Sampuran Singh vs State of Punjab

M.M. Punchhi, J.

The petitioner is a life convict. He was awarded life sentence under three counts by the Additional Sessions Judge, Solan, Himachal Pradesh, vide judgment and order dated 28.6.1978. The petitioner was committed to prison in the State of Himachal Pradesh. Later under Section 3(2) of the Transfer of Prisoners Act, 1950, he was transferred to the State of Punjab presumably because he was a resident of the State of Punjab. He has approached this court for grant of the following reliefs :

For determination and declaration as to which Government i.e. the Himachal Pradesh Government or the Punjab Government, should exercise the power for remission of sentence under Section 432 of the Code of Criminal Procedure.

For declaration that he was below 20 years of age on the date of the commission of the offence and as such his case would be governed on the principle that he was an offender of less than 20 years of age entitling him to have his premature release case initiated and decided after the lapse of six years actual sentence and ten years sentence inclusive of remission, as to offenders above 20 years of age, a different scale applies i.e. 81/2 years actual sentence and 14 years sentence inclusive of remissions.

So far as the first point is concerned, the answer is available in subsection (7) of Section 432 of the Code of Criminal Procedure which reads as under :

"In this section and in Section 433, the expression "appropriate Government" means

(a) in cases where the sentence is for an offence against, or the order referred to in subsection (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed."

So the appropriate Government in the instant case would be the Government of Himachal Pradesh who would be empowered to exercise powers under Section 432 of the Code of Criminal Procedure. Even otherwise, in their returns, the Punjab Government has specifically disowned responsibility for deciding such a matter and the State of Himachal Pradesh has specifically owned responsibility to do the needful in the matter at an appropriate time. Thus it is determined and declared that it as the State of Himachal Pradesh who would exercise powers under Section 432 of the Code of Criminal Procedure in the case of the petitioner.

With regard to the age, the State of Himachal Pradesh in paragraph 10 of its return taken the stand that the age of the petitioner on the date of the commission of the offence, as recorded by the police, was 22 years, which age had been recorded by the learned trial Judge in his judgment. The copy of the judgment which has been shown to me does reflect that in the array of the parties, the age of the petitioner has been shown as 22 years. However, nothing in the body of the judgment is suggestive of the fact that question of age was over gone into. There seemingly was no issue in that regard. So, ex facie on the judgment, there is no finding on the age of the petitioner except descriptively given in the array of the parties.

Another step which normally is taken is that when the convict is sent to the prison, there under the relevant rules a doctor is required to determine the age of the convict. Presumably, such a step was taken in the Himachal Pradesh at the appropriate time. The record presently is silent on the point as to what was the age of the petitioner then recorded. However, on behalf of the petitioner, it has been strenuously urged that on 14.5.1983 when the petitioner was transferred to Punjab, the jail doctor examined him for purpose of age and recorded his age as 26 years. By the process of subtraction it has been urged that on 22.11.1975 when the offence took place, the petitioner was 181/2 years of age. The age thus recorded by the Punjab Jail doctor and the age as descriptively given in the judgment are urged by the learned Counsel for the petitioner to be enough to settle the age of the petitioner as less than 20 years on the date of the commission of the offence. And in support thereof, AIR 1982 Supreme Court 1391 (Shri Niwas and others v. Delhi Administration and others) has been pressed into service to contend that these are the only two relevant factors.

Paragraph 1 of the judgment in Shri Niwas''s case (supra) deals with the point. It is plain therefrom that that the cases of the petitioners given in the list there were recommended for premature release by the Superintendent of Jail on the premises that the convicts were below 20 years of age on the date of the commission of the offence. The delay in the decision of the case regarding age was being caused by the Sentence Revising Board. The Supreme Court was informed that the ready material for the purpose was obviously the judgment of the trial Court where the age of each of the convict must have mentioned and secondly when those convicts were admitted to jail, the doctor under the relevant rule must have noted the age of each one of them. On existence of such material, the Court took the view that delay in disposal of premature release cases of the convicts required a mandamus to be issued for their release forthwith, leaving it open to the jail administration to move the Court against for appropriate orders in the event of an ascertainment that a particular convict was above 20 years of age. The decision taken in that case can hardly be called a precedent for the purpose that in all events the given age in the judgment of the trial Court and the opinion recorded by the jail doctor on commitment to prison are the sole guiding factors for determination of age. Most often than not, it is hardly a contentious issue. But whether contention is raised, the determination in that regard has first to be that of the State Government, unless the judgment of the trial Court is explicit on the point; the contention having been raised and it having been disposed of after taking into consideration all relevant material. Here, as said before, the judgment of the trial Court is silent on the point. Thus, inevitably it is the State Government and to be precise the State of Himachal Pradesh, who has to determine the age of the petitioner on the date of the commission of the offence. Thus, I am of the considered view that the petitioner cannot get the declarations, as asked for, on the question of age from this Court on this scanty material.

For the foregoing reasons, the petition falls and is hereby dismissed. It is, however, ordered that the State of Himachal Pradesh may determine the age of the petitioner forthwith lest he be a case falling in the category of offenders below 20 years of age at the time of the commission of the offence.