Mohinder Pal vs State of Punjab

B.S. Yadav, J.

The facts leading to this writ are that Mohinder Pal was convicted by the learned Additional Sessions Judge Gurdaspur, on December 24, 1976, and was sentenced to undergo imprisonment for life. He was also convicted under sections 323 and 324 both read with section 34 of the Indian Penal Code but the sentences awarded for those offences were short ones and were ordered to run concurrently with the sentence of imprisonment for life. Petitioner''s appeal against his convictions and sentences met with no success. At the time of recording conviction of the petitioner, he had mentioned his age as 17 years but the learned Judge recorded that he was 21 years of age by appearance. When the petitioner was sent to jail after his conviction, the Medical Officer of the jail examined him under Para 123 of the Punjab Jail Manual and he found him (i.e. the petitioner) of the age of 17 years.

The petitioner''s case is that he was below 20 years of age at the time of his conviction and on that account he was sent to Borstal Jail on three occasions and thereafter he was transferred to Amritsar Jail or, medical grounds. According to him, he has completed a period of imprisonment of 12 years 1 month and 20 days including remissions and under section 516B of the said Manual he was entitled to have his case of pre mature release reconsidered by the State Government. It is also alleged in the petition that the Jail Superintendent did not forward his case of premature release as he was not considering him below 20 years at the time of commission of the offence and is demanding proof regarding his age.

In this petition the petitioner prays for issuance of a writ of Habeas Corpus holding that his further detention without considering his premature release case is illegal and he is entitled to be released after completion of 10 years of imprisonment including remissions. It is further played that he released on bail during the pendency of his premature release case,

In reply filed by the State the allegation of the petitioner about his examination by the medical Officer of Jail is admitted. It is also stated that the petitioner has undergone 11 years and 7 months imprisonment including remissions. It is, however, alleged that the petitioner''s case for his premature release was not initiated by the Superintendent of Jail, Amritsar. because he could not produce valid proof to the effect that he was less than 20 years of age at the time of the commission of the offence.

The learned counsel for the petitioner argued that in the present case only dispute is about the age of the petitioner and in case he is proved to be below 20 years of age at the time of commission of the offence, he is entitled to have his premature release case considered after he had undergone 11 years imprisonment including remissions. It was argued that the Medical Officer of the Jail at the time of the admission of the petitioner had examined him and recorded his age as 17 years and the filing recorded by the learned Sessions Judge about his age merely on the basis of his appearance cannot be taken as correct. In support of his contention he has quoted Raisul v. State of U.P. AIR 1977 Supreme Court 1822. Their Lordships remarked as follows :

"The offence was committed on 13th August, 1970, and on 1st July 1971, when the appellant was examined under section 342 of the Code of Criminal Procedure he stated that his age was 18 years. The appellant must, therefore clearly have been below the age of 18 years on the date when he committed the offence. It is true that the learned Sessions Judge on looking at the appellant thought that he must not be less than 24 years of age, and the High Court also, on seeing the appellant personally took the view that the estimate of age given by the Sessions Judge was correct, but we do not think that the learned Sessions Judge as well as the High Court were right in substituting their own estimate, in regard to the age of the appellant and on the basis of such estimate, rejecting the statement as to his age made by the appellant. Appearances can often be deceptive. We must, therefore, proceed on the basis that the appellant was below 18 years of age when she committed the offence."

The above ruling clearly supports the petitioner.

It has not been disputed on behalf of the respondents that in case the petitioner''s age is to be taken below 21 years then he was entitled to be considered for pre mature release. The learned counsel for the petitioner has cited Shri Niwas and others v. Delhi Administration and others, A.I.R. 1982 Supreme Court 1391 whereby that judgment their Lordship disposed of many petitions of similar nature. Some of the petitions had been filed by convicts who were below 20 years or age at the time of commission of the offence. About the convicts who were below 20 years of age at the time of the commission of the offence, their Lordships issued a writ mandamus directing that the convicts should be forthwith released with a direction that in care on ascertainment of proof of age it was discovered that the convicts was not below 20 years of age on the date of commission of the offence, it would be open to the State to move the Court in that behalf and appropriate orders might be issued. However, in that case the Superintendent, of Jail had recommended the case of the convicts for release on their completion of 20 years imprisonment inclusive of remissions. In the present case there is no such recommendation of the Superintendent of Jail. Following the rule laid down by their lordships of the Supreme Court in the above said case. I direct, the respondents to consider and dispose of the petitioner''s case for premature release within a period of 3 months from today. If for some reasons it is not disposed of at the expiry of that period the petitioner shall stand released on bail to the satisfaction of the Chief Judicial Magistrate Gurdaspur. In case ultimately the State takes a decision adverse to the petitioner, it will be open to the petitioner to challenge that decision in appropriate proceedings and it will also be open to the authorities concerned, if they are so advised, to apply for cancellation of bail.

The petitioner has also prayed for bail till his premature release case is decided. However, I do not find any ground to grant bail to him at this stage.

The present petition is disposed of in the light of the above observations and directions.