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(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.

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. "

(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.