A writ of habeas corpus is not maintainable against a final judgment of a criminal court, including the High Court itself.

S.S.SANDHAWALIA, J.

1. Whether a convict undergoing imprisonment under the judgement of a criminal court, which has achieved finality, can prefer and maintain a writ of habeas corpus to assail his detention, is the pristinely legal question which provides the common link in this chain of four Criminal Writ Petitions, which are before us on a reference.

2. The issue of law being identical and the facts closely similar, the learned counsel for the parties agree that this judgement will govern all these case. It, therefore, suffices to advert to the matrix of facts in Crl. W.P. No. 45 of 1980 (Bohar Singh V/s. State of Punjab and another). The petitioner therein was tried along with others on the charge of murder and other allied offences and being convicted therefor was sentenced to imprisonment for life by the judgement of the learned Sessions Judge, Forezepore, dated April 3, 1975. He preferred Criminal Appeal No. 496 of 1975 jointly with his co-accused, which was dismissed by a Division Bench of this Court on July 27, 1978. No further appeal was carried to their Lordships of he Supreme Court and in accordance with the aforesaid judgement the petitioner was detained in various jails in he State.

3. More than five years after the date of the original conviction, the present writ petition has been preferred on April 21, 1980 seeking a writ of habeas corpus against what is alleged to be an illegal custody of the petitioner. The primary ground set out therefor is that on the date of the commission of the crime on September 30, 1974, the petitioner was less than 16 years of age and therefore, came within the definition of child under the East Punjab Children Act, 1949 (hereinafter called the Act.) and consequently Section 27 of the said Act bars the imposition of a sentence of imprisonment for life on him. This claim is rested solely on the ground that in his statement made under Section 313 of the Code of Criminal Procedure, 1973, in the Court of Session, the petitioner stated his age as 15 Years. The assessment of the petitioners age having been not accepted prima facie, he was got medically examined by Dr. S.K. Gupta P.W. 1, who opined that his age on the date of the examination was about 17 years. This opinion, is now belatedly attempted to be challenged on the ground that the same did not rest on a solid clinical basis or any ossification test. However, it is the admitted position, that even though the petitioner was represented by a counsel in the criminal trial, at no stage thereof was any claim made on his behalf that the provisions of the Act would be applicable to him. So much so that even when expressly heard on the point of sentence not a hint of such a ground was urged before the trial court. Equally it is the common case that in the criminal appeal, filed in this Court, wherein again the petitioner was represented by a counsel, such an issue was not even remotely raised either in the grounds of appeal or in the course of arguments. As already noticed no special leave petition against the dismissal of the petitioners appeal was preferred to their Lordships of the Supreme Court.

4. It is the petitioners claim that the burden lay on the prosecution to bring on the record definite evidence that the age of the petitioner, at the time of the commission of the offence was more than 16 years and to show why he had not been dealt with under the Act. This having allegedly not been done by the prosecution, it is the case that both the trial of the petitioner by the Court of Session as also the sentence of imprisonment for life imposed upon him, in the alleged violation of Section 27 of the Act, are wholly void.

5. It calls for pointed notice that not even an affidavit in support of the government in the writ petition has been filed on behalf of the writ petitioner on the ground that he is confined in jail. Nevertheless on the aforementioned premises a writ of habeas corpus is sought for setting him at liberty from the al