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2011 DIGILAW 1225 (CAL)

Md. Asif v. STATE OF WEST BENGAL

2011-09-02

J.N.PATEL

body2011
JUDGMENT J.N. PATEL, C.J. 1. These three petitions seeking writ of Habeas Corpus came to be moved at the instance of Commonwealth Human Rights Initiative having come to know in their interaction with prisoners that the three convicts lodged in Presidency C.H i.e. Tapas Ghosh and in Howrah District C.H. Alik Mondal and Md. Asif are undergoing sentence in the respective cases wherein they were found guilty and sentenced to suffer imprisonment. 2. IT is the contention of the petitioners that all the three petitioners have a common grievance in respect of non2 inclusion of their period of detention as an under trial prisoners while calculating their term of imprisonment and, therefore, it is their apprehension that they may be required to undergo imprisonment without getting advantage/benefit of set-off. The petitioners were under an impression that the prisoners have actually undergone the period of sentence if they are given the set-off to which they are entitled but the Superintendent, Presidency CCH and Howrah District Correctional Home are not in a position to consider their request for the reason that the records are not available as regards the period they were detained as under trial prisoners so as to give them benefit of set-off. The reason given is that the record and proceedings of the trial reflecting the period spent in detention as an undertrial prisoners has been irretrievably lost/damaged due to fire that broke out in the Correctional Home. In the affidavit-in-reply filed on behalf of the respondent sworn by Deputy Inspector General (SandW) of Correctional Services, West Bengal, Directorate of Correctional Services, Government of West Bengal it has been stated that the prisoner, Tapas Ghosh was convicted by the District and Sessions Judge on 29.3.2003 and was sentenced to suffer rigorous imprisonment for life and also to pay fine of Rs. 1000/- in default to suffer rigorous imprisonment for six months in Sessions Trial No.101/2002 for having committed offence under Section 376 of the Indian Penal Code against which he preferred an appeal being CRA No.310/03 in the High Court which was partially allowed and his sentence was reduced from imprisonment for life to 10 years and to pay a fine of Rs. 5,000/- and in default to suffer further period of two months and as the original records and proceedings were lying in the High Court undertrial period of detention could not be calculated in case of the convict Tapas Ghosh. 3. IT is submitted that after the appeal was decided the Superintendent of Jail has received the modified warrant of commitment which specifies that the prisoner will be entitled to set-off against the term of imprisonment as per Section 428 of the Code of Criminal Procedure and the probable date of release of the convict Tapas Ghosh has been calculated on 7.9.2011 (if fine is paid) and 7.11.2011 (if fine is not paid). Similarly, in case of other two convicts it is submitted that the period of sentence has been duly calculated by taking into consideration the period undergone by them as undertrial prisoners and also by taking into consideration remission earned by them while undergoing the sentence. 4. THEREFORE, in case of convict Alik Mondal who has been convicted for having committed offence under Section 376 of the Indian Penal Code by Special Court cum-Additional District and Sessions Judge, 4th Court, Howrah for a period of 10 years rigorous imprisonment and is currently detained as prisoner in Presidency, Correctional Home and his sentence is calculated as under : DD MM YY Date of Sentence 17 12 2003 Sentence (R.I. for 10 year) 00 00 0010 (Adding) Date of Release 16 12 2013 UT set off from 01.10.2001 to 26.11.2001=1(one) month 26 days (As per Howrah Dist. Correctional Home, Memo No.-4738/RB, dtd-30.08.11 26 01 0000 (Subtracting) 20 10 2013 Remission earned 04 04 0001 from 17.12.2003 to 31.08.2011=484 days (one year four month four day) Subtracting PDR 16 06 2012 In case of convict Md. Asif who has been convicted under Section 14 of the Foreigners Act and has been sentenced to undergo simple imprisonment for three years and is currently serving his term in Presidency Correctional Home. Asif who has been convicted under Section 14 of the Foreigners Act and has been sentenced to undergo simple imprisonment for three years and is currently serving his term in Presidency Correctional Home. His probable date of release would as under : DD MM YY Date of Sentence:- 08 03 2010 Sentence (R.I. for three year) 00 00 0003 (Adding)Date of Release 07 03 2013 UT set off from 29.01.09 to 07.03.10=one year one month eight days 08 01 0001 (Subtracting) PDR 27 01 2012 Remission earned from 17.12.2003 to 31.08.2011=484 days (one year four month four day) 04 04 0001 Subtracting PDR 16 06 2012 Provided he will pay fine amount of Rs. 10,000/- only, in default of which he will have to serve further S.I. for six months. 5. IN view of the fact that the Superintendent of Correctional Home where convicts are undergoing their sentences has placed before us Extracts of Record showing probable date of release of the three convicts wherein the period of detention undergone by them as under trial prisoners has been taken into consideration and given as setoff along with the remission if any earned by them we find that the apprehension of the petitioners is unfounded. It is brought to our notice that the petitioners were required to move this Court by addressing a letter to the Chief Justice as the prisoners were unaware of the fact as to whether the period undergone by them as under trial prisoners has been taken into consideration for the purpose of giving set-off or not as the prisoners were informed for want of record that they will not be entitled to such benefit and that when the petitioners sought such information from the Superintendent of Correctional Home they were also informed that such information will not be available from Correctional Home as the record pertaining to the prisoners has been destroyed in fire, the petitioners were therefore required to approach this Court. 6. WE are informed by the learned additional government pleader that all the petitioners are informed about the probable date of their release well in advance and, therefore, the prisoners have made false representation to the petitioners and the petitioners without making proper enquiry have addressed letters to this Court. 6. WE are informed by the learned additional government pleader that all the petitioners are informed about the probable date of their release well in advance and, therefore, the prisoners have made false representation to the petitioners and the petitioners without making proper enquiry have addressed letters to this Court. WE may make it clear that for future the Superintendent of Correctional Home should communicate the necessary information to the convicts as regards their probable date of release and obtain their acknowledgement so that the prisoners do not have any such grievance and a proper understanding should also be given to the members of the petitioners organization, if applied for on behalf of the prisoners so as to avoid unnecessary filing of such habeas corpus petition in this regard. In view of the fact that prisoners represented by petitioners are made aware of their probable date of release after due calculation of the period of detention undergone by the prisoners during the investigation, enquiry or trial as setoff nothing survives in these petitions. Therefore, with the aforesaid directions, the same stands disposed of.