H.K.SANDHU, J. - (1.) 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.
(2.) 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.
(3.) 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.;