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2009 DIGILAW 1212 (PNJ)

Naveen Sharma v. State of Haryana

2009-07-21

HARBANS LAL

body2009
JUDGMENT Harbans Lal, J. - Should bail period be counted towards sentence ? 2. This petition has been moved by Naveen Sharma under Section 482 of the Code of Criminal Procedure (for brevity, the Code) read with Articles 226/227 of the Constitution of India seeking his release from the jail by counting the under trial period of his detention from 8.2.1992 to 20.10.1992 by way of set off under Section 428 of the Code towards the sentence of imprisonment undergone both actual as well as total in case FIR No. 20 dated 14.1.1991 under Sections 302/148 read with Section 149 of Indian Penal Code and 25, 27 of the Arms Act, Police Station Yamuna Nagar (hereinafter to be referred as the first case). 3. The brief facts giving rise to this petition are that the petitioner was arrested by the police on 8.2.1991 in the first case alongwith three co- accused. He was released on bail in this first case on 23.3.1991 pending his trial. While on bail, he was falsely involved in another case bearing FIR No. 2 of 1992 under Sections 323, 324, 307 read with Section 34 of Indian Penal Code, Police Station Jagadhri (hereinafter to be called as the second case). He was arrested in the second case on 8.2.1992 and remained confined in the Central Jail, Ambala upto 20.10.1992. During this interregnum, he was being produced through production warrant in the first case as well, as is manifest from the copies of the zimni orders dated 10.3.1992, 9.6.1992, 24.7.1992 and 23.10.1992 (Annexures P.2 to P.5) passed by the learned trial Court in the first case, wherein, vide judgment dated 23.12.1995, he along with three co-accused was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/- under Section 304(II) of Indian Penal Code and in default of payment of fine, the defaulter was to further undergo rigorous imprisonment for six months. On appeal to this Court, the sentence was reduced from seven years to one year and the fine was enhanced to Rs. 30,000/- vide order dated 6.1.2009. He has deposited this amount of fine. In the second case, he was acquitted of the charge by the learned trial Court vide order dated 24.2.1997. The State did not prefer appeal there-against. Thus, the same has attained finality. 30,000/- vide order dated 6.1.2009. He has deposited this amount of fine. In the second case, he was acquitted of the charge by the learned trial Court vide order dated 24.2.1997. The State did not prefer appeal there-against. Thus, the same has attained finality. He remained lodged in the aforesaid jail as an under-trial prisoner from 8.2.1991 to 23.3.1991 (i.e., 1 month and 15 days) and, thereafter from 8.2.1992 to 20.10.1992 (i.e., for 8 months and 12 days in the second case.). Also, he remained in jail from 23.12.1995 to 23.2.1996 (i.e., two months) when he was convicted in the first case. He surrendered before the learned Chief Judicial Magistrate, Jagadhri on 4.4.2009 when his sentence was reduced to one year by this Court. The respondents have counted the under trial period of detention of the petitioner by way of set off under Section 428 of the Code towards his sentence undergone in the first case only from 8.2.1991 to 23.3.1991, but refused to count the period from 8.2.1992 to 20.10.1992. The denial to count the period from 8.2.1992 to 20.10.1992 is illegal, arbitrary and utter disregard of statutory provisions, rules and law. The petitioner has already undergone more than one year of the actual sentence of imprisonment in the jail including the under-trial period of detention besides the remissions. In this way, he has undergone the period more than sentence awarded to him and now he is in illegal custody of respondents No. 2 and 3. 4. In the reply, it has been admitted that on appeal, vide order dated 6.1.2009, the sentence of imprisonment has been reduced to one year. The petitioner is undergoing one year rigorous imprisonment in Central Jail, Ambala in case FIR No. 20 ibid. Previously, he was admitted in the said Jail, as an under-trial prisoner on 21.1.1992 in case FIR No. 251 dated 23.5.1989 under Sections 341/323/506 Indian Penal Code Police Station, City Yamuna Nagar by the order of learned Additional Chief Judicial Magistrate, Jagadhri and he was acquitted in the above said case on 20.3.1992. The petitioner is not entitled for benefit of under-trial period with effect from 8.10.1992 to 20.10.1992 as at that time, he was already on bail in case FIR No. 20 ibid. 5. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 6. The petitioner is not entitled for benefit of under-trial period with effect from 8.10.1992 to 20.10.1992 as at that time, he was already on bail in case FIR No. 20 ibid. 5. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 6. Learned counsel for the petitioner eloquently urged that although the petitioner was on bail in the first case during the period from 8.10.1992 to 20.10.1992, nonetheless, as would be apparent from the zimni orders Annexures P.2 to P.5, he was being produced through production warrants in that case also during the said period. That being so, this period of 8 months and 12 days ought to be counted towards the sentence awarded in the first case. By taking into consideration the remissions granted to the petitioner, it turns out that he is in illegal custody. To buttress this stance, he has sought to place abundant reliance upon the observations made in re : State of Maharashtra v. Najakat Alia Mubarak Ali, 2001(2) RCR(Criminal) 778 and Baldev Singh v. State of Punjab, 1985 RCR (Criminal) 634. 7. The learned State Counsel countered this argument by submitting that the period during which the petitioner remained on bail in the first case, by no stretch of speculation can be counted towards his sentence. To drive home the point, he has referred to Joginder Singh v. State of Punjab, 2001(4) RCR(Criminal) 341. 8. I have given a deep and thoughtful consideration to the rival contentions. In re : Najakat Alia Mubarak Ali (supra), an accused was convicted and sentenced to imprisonment in two criminal cases. As he was arrested on the same day in connection with both the cases, he remained in jail as an under trial prisoner during the same period, in both the cases. It was ruled that if the convict was in prison, for whatever reason, during the stages of investigation, inquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case, the earlier period of detention undergone by him should be counted as part of the sentence imposed on him. The sentence of life imprisonment imposed on the same person in two different convictions would converge into one and thereafter, it would flow through one stream alone. The sentence of life imprisonment imposed on the same person in two different convictions would converge into one and thereafter, it would flow through one stream alone. Even if the sentence in one of the two cases is not life imprisonment but only a lesser term, the convergence will take place and the post-convergence flow would be through the same channel. In all other cases, it is left to the Court to decide whether the sentence in two different convictions should merge into one period or not. If no order is passed by the Court, two sentences would run one after the other. 9. As a matter of fact, in the afore-referred case, the scope of Sections 428 and 427 of Criminal Procedure Code has been discussed. Therein, the accused had remained in custody during the same period in both the cases. The factual scenario herein is distinct and different from the afore-mentioned case. In the present one, the petitioner was on bail in the first case during the period from 8.2.1992 to 20.10.1992. He was convicted in the first case, but acquitted in the second one. Of course, as per Annexures P.2 to P.5, he was being produced too in the first case along with the second one, but it is apt to be borne in mind that he never got cancelled his bail in the first case. He being in custody in the second one, the jail authorities were obligated to produce him in the first case as well, while in custody. So, on the dint of Najakat Alia Mubarak Alis case (supra), no mileage can be driven by the petitioner. In that case, at no point of time, the appellant had been on bail in either case. Herein, if the petitioner had got cancelled his bail order in the first case, soon after his arrest in the second one, in that eventuality, he would have been treated to be in custody in the first case as well and then the period under discussion would have also been counted towards his sentence in the first case. 10. In re : Baldev Singh (supra). "Baldev Singh was arrested on 4.2.1983 in case F.I.R. No. 23 dated 28.1.1983 registered in Police Station Raikot under Section 326 etc. of Indian Penal Code. He was released on bail on 21.5.1983. Ultimately, he alongwith others was convicted and sentenced on 13.6.1986. 10. In re : Baldev Singh (supra). "Baldev Singh was arrested on 4.2.1983 in case F.I.R. No. 23 dated 28.1.1983 registered in Police Station Raikot under Section 326 etc. of Indian Penal Code. He was released on bail on 21.5.1983. Ultimately, he alongwith others was convicted and sentenced on 13.6.1986. He was sent to jail to serve the sentence and was released on bail. During pendency of the appeal, he absented and it was learnt that he has been arrested in some other case and has been sent to Nabha jail. It was held by the Single Bench of this Court that even if the contention of the learned counsel for the State is correct, the petitioner would be entitled to the set off claimed by him because, the petitioner was initially arrested in connection with the same case, in which he was ultimately convicted (sic.) He was granted bail in that case, but was arrested in connection with another case. As soon as, he was arrested, the bail stood cancelled." With utmost humility, I regret my inability to agree with the rule laid down in Baldev Singhs case (supra). The bail granted in one criminal case would not get cancelled automatically in consequence of arrest in the other criminal case. The bail order/ bail bonds would be cancelled either at the instance of the complainant or on own asking of the accused or his/her surety or in the event of non-appearance of the accused, as the case may be. In no circumstance, the arrest in the other case, would operate as automatic cancellation of bail order/bail bonds operating in the earlier case. To illustrate, A is arrested and released on bail in one case. Subsequently, he is arrested in another criminal case. On the analogy of Baldev Singhs case (supra), his bail in the first case would stand cancelled due to his arrest in the second one. Assuming that, in the second case too, he is released on bail, A will insist that he be set at liberty as in the earlier case, he is already on bail and in the second one, he has also been granted bail. Assuming that, in the second case too, he is released on bail, A will insist that he be set at liberty as in the earlier case, he is already on bail and in the second one, he has also been granted bail. If his release is withheld, by saying that his bail in the first one stood cancelled automatically as a result of his arrest in the second one, he would be taken by surprise and would be well within his right to ask as to what circumstances his bail in the first case was cancelled. It is fundamental to our procedural jurisprudence, that the right of no person should be affected without he being heard. Thus to my mind, it would be illogical and unsalutary to say that if one is arrested in a subsequent case, his bail in the first case shall stand cancelled automatically. Thus, the observations rendered in re: Baldev Singh (supra) are of no assistance to the petitioner. 11. In re: Joginder Singhs case (supra), respondents No. 3 to 5 in the appeals along with one Rachhpal Singh, their father, were convicted by the Chief Judicial Magistrate First Class, Nabha on 13.8.1987 for offences punishable under Sections 326, 325, 324 read with Section 34 of Indian Penal Code. On an appeal filed against the judgment and conviction, the learned Sessions Judge, Patiala confirmed the convictions as against respondents No. 3 to 5 and allowed the appeal of Rachhpal Singh and acquitted him of the charges alleged against him. Against the said judgment of the Appellate Court, the said respondents filed a revision petition before this Court and the learned Single Judge, who heard the revision petition, dismissed the same on 17.7.1998 upholding the conviction and sentence awarded to the said respondents. In paragraphs No. 12 and 13 of the judgment, it was observed as under :- 12. In Mohinder Singh (supra) which is followed by the Constitution Bench in Sunil Fulchand Shah (supra), this Court held : 14. Parole is defined in Blacks Law Dictionary as "a conditional release of a prisoner, generally under supervision of a parole officer, who has served part of the term for which he was sentenced to prison." Parole relates to executive action taken after the door has been closed on a convict. Parole is defined in Blacks Law Dictionary as "a conditional release of a prisoner, generally under supervision of a parole officer, who has served part of the term for which he was sentenced to prison." Parole relates to executive action taken after the door has been closed on a convict. During parole period, there is no suspension of sentence, but the sentence is actually continuing to run during that period also." 13. In view of the pronouncement of this Court also, we are of the opinion that the High Court fell in error in accepting the argument of the said respondents that they are entitled for the benefit of the period of remission given by the various notifications cumulatively to be counted against the period during which they were on bail. In our opinion, while applying the period of remission granted by the Government under any remission notification, the period during which an accused person was on bail cannot be taken into account." 12. It can be reasonably culled out from these observations that the bail period cannot be taken into account even while applying the period of remission granted by the Government. 13. To my mind, it is conceptually inconceivable that bail period should be counted towards sentence. One cant be permitted to have the cake and eat it too. 14. To conclude finally, the period, i.e., from 8.2.1992 to 20.10.1992 during which the petitioner remained on bail in the first case cannot be counted towards the sentence inflicted in the first case. The poser stands answered in the negative. Sequelly, this petition is dismissed. Petition dismissed.