THE HONOURABLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.23217 of 2009 ORAL ORDER: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard the learned counsel appearing for the petitioner as well as the learned Assistant Government Pleader, representing the learned Advocate General, appearing for the respondents. 2. This writ petition is filed by one Singam Malla Reddy seeking to issue a writ of Habeas Corpus directing the respondents to produce his father, Convict No.9759, and set him at liberty as his detention is illegal and void, as he is entitled to the benefit under G.O.Ms.No.338 Home (Prison-C) Department, dated 24.07.2009. 3. It appears, the father of the petitioner is undergoing imprisonment in Central prison, Kadapa, pursuant to the order of conviction in S.C.No.375 of 1997, passed by the III Additional Sessions Judge (Fast Track Court), Kadapa, for the offence punishable under Section 302 I.P.C., which, on appeal, Criminal Appeal No.928 of 2007, is confirmed by this Court. 4. The first respondent issued G.O.Ms.No.338 Home (Prison-C) Department, dated 24.07.2009, granting remission of sentence to certain categories of life convicts on the occasion of Independence day, 2009. 5. One of the conditions in the said G.O., which is cited as relevant for this case, is extracted, for ready reference, hereunder: - “All the convicted prisoners sentenced to imprisonment for life including those governed by Section 433-A of the Code of Criminal procedure, 1973 (Central Act 2 of 1974) aged more than 65 years and have undergone an actual sentence of 5 years and total sentence of 7 years including remission as on 15.08.2009.” 6. Now, it is the contention of the learned counsel appearing for the petitioner that the father of the petitioner is aged more than 70 years as on 15.08.2009. It is his further contention that in the warrant of commitment, the age of the convict was wrongly mentioned as 57 years instead of his correct age. 7. According to the learned counsel appearing for the petitioner, the date of birth of the father of the petitioner is 10.07.1939, and, in support of the said contention, he relied on the date of birth certificate, (extracted from School-records), issued by the Head Master, Chinthalajuturu, Vemula Mandal, Kadapa Distrcit, and the age certificate issued by the Department of Forensic Medicine and Toxicology, Rajiv Gandhi Institute of Medical Sciences, Kadapa, as per which the father of the petitioner has completed more than 70 years, as on 15.08.2009, and, therefore, he is entitled to the benefit of remission of sentence under the said G.O. He further pointed out that the department of Forensic Medicine and Toxicology, which is a department of Government itself, examined the convict and issued age certificate, dated 27.04.2009, in A.D.No.8/09, opining the age of the convict as about 70 years. 8. Further, it is pertinent to note that the said certificate was issued at the requisition and reference made by the jail authorities themselves. 9. The above two documents i.e., Certificate of date of birth and the certificate issued by the Department of Forensic Medicine and Toxicology show that the convict is aged about 70 years, as on the date of issuance of the said G.O., and therefore, he is entitled to the benefit of remission of sentence as postulated under the said G.O. 10. If one goes by the age furnished by the convict, the father of the petitioner i.e., Convict No.9759 would be aged about 57 years as on the date of warrant of commitment. 11. What is to be noted, at this juncture, is that the age of the accused or the convict, as the case may be, will be recorded not as per the information furnished him, at the time of committal, but it will be as per the charge sheet and the same will be taken into account for all purposes. There is no clear law on this subject. 12. The general practice is that the age of the accused will be noted by the Police at random, but not after strict scrutiny of the relevant material regarding the age. Perhaps, that may not be very relevant at the time of filing the charge sheet. Therefore, much significance will not be attached by the Police to this aspect. However, the same would become very relevant only on the occasions like the present one. 13. Therefore, the age of the prisoner as was noted by the Court, or the investigating officer. at the time of filing the charge sheet, need not necessarily be correct. Further, it is also to be noted, as regards the age, that except for the purpose of treating the accused as juvenile, the age will not be a serious issue to be looked into and therefore, there will not be any scope for the Court or the investigating agency to go deep into the matter. More over, there would not be any opportunity to the accused or the convict, as the case may be, to rebut to the entry regarding his age. 14. In such circumstances, what is to be seen in the present context is that the jail authorities themselves had referred the convict to the department of Forensic Medicine and Toxicology, on his representation, in order to fix his age and the said department, having examined the convict, arrived at the conclusion that his age would be about 70 years as on 27.04.2009 and also issued a certificate to that effect. Even if there is any error in the said certificate, it may be only marginal, may be a couple of years either way. 15. Similarly, even as per the date of birth certificate, dated 07.07.2009, issued by the Head Master, Chinthalajuturu, Vemula Mandal, Kadapa Distrcit, the age of the convict is more than 70 years. 16. Of course, despite these two apparently very convincing and authenticated documents, there is no prescribed procedure laid down to determine the age of the convict for the purpose of extension of the benefit of remission of sentence as per the G.O., like the present one. 17. Though in strict sense, it is only the age of the convict that has been mentioned in charge sheet, and as mentioned in the committal warrant, will be taken into consideration for all purposes. It is not, in fact, for this Court to go deep into the matter of age of the convict for the purpose of examination of the issue as regards the extension of the benefits under the said G.O. 18. At the same time, this Court cannot be a silent spectator when there is something very satisfactory and convincing record on hand as regards the age of the convict for the purpose of extension of the benefit of remission of sentence under the said G.O. 19. In the absence of any particular procedure or law on such controversial issues, it is only the principles of equity that can be made applicable. 20. For the foregoing discussion and also having regard to the facts and circumstances, we feel it appropriate to dispose of this writ petition giving liberty to the petitioner to make representation to the first respondent in this regard, upon which, the respondents shall consider the same, with reference to his age as on 15th August 2009, in order to extend the benefit of remission of sentence given in G.O.Ms.No.338, dated 24.07.2009, keeping in view the date of birth certificate and the age certificate issued by the Forensic Medicine and Toxicology in respect of the father of the petitioner and pass appropriate orders, in order to meet the ends of justice, within a period of four weeks from the date of receipt of the representation. 21. With the above observations and directions, the writ petition is disposed of, at the stage of admission. However, there shall be no order as to costs. _____________________ JUSTICE D.S.R.VARMA _______________________ JUSTICE R.KANTHA RAO 16th DECEMBER 2009 DR