Gursharan Singh vs State of Punjab

H. K. Sandhu, J.

Gursharan Singh petitioner was tried for an offence under Section 302 of the Indian Penal Code alongwith others by Additional Sessions Judge, Amritsar who convicted him vide his order dated 23.4.1988 and sentenced him to undergo imprisonment for life. The appeal filed by the petitioner against his conviction and sentence was dismissed by this Court on 13.7.1990. The petitioner was arrested in the aforesaid case on 25.11.84 and he remained as an under trial prisoner till 23.4.88. After conviction when he filed an appeal, he was released on bail during the pendency of the appeal and he remained on bail from 2.6.88 to 23.11.90. While recording conviction and sentence, the Additional Sessions Judge, Amritsar found that the petitioner was aged 19 years on 23.4.88. The Jail authorities also considered the age of the petitioner as 19 years at the time of his conviction. In this way when the offence was committed on 25.11.84, the petitioner was less than 16 years of age. When statement of the petitioner was recorded under Section 313 of the Code of Criminal Procedure, a few days before his conviction the petitioner gave his age as 19 years and this age was never disputed.

The petitioner alleged that as he was less than 16 years of age at the time of the commission of the offence, the provisions of East Punjab Children Act, 1949 (the Act for short) were applicable to him at the date of his conviction. Section 3(c) of the Act defined a child as a person under the age of 16 years and when used with reference to a child sent to a certified school applied to that child during the whole period of his detention, notwithstanding that the child may have attained the age of 16 years. Section 27 of the Act reads as under :

"Notwithstanding anything to the contrary contained in any law, no person who was a child at the date of the commission of the offence shall be sentenced to death or transported or committed to prison for any offence or in default of payment of fine, damages or costs.

Provided that a child who is fourteen years of age or upwards may be committed to prison where the court certified that he is of so unruly or of so depraved character that he is not fit person to be sent to a certified school and none of the other methods in which the case may legally be dealt with is suitable."

When a child is found to have committed an offence of so serious in nature that the court is of the opinion that no punishment under the provisions of this Act, it is authorised to inflict is sufficient, the court shall order the offender to be kept in safe custody in such place or manner as it thinks fit and report the case for orders of the State Government. It is so provided in Section 34 of the Act. The petitioner contended that as he was a child at the time of commission of the offence, his case should have been deal with under Section 34 of the Act for determining the period of detention by the State Government but the Court concerned had not done so. He has thus filed the present petition under Section 482 of the Code of Criminal Procedure praying for the relief of sending his case to the State Government under Section 34 of the Act for determining the period of his detention.

In the return filed by the respondent, it was contended that although age of the petitioner was given as 19 years on 23.4.88 when he was convicted by the Additional Sessions Judge, this fact was not mentioned in the judgment that the petitioner was below 16 years of age at the time of commission of offence on 25.11.1984. It was, however, conceded that in case the petitioner was found below 16 years of age at the time of commission of offence, then provisions of the Act were applicable to him and his case was liable to be referred to the Government for taking action under the provisions of the Act.

1 have heard the learned counsel for the parties and have perused the record.

There is no denial of the fact that the occurrence which resulted in the conviction of the petitioner took place on 25.11.1984. After trial the petitioner was convicted on 23.4.1988 and at that time his age was mentioned as 19 years. In this way, the petitioner less than 16 years of age at the time of commission of the offence.

The learned counsel for the State contended that there was no definite evidence on record regarding the age of the petitioner and when he was charged for an offence under Section 302/34 of the Indian Penal Code on 12.2.1986, he gave his age as 17 years as disclosed by the chargesheet copy of which is Annexure P5. If calculated on the basis of the age given in the chargesheet, the petitioner was more than 19 years of age on the date of his conviction. This contention of the learned counsel, however, is without any merit because the age of the petitioner, which is relevant for the purpose of applicability of the Act is his age at the time of commission of the offence. Even if the petitioner was 17 years of age when he was chargesheeted on 12.2.1986 he was less than 16 years of age on 25.11.1984 when the incident took place. The definition of the word "child" as given in the Act means a person under the age of 16 years. The petitioner was thus less than 16 years of age at the time of the commission of the offence.

Section 34 of the Act provided that if a child committed an offence of serious nature and the court was of the opinion that no punishment provided under the provisions of the Act was sufficient under the circumstances of the case and that the offender should be kept in a safe custody, then the court was required to make a reference to the State Government for determining the manner, place and extent of such custody. It was urged on behalf of the petitioner that section 34 of the Act was a specialy provision which pertained to a child offender who was found to have committed an offence of serious and in such cases the court has to order the offender to be kept in safe custody and to report the case for the order of the State Government. Reliance was placed in this behalf on the case of Gulzar Singh v. State of Punjab, 1979 PLR 477 and Criminal Writ No. 1073 of 1990 Gurbax Singh v. State of Punjab decided by this court on 20.7.1990.

As the petitioner was less than 16 years of age at the time of the commission of the offence, a reference was required to be made to the State Government under Section 34 of the Act for determination of period of detention, So placing reliance on the above mentioned authorities I accept this Writ Petition and direct the State Government to determine the period of detention of the petitioner under Section 34 of the Act within three months of this order failing which the petitioner shall be released on his furnishing requisite bonds to the satisfaction of District Magistrate Amritsar undertaking to surrender before the authorities if the State Government determined the period of his detention beyond the period of imprisonment which he has already undergone. The Writ Petition stands disposed of accordingly.