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2011 DIGILAW 2087 (PAT)

Chhotai Singh v. State Of Bihar,Home Secretary

2011-09-28

ADITYA KUMAR TRIVEDI

body2011
JUDGEMENT 1. Petitioner, Chhotai Singh has prayed for inclusion of his detention from 22.4.1994 to 27.04.2000 during course of which he as claimed happens to be under custody in connection with Sikta P.S. Case No.113 of 1993 to be included and set off as per Section 428 of the Cr.P.C., while counting with period of detention in connection with Betiah P.S. Case No.4 of 1994 arising out of Sessions Trial No.221 of 1995 wherein he has been convicted and sentenced for imprisonment for life vide judgment dated 22.7.2003 under Section 364A, 120B of the I.P.C. by the Vth Additional District & Sessions, Bettiah, West Champaran. 2. The State had repelled the prayer by filing counter affidavit. It has been submitted on behalf of petitioner that there happens to be an allegation put in Betiah P.S. Case No.4 of 1994 to the effect even during course of judicial custody, he conspired along with other co-accused in getting the victim Awadhesh Kumar Singh kidnapped in the background of satisfying the demand of ransom. Then submitted that while the petitioner was under custody at Bettiah Jail in connection with Sikta P.S. Case No.113 of 1993, he was transferred to Motihari Jail on 17.7.1993 and remained languishing 2 there in spite of the fact that production warrant was issued by the competent court in connection with Betiah P.S. Case No.4 of 1994 where lastly he was produced on 28.4.2000. 3. Therefore, submission is that from 22.4.1994, the date on which direction for production was issued with regard to Betiah P.S. Case No.4 of 1994 wherever he was not produced by the by the authorities concerned on account of their own negligence and laches and for that, petitioner could not be held responsible, therefore, the same has to be reckoned from the date on which order for production was issued while counting period of detention in connection with Bettiah P.S. Case no..4 of 1994 wherein he stood convicted for. Then submitted that had the petitioner been produced at an earlier occasion in pursuance of production warrant, certainly the date should have reckoned from the day of his production in connection with Betiah P.S. Case No.4 of 1994. To support his plea, has cited 1998(2) PLJR page 626, AIR 1982 Supreme Court 1391, AIR 1977 Supreme Court 1096, 1995 (1) PLJR 350, 2011(1) PLJR page 234. 4. At the other hand the learned Standing Counsel, Mr. To support his plea, has cited 1998(2) PLJR page 626, AIR 1982 Supreme Court 1391, AIR 1977 Supreme Court 1096, 1995 (1) PLJR 350, 2011(1) PLJR page 234. 4. At the other hand the learned Standing Counsel, Mr. J.S. Arora submitted that the prayer of the petitioner is untenable in the eye of law because of the fact that petitioner happens to be an accused in Sessions Trial No.19/1995, Sessions Trial No.468/1991, Sessions Trial No.286/1995, Sessions Trial No.251/1999 at Motihari therefore it was not possible to produce the accused because of the fact that production of accused at Bettiah would have caused hindrance in the smooth sailing of those cases. The aforesaid disclosure has elaborately been dealt with under para - 13 as well as para 21 of the counter affidavit. So submitted that there was no negligence or laches on the part of the State rather the aforesaid detention was on account of criminal antecedent of petitioner. Then submitted that Section 269 of the Cr.P.C. also recognize the same. As such, it has been submitted that prayer of the petitioner is not entertainable and is fit to be rejected. 5. After going through the pleadings of the respective parties, more particularly of the petitioner, it is evident that he had not mentioned the ultimate result of any of the case more particularly Sikta P.S. Case No.113 of 1993 along with the list of cases detailed in para 21 of the counter affidavit. Application of Section 428 of the Cr.P.C. would be applicable in all the cases in case petitioner was convicted and sentenced. That means to say the petitioner by suppressing the aforesaid fact had tried to convince the court to include the period 22.4.1994 to 27.4.1994 while calculating the period with regard to Betiah P.S. Case No.4 of 1994 arising out of Sessions Trial No.221 of 1995. One span of time cannot be concluded in different cases and that happens to be the spirit of law and further been decided by the Honble Apex Court as has been held and reported in AIR 1984 SC 1796 . "Hence in order to secure the benefit of S. 428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced. "Hence in order to secure the benefit of S. 428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced. It follows that if a person is undergoing the sentence of imprisonment imposed by a Court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in the latter case even though he was under detention during such period. In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence. It is not the period of detention undergone by him during the investigation, inquiry or trial of the same case in which he is later on convicted and sentenced to undergo imprisonment. He cannot claim a double benefit under S. 428 of the Code i.e. the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well." 6. In another decision reported in 1977 Cr.L.J. 935, it has 4 been held by the Honble Apex Court. "It is true that section speaks of the "period of detention" undergone by an accused person but it expressly says that detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has been convicted. The section makes it clear that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be during the investigation, enquiry or trial in connection with the "same case" in which he has been convicted. We, therefore, agree with the High Court that the period during which the writ petitioners were in preventive detention cannot be set off under S. 428 against the terms of imprisonment imposed on them." 7. None of the decisions cited by the petitioner deals with the aforesaid issues involved in the present controversy. We, therefore, agree with the High Court that the period during which the writ petitioners were in preventive detention cannot be set off under S. 428 against the terms of imprisonment imposed on them." 7. None of the decisions cited by the petitioner deals with the aforesaid issues involved in the present controversy. As such, the instant petition is found to be misconceived and is, accordingly, dismissed.