Judgment A.N.MUKHARJI, J. 1. This application under Articles 226 and 227 of the Constitution of India is directed against a notice issued by the Sessions Judge of Dhanbad asking the petitioner to surrender before him at once for undergoing the remaining period of sentence imposed against him. 2. The facts giving rise to this application are that this petitioner was convicted by the Sessions Judge of Dhanbad under Sec.326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six years on the 2nd of June, 1970 in Sessions Case No. 31/69. The petitioner preferred an appeal before this Court, which was numbered as Criminal Appeal No. 276 of 1970. This Criminal Appeal was disposed of by a learned Single Judge of this Court on the 23rd of September, 1974, wherein the conviction of the petitioner under Sec.326 of the Indian Penal Code was maintained but the sentence was reduced to a period of two years only. 3. Mrs. Jyoti Narayan, learned Counsel appearing on behalf of the petitioner, contends that this petitioner was taken in custody on the 16th of July, 1968 in connection with the criminal case in which he was convicted by the learned Sessions Judge. The petitioned was thus in Jail custody for a period of 22 months and 16 days when the Sessions Judge convicted, him under Sec.326 of the Indian Penal Code on the 2nd of June, 1970. The petitioner filed an appeal being Criminal Appeal No. 276 of 1970 before this Court and he was directed to be released on hail on the 9th of July, 1970. The petitioner was actually released on bail on the 14th of August, 1970. So the petitioner had already undergone a sentence of two months and twelve days after the conviction was recorded by the learned Sessions Judge of Dhanbad. 4. The petitioner has now received a notice from the Sessions Judge of Dhanbad asking him to surrender immediately before him for undergoing the remaining part of the sentence imposed against him. Mr. Narayan contends that this notice which has been served on the petitioner by the Sessions Judge for undergoing the remainder of the term of imprisonment is bad in law. His contention is that by the Judgement of appellate Court in Cr. Appeal 276/70 the sentence imposed against him by the Sessions Judge of Dhanbad had been reduced to two years only. His contention is that by the Judgement of appellate Court in Cr. Appeal 276/70 the sentence imposed against him by the Sessions Judge of Dhanbad had been reduced to two years only. From the report received from be Superintendent, District Jail, Dhanbad it is manifest that this petitioner was in Jail custody from 16th July, 1968 to 2nd of June 1970 prior to his conviction by the Session judge of Dhanbad and so by operation of Sec. 428 of the Code of Criminal Procedure, 1973 this petitioner is entitled to get a set off for the period already in Jail custody prior to his conviction from the terms of imprisonment imposed against him by the appellate court. It, however, transpires that after the admission of the appeal by this Court, the petitioner was in Jail for a period of two months and twelve days prior to the release on the bail. So it is manifest that the petitioner has undergone imprisonment for a period of two months and twelve days after the conviction recorded by the learned Sessions Judge of Dhanbad. This was the maximum imprisonment which the petitioner had to suffer taking into consideration the period during which he was already in Jail prior to conviction by the trial Court. In these circumstances, the learned Sessions Judge of Dhanbad was not justified in directing the petitioner to surrender for undergoing the remaining period of sentence, as it should be deemed that he has already undergone the sentence imposed against him taking into consideration the set off for the period he was in Jail custody prior to his conviction and the period he has undergone the sentence after the conviction was recorded. 5. In view of what has been observed above, this application is allowed. The notice of the Sessions Judge of Dhanbad directing the petitioner to surrender before him for undergoing the remaining period of sentence against him is accordingly quashed. MUNESHWARI SAHAY, J. 6 I agree.