who collected the skiagrams was accompanied by Ishwar Singh? A. Yes. Q. Can you tell the name of the police officer? A. My register shows that it was head constable Lal Chand. Q. Is it correct that the investigating officer of this case was also accompanying him? A. I have no knowledge. Q. Is it correct that in order to come to a corroborative finding, the doctor has to take into consideration the development of the teeth? A. Development of teeth does give some support but since I am not a dentist and also there is a very wide gap in the appearance of the last molar, I did not study the development of teeth. I did not send Ishwar Singh to any dentist because it is none of my job. Q. Is it correct that development of public hair, development of the hairs on the scrotum and the development of hair on the auxilla also help in the development of age and have the corroborative value? A. Yes. Q. It is put to you that the opinion given by you is not correct? A. It is incorrect. As far as my knowledge goes, the opinion is correct. Q. Is it correct that you purposely did not take skiagrams because then you would not have been able to come to the opinion which you wanted to give at the instance of the investigating officer? A. It is totally wrong. R.O.&.A.C. R.N. Aggarwal,J. July 22, 1983. G.R. Luthra, J. "
(19) The statements of the parents of Ishwar Singh read as under:- "A.W.I: Statement of Vidyawati, wife of Shri Pyara Singh, age 35-40 years (by appearance she does not look less than 40 years) resident of Raghubarpura, Delhi.
(20) EXAMINATION-IN-CHIEF by Bawa Gurcharan Singh, Advocate I was married to Pyara Singh about 2 years prior to the partition of the country. At that time I was 16 year sold. My first child was Basant Kumar who was born at Amritsar,2 years after the partition of the country. The second child was Manak Singh, born 3 years after the birth of the first child. The third child was Tara Singh, who was born 2-1/2 years after the birth of the second child. Fourth child was Amrik Singh who was born 3 or 3-1/2 years after the birth of the third child. Manjeet Kaur was the fifth child and she was also 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 17or18 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 about 21 or 22 years old. I have four sons and three daughters, names of whom have been mentioned already. None of our children was put in any school. I do not have any understanding about getting entry of birth at any place and hence none such entry was got made. We are very simple people. I do not know if any such entry of birth is to be got recorded. (Volunteered: My mother used to be my mid-wife for the delivery of children). It is correct that I cannot tell the ages of my children but the difference between them was approximately 3 years. R.N.Aggarwal,J. July 22, 1983 G.R. Luthra,J."
(21) A.W.2 Statement of Shri Pyara Singh son of Shri Balwant Singh age 50 years, profession: cleaning of utensils, resident of Gandhi Nagar (house number is not known)on S.A. I was married at the age of 21-22 years with Vidyawati 2 years before the coming into existence of Pakistan. Basant Kaur was born 2 years after the coming into existence of Pakistan. Thereafter my children were born after a period of 2-1/2 or 3 years and my children are Basant Kaur, Manak Singh, Tara Singh, Amrik Singh, ManjeetKaur, Swaran Kaur and Ishwar Singh. Ishwar Singh was born at village Sonkara, Teh. & District Kamal. At that time Pakistan and India war was going on. When Ishwar Singh p73was born in those very days Shri Lal Bahadur Shastri died. Ishwar Singh was 16 years of age when the prosecution in court against him started. None of my children was ever admitted in any school. The birth entry of any of my children was not made. Cross-examination by Bharti Anand, Advocate No important event took place when my daughter Swaran Kaur was born. I do not remember of any important event near about the birth of any other child except Ishwar Singh. I was born about 22 years prior to 1947. I was born in village Kason Ke, Tehsil Harisabad, district Gujranwala. Manak Singh was born at Amritsar. Amrik Singh was born at Delhi. It was on account of the partition of the country that we came to Amritsar where we stayed for 2 years. Two children were born at Amritsar and thereafter we migrated to Delhi. After staying for some period at Delhi we shifted to other places. We stayed in Mohalla Chand at that time. When we came to reside at Delhi we have been staying at Gandhi Nagar. This is correct that I have no idea of the date of birth or the ages of my children. My eldest daughter Basant Kaur was married at the age of about 16 years. She has three children and the age of her eldest child is 10or 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 , 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 , 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 questions are: Can we say that there is a "fraud" in the instant case, or is it not that the petitioner who has been allegedly gravely injured by the breach of the prohibition of Article 21 of the Constitution of India, by continued incarceration in prison having been deprived of his personal liberty otherwise than by procedure established by law? Is this Court in exercise of its power of granting habeas corpus under Article 226 of the Constitution helpless? Is this Court bound to consider that the decision of the coordinate division bench of this Court regarding the age of the accused given by ignoring the binding dicta of the Supreme Court in , ham- strung by the principle of "finality" of "orders and judgment" of this Court? Is the constitutional prohibition not of greater consequence than a rule of finality of judgment of a court, and by which a division bench accepts judgments of a coordinate bench? Further, are these rules applicable to a habeas corpus petition, which is itself intended for determination of legality and validity of incarceration and detention?
(24) To give answer to these questions, one has to examine the nature of the writ of habeas corpus.
(25) Also to be kept in view is the law declared by the later judgment of the Supreme Court in A.R. Antulay v. R.S. Nayak . The principle of Per Incuriam judgment stated therein is of significance while dealing with this case. The Per Incuriam judgments according to the judgments pronounced by different Courts reported as 1988(2) SCC607 [7 Judges], 1942(2) All Er 194, and 1944(l)AIIER300,and the observations in Salmond Jurisprudence: 12th Edition at page 150, are those judgments which do not lay good law. They have no binding force as they have been delivered by ignoring a binding precedent. By virtue of Article 141 of the Constitution, the judgment of the Supreme Court in 1982 Sc 1297 was binding upon the Division Bench of this Court, and as such the order of this Court given in ignorance of the said judgment, is a judgment per incuriam, having been delivered by this Court, not following the binding law laid down by the Supreme Court in 1982 Sc 1297. A per incuriam judgment is not something which is "final" vis-a-vis the petitioner.
(26) In my view, the prohibition contained in Article 21 of the Constitution(Article21 is a prohibition: See 1952SC59= 1952SCR391 P.D. Shamdasani v. Central Bank of IndiaLtd.) 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 person who already had custody of a prisoner to produce him before the court, together with the ground for the detention. It was a means for testing the legality of the detention,this was the immediate ancestor of the writ of habeas corpus ad subjiciendum. The law courts at Westminster used the same to protect, to assert and extend their own jurisdiction against their various rivals by securing the release of litigants and others found in custody. It was also used by private litigants to procure an order of release for wrongful imprisonment; and in this way it came to assume high constitutional importance as advice for impugning the validity of arbitrary imprisonment by the executive. (See ''Judicial Review of Administration Action Fourth Edition by de Smith, page 596). The other early forms of Habeas Corpus writs are mentioned in the Law of Habeas Corpus Second Edition by R.J. Sharpe, at page 3, i.e. de homine replegiando, main prize and de odio et atia.
(29) In England, a sovereign Parliament, not a Constitutional Parliament, enacted the Habeas Corpus Act 1679, scope whereof was extended in 1816. In Judicial Review of Administrative Action at page 597, it is stated, "An application for a writ of habeas corpus ad subjiciendum must be made to a Divisional Court of the Queen's Bench Division or, if no such court is sitting at the time, to a single judge of any Division of the High Court. In vacation,or at any other time when no judge is sitting in court,it may be made to a judge out of court (e.g. at his home). Applications for habeas corpus have priority over all other business. An application will normally be made ex parte, but it must be supported by an affidavit by the person restrained, showing that it is made at his instance and setting out the nature of the restraint, unless he is unable to make an affidavit, in which case the affidavit may be made by another person on his behalf and must explain the special circumstances.
(30) In The Rev. James Bell Cox v. James Hakes, 1890 Vol.XV Appeal Cases, page 506 (H.L.), Lord Halsbury observed as follows regarding the nature of writ habeas corpus as subjiciendum:- "MYLords, probably no more important or serious question has ever come before your Lordships' House. For a period extending as far back as our legal history, the writ of habeas corpus has been regarded as one of the most important safeguards of the 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 Eleko v. Government of Nigeria [1928] A.C.459 (P.O.). However, in Re: Hastings, the decision of the Queen's Bench, a court lower in the hierarchy of courts, the House of Lords, despite the the law laid down by the House of Lords and the Privy Council, it was held that the rule of moving habeas corpus petition from judge to judge, or division to division had never existed. In any case, the moving of a Habeas Corus petition from judge to judge or a division to another division came to an end with the enactment of Section 14(2) of the Administration of Justice Act, 1960 by a sovereign" Parliament. The decisions in Hastings cases were Re Hastings (No. 1 )[l 958] I W.L.R.372; Re Hastings (No.2) [1959] 1 Q.B.358; Re Hastings (No.3) [1959] 2 W.L.R.454; [1959] Ch.368).
(33) It is because of the enactment of the Administration of Justice Act, 1960, that habeas corpus writs on the same ground to the same court or judge, or any other court or judge, could not be made unless fresh evidence was adduced. It was necessary for fresh evidence to be relevant and admissible. There was also another uniqueness of the writ of habeas corpus as stated by Lord Halsbury in Cox v. Hakes: 1890( 15) Ac 506, if any of the judges or any of the divisions to whom writ of habeas corpus is applied for, granted the writ, the petitioner/prisoner would have his liberty which could not be questioned in any appeal before any court whatsoever.
(34) It was only by the enactment of the Administration of Justice Act, 1960, that for the first time in the history of English Jurisprudence that appeal lay against any decision on a habeas corpus application.except a decision by a single judge to award the writ in criminal matter. Prior to 1960, no appeal lay to the High Court from refusal of a writ in respect of a criminal cause; nor did any appeal lie from a decision to award the writ in any type of case except one involving private civil detention.
(35) In India writs in the nature of writ of habeas corpus ad subjiciendum could not be issued by all courts. Some orders could be made under the provisions of section 491 Criminal Procedure Code, 1898. It was thought that proceedings under section 491, being in the nature of habeas corpus proceedings, appeals did not lie. This contention was negated by the Privy Council in Shibnath Banerjee's case, 1945 Pc 156. The result was that orders similar 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 the superior courts of record were not to be made subject matter of appeals.
(37) I do not think that for the reasons already stated above, this Court is ham-strung by the earlier decisions of the Division Bench of this Court, that the petitioner is not a child.
(38) In matters involving the personal liberty of subject, this Court would be right in leaning in favor of citizen's personal liberty rather than the judge-made principle of binding precedents,especially when a particular order stated to be a precedent, is actually an order per incuriam, as was, in my opinion, the order dated 16.02.1983 in Criminal Appeal No.94of1992. In any case, as observed by the Supreme Court, radiological examination for the purpose of determination of the age of any person can have a margin of error of two years. The radiologist in the instant case at best opined that the petitioner is 20 years of age. When the radiologist said so. it could well be that the petitioner was only " 18 years of age". His parents have deposed that the petitioner at the time of radiological examination, would be "about the age of 18 years". In view of the judgment of the Supreme Court in 1982 Sc 1297, regarding the judicial recognition of margin of error of 2 years, I would prefer the testimony of the parents of Ishwar Singh, and say that Ishwar Singh was a "child" to whom the Children Act, 1960 applied, at the time of commission of the crime.
(39) At the time of commission of the crime, the petitioner being achild, was entitled to be tried in accordance with the provisions of the Children Act 1960, and not according to the provisions of the Criminal Procedure Code.
(40) In this view of the matter, the petitioner, in my view, has been denied the personal liberty by a procedure which is not prescribed by law, in the instant case the Children Act, 1960.
(41) There being a violation of the Constitution, prohibition contained in Article 21 of the Constitution, the petitioner is entitled to the writ of habeas corpus, and accordingly I would issue a writ of habeas corpus, directing that the petitioner Ishwar Singh be set at liberty forthwith.