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1989 DIGILAW 303 (BOM)

Vishram v. State of Maharashtra

1989-10-09

H.W.DHABE, M.B.GHODESWAR

body1989
JUDGMENT (ORAL) H.W. Dhabe, J. - The petitioners have preferred the instant Writ Petition for a direction to the State Government to release them forthwith because according to them, after counting the total period during which they were undertrial prisoners, they have completed the sentence awarded by this Court. 2. Briefly, the facts are that the petitioners were the accused Nos. 2 and 5 respectively in the Sessions Case No. 25 of 1971 before the Additional Sessions Judge, Khamgaon in which 11 persons including the petitioners before us were charged for the offences punishable under Section 302, 325, 449, 323, 341 and 148 read with Section 149 or Section 34 of the Indian Penal Code. The petitioners were arrested for the said offences on 10-12-1970. The Additional Sessions Judge, Khamgaon by his judgment rendered on 24-21972 in the aforesaid sessions case convicted the petitioners for an offence under Section 325 I.P.C. and acquitted them of the other offences with which they were charged. For the offence under Section 325 I.P.C., he sentenced them to 2 years R.I. The petitioners continued in jail after their conviction under Section 325 I.P.C. and after getting certain remissions as per rules they were released in July 1973 by undergoing an actual punishment of 1 year 5 months. It is pertinent to see that the above conviction was prior to the new Criminal Procedure Code (for short, the Cr. P.C.) which came into force with effect from 1-4-1974. Under the old Code, there was no provision like Section 428 of the new Code under which the period during which the accused was in prison as an undertrial prisoner could be counted in calculating his total period of sentence. Therefore, the petitioners did not get the benefit of the period from the date of their arrest i.e. 10-12-1970 till the judgment of the Sessions Judge i.e. 24-2-1972 which is a total period of 1 year 2 months 14 days in calculating their sentence of 2 years under Section 325 I.P.C. under which they were convicted by the Sessions Judge. 3. After the judgment of the learned Sessions Judge, the State filed an appeal against the acquittal of the petitioners and others under Section 302 I.P.C. read with Section 34. 3. After the judgment of the learned Sessions Judge, the State filed an appeal against the acquittal of the petitioners and others under Section 302 I.P.C. read with Section 34. The said appeal was decided by a common judgment delivered by the Division Bench of this Court on 10-12-1973 alongwith Criminal Reference No. 32 of 1972 and Criminal Revision Application No. 100 of 1972 arising out of the same sessions case. This Court, by its aforesaid judgment, partly accepted the appeal of the State Government. Instead of Section 325 I.P.C., this Court convicted the petitioners under Section 304 Part II read with Section 34 I.P.C. and for the said offence, sentenced them to 4 years R.I. instead of 2 years as awarded by the learned Sessions Judge for the offence under Section 325 IP.C. This Court, then directed by its aforesaid judgment that warrants should be issued against the petitioners for undergoing the sentence under Section 304 Part II awarded by this Court. Although the judgment is rendered on 10-121973, the State Government actually issued the warrants for arrest of the petitioners on 25-1-1989 requiring them to remain present before the Additional Bessions Judge, Khamgaon on 9-2-1989. They were however actually arrested and taken into custody for undergoing the remaining sentence as per the aforesaid judgment of this Court in May 1989. Since then, they are undergoing the sentence for an offence under Section 304 Part II of the I.P.C. as directed by this Court. Feeling aggrieved, the petitioners have preferred the instant Writ Petition. 4. The only contention raised on behalf of the petitioner is that the petitioners are entitled to the benefit of Section 428 of the New Code. In support of the above contention, the learned Counsel for the petitioners has relied upon the decision of the Supreme Court in the case of Mr. Boucher Pierre Andrs v. Superintendent, Central Jail, Tihar, New Delhi and another1, which according to the petitioners, concludes the question of interpretation of Section 428 of the New Code in their favour. The Supreme Court has held in para 2 of its judgment cited supra that Section 428 of the New Code embraces cases where a person has been convicted before the coming into force of the New Code, whose sentence is still running at the date when the new Code has come into force. The Supreme Court has held in para 2 of its judgment cited supra that Section 428 of the New Code embraces cases where a person has been convicted before the coming into force of the New Code, whose sentence is still running at the date when the new Code has come into force. It has observed that if the accused has already undergone the whole sentence prior to the coming into force of the new Code, he may not get the benefit of Section 428, but in case his sentence is continuing on the date when the new Code came into force, he would be entitled to the benefit of Section 428. Looking to the question from another angle, it has held in para 3 of the judgment cited supra that by the saving clause (b) of sub- Section (2) of Section 484 of the new Code, sub-Section 1 of which repeals the old Code, all sentences passed under the old Code and which are in force immediately before the commencement of the new Code are deemed to have been passed under the corresponding provisions of the new Code and therefore, the provisions of Section 428 of the new Code would be applicable as if the accused has been sentenced under the new Code. The above ratio of the decision of the Supreme Court would squarely Cover the instant case. 5. It may be seen that the conviction of the petitioners for an offence under Section 304 Part II of the I.P.C. is as per the judgment rendered by this Court on 10-12-1973 which is prior to the coming into force of the new Code. However, as per the ratio of the decision of the Supreme Court cited supra, the said sentence will have to be deemed to be passed under the new Code after it came into force on 1-4-1974 as a result of which the benefit of Section 428 of the new Code would be available in the case of the petitioners. On facts, we have already pointed out that the petitioners were under-trial prisoners during the period from the date of their arrest on 10-12-1970 to the date of their conviction by the learned Additional Sessions Judge on 24-2-1972. On facts, we have already pointed out that the petitioners were under-trial prisoners during the period from the date of their arrest on 10-12-1970 to the date of their conviction by the learned Additional Sessions Judge on 24-2-1972. This period will therefore have to be counted while counting the 2 years remaining term for the offence under Section 304 Part II of the I.P.C. which they have to undergo as per the judgment of this Court. 6. In the result, the instant Writ Petition is allowed. The respondents are directed to give the benefit of Section 428 of the new Code of Criminal Procedure to the petitioners and take into account the period during which the petitioners were under-trial prisoners and calculate their remainder term of 2 years for the offence under Section 304 part II of the I.P.C. by giving them the benefit of the above period during which they were undertrial prisoners. Rule made absolute in the above terms. Copy of the above order be sent to the Additional Sessions Judge, Khamgaon. Petition allowed. 1. A.I.R. 1975 S.C. 164.