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2011 DIGILAW 312 (CHH)

DINESH SONI v. STATE OF C. G.

2011-09-09

MANINDRA MOHAN SHRIVASTAVA

body2011
ORDER 1. By this petition under Section 482 of the Cr.P.C., the petitioner has prayed for issuance of suitable orders/directions for his release from imprisonment forthwith from jail in the matter of sentence awarded to him for commission. of offence under Section 394/34 of the I.P.C. in Criminal Case No.1 024/20 1 0 vide judgment of conviction and order of sentence dated 02-07-2011 passed by the Judicial Magistrate First Class, Korba. 2. The petitioner was arrested on 20-02-2010 by the police of Police Station Balco Nagar in connection with Crime No.217 of 2010 for alleged commission of offence under Section 392, 201 & 411 of the I.P.C. as well as in connection with Crime No.40/2010 for alleged commission of offence under Section 394/109 of the I.P.C. After investigation in connection with Crime No.217 of 2010, charge sheet was filed by the Police in the Court of Judicial Magistrate First Class, Korba, for prosecution of offence under Section 394, 411 and 201 of I.P.C. against the petitioner and four other accused persons, which was registered as regular Criminal Case No.1024/2010. Similarly, in connection with Crime No.40 of 2010, charges have been framed for commission of offence under Section 394/34 and 411 of the I.P.C., after completion of investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Korba and charges were framed against the petitioner and one Nitin Metkari for alleged commission of offence under Section 392, 201 of the I.P.C. under Criminal Case No.697 of 2010. 3. Vide judgment of conviction and order of sentence dated 11-03-2011 passed in Criminal Case No.697 of 2010, the petitioner was held guilty of commission of offence under Section 392, 201 of the I.P.C. and sentenced to undergo R.I. of two years with fine of Rs.2001- and in default of payment of fine, additional R.I. for one month for each of the offences. Exercising its power under Section 428 of the Cr.P.C., the learned trial Court provided set off in respect of the period of imprisonment undergone by the petitioner during trial with effect from 20-02-2010. The learned trial Court further directed that the sentence awarded under Section 392 and 201 of the I.P.C. shall run concurrently. Against the judgment of conviction and order of sentence awarded, the petitioner preferred criminal appeal, which was dismissed vide order dated 25-06-2011 passed by the Sessions Judge, Korba in Criminal Appeal No.121 2011. The learned trial Court further directed that the sentence awarded under Section 392 and 201 of the I.P.C. shall run concurrently. Against the judgment of conviction and order of sentence awarded, the petitioner preferred criminal appeal, which was dismissed vide order dated 25-06-2011 passed by the Sessions Judge, Korba in Criminal Appeal No.121 2011. Aggrieved by the order passed in appeal, the petitioner filed criminal revision before this Court registered as Criminal Revision No.376 of 2011, wherein, vide order dated 13-07-2011, the substantive jail sentence imposed on the petitioner has been suspended during the pendency of revision petition, directing his release on furnishing personal bond of Rs. 10,000/- along with one surety in the like sum to the satisfaction of the trial Court. While the matter stood thus, vide judgment of conviction and order of sentence dated 02-07-2011 passed in Criminal Case No.1024 of 2010, arising out of Crime No.217 of 20 10, the petitioner was held guilty for commission of offence under Section 394/34 of the I.P.C. along with other accused Babulal and Dilip and sentenced to undergo R.I. for one year and five months and fine of Rs.2,000/- and in default of payment of fine, additional simple imprisonment for two months. The trial Court further passed an order of set off in respect of the period of pre-trial detention with effect from 20-02-2010 under Section 428 of the Cr.P.C. and directed that if as a result of set off, the petitioner has undergone the sentence awarded, he be released forthwith. 4. The petitioner was however not released from imprisonment in connection with judgment of conviction and order of sentence dated 02-07-2011 in Criminal Case No.1024 of 2010. Vide memo dated 25-07-2011 (Annexure P-1), the Superintendent, District Jail, Korba, in response to memo dated 2307-2011 and order dated 20-07-2011 passed by the Judicial Magistrate First Class, Korba, has informed that though the petitioner has been released from jail in view of the order of grant of bail passed on 13-07-2011 in connection with Criminal Case No.697 of 2010, vide judgment of conviction and order of sentence dated 11-03-2011, the petitioner is undergoing sentence of imprisonment under judgment of conviction and order of sentence dated 02-07-2011 in Criminal Case No.1024 of 2010 by giving benefit of set-off under Section 428 of the Cr.P.C. for the period of imprisonment with effect from 20-02-2010 till 10-03-2011. 5. 5. The principal submission of learned counsel for the petitioner is that on the date, the petitioner was convicted under judgment of conviction and order of sentence dated 02-07-2011, he had already, undergone imprisonment of one year, four months and 12 days. He was ordered to be released by virtue of bail order dated 13-07-2011 passed in Criminal Revision No.376 of 2011 and he was released from imprisonment under judgment of conviction and order of sentence dated 11-03-2011 in Criminal Case No.697 of 2010, but was actually not released and continued to undergo imprisonment and on 20-07-2011, he completed the, period of sentence awarded against Criminal Case No.1024 of 2010, therefore, he was entitled to be released immediately after 20-07-2011. The submission of learned counsel for the petitioner is based on the premise that as the petitioner was arrested on 20-02-2010 in connection with Cr.No.40 of 2010 as well as Crime NO.217 of 2010, the entire period of imprisonment undergone by him up to 20-07-2011 is to be reckoned for the purpose of setoff as provided under Section 428 of the Cr.P.C. notwithstanding his conviction vide judgment of conviction and order of sentence dated 11-03-2011 in Criminal Case No.697 of 2010, therefore, it is submitted that, the jail authority has not correctly reckoned the period of imprisonment required to be reckoned for the purpose of set off in connection with Criminal Case No.1024 of 2010. It has been contended that the period of imprisonment undergone after 11-03-2011 cannot be denied. In support of his submission, learned counsel for the petitioner has relied upon the judgment in the case of Sachindranath Dey Vs. Superintendent, Mumbai Central Prison and others), and the order passed by this Court in the case of Sanjeet Pal Vs. State of Chhattisgarh2. 6. On the other hand, learned counsel for the State has submitted that. though, petitioner is entitled to set-off in respect of the period of pre-trial detention undergone by him from 20-02-2011 till 10-03-2011, his detention subsequent to 10-03-2011 is not as a pre-trial detention in connection with Criminal Case No.1024 of 2010, but as undergoing sentence of imprisonment in connection with the judgment of conviction and order of sentence dated 11-03-2011 in Criminal Case No.697 of 2010. By virtue of bail order dated 13-07-2011, the petitioner has been released in connection with sentence of imprisonment awarded vide judgment of conviction and order of sentence dated 11-03-2011. in Criminal Case No.697 of 2010, and period subsequent thereto, is the period which the petitioner is required to undergo as sentence of imprisonment, vide judgment of conviction and order of sentence dated 02-07-2011 in Criminal Case No.1024 of 2010. He further submits that the set-off is available to the petitioner only in respect of the pre-trial detention in the matter of his arrest under two criminal cases, but not in respect of period subsequent to 11-03-2011 and for that period, provisions of Section 428 of the Cr.P.C. did not come to the aid of the petitioner. 7. The issue, therefore, which arises for consideration in the present case is whether the period of imprisonment undergone by the petitioner after 11-03-2011 is liable to be reckoned for the purpose of set-off under Section 428 of the Cr.P.C. in the matter of sentence of imprisonment awarded to the petitioner under judgment of conviction and order of sentence dated 02-07-2011 in Criminal Case No.1024 of 2010. 8. In order to appreciate the submission of learned counsel for the parties and to answer the issue, it is necessary to look into the statutory scheme engrafted under Section 428 of the Cr.P.C. Section 428 of the Cr.P.C. provides that where an accused person has, on conviction, been sentence~ to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him. 9. As to what should be the true interpretation, purport and object of Section 428 of the Cr.P.C. remained debatable in view of the divergent view taken by the various Court. However, in the case of Raghbir Singh Vs. State of Haryana3, the Supreme Court observed on the fact situation of the case that the accused cannot claim double benefit. 9. As to what should be the true interpretation, purport and object of Section 428 of the Cr.P.C. remained debatable in view of the divergent view taken by the various Court. However, in the case of Raghbir Singh Vs. State of Haryana3, the Supreme Court observed on the fact situation of the case that the accused cannot claim double benefit. In other words, it was held that the accused can have the benefit of set-off in only one of two cases and not in both the cases. Later on, a three Judge Bench of the Supreme Court in the case of State of Maharashtra and another Vs. Najakat Alia Mubarak Ali4, has finally set at rest the issue, overruling its earlier view in the case of Raghbir Singh3 (supra) to hold that Section 428 of the Cr.P.C. permits the accused to have the period undergone by him in jail as under trial prisoner, set-off against the period of sentence imposed on him, irrespective of whether he was in jail in connection with the same case during that period. 10. The factual background in which the judgment was rendered by the Supreme Court in the case of State of Maharashtra and another4 (supra) as stated in the judgment are that the accused was tried in two cases. One was numbered SC No.230 of 1995 and the other as SC No.313 of 1996. He was arrested on 21-09-1995 in connection with both cases. The Sessions Judge who convicted him in SC No.230 of 1995 on 03-04-1998, while sentencing him, directed that the accused would be entitled to the set-off under Section 428 of the Code. Subsequently, a Sessions Court convicted him in SC No.323 of 1998 on 23-07-1998 and sentenced him to certain terms of imprisonment. The Sessions Judge concerned observed therein that the accused is entitled to the set-off under Section 428 of the Code. The respondent-accused sent an intimation to the jail authorities that he is entitled to be released from jail since he has already served the sentences imposed on him in both cases. But the jail authorities refused to release him on the premise that he could not claim the benefit of set-off in the second case "as he had been given set-off in the first case". 11. But the jail authorities refused to release him on the premise that he could not claim the benefit of set-off in the second case "as he had been given set-off in the first case". 11. The Supreme Court in the aforesaid decision examined the correctness of the view earlier taken in the case of Raghbir Singh3 (supra) which fell for examination wherein it was held:- 10. .......... xxxxx ............. "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, enquiry 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 Section 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." 12. After examining the correctness of the aforesaid view in the light of the provisions contained in Section• 428 of the Cr.P.C., it was held: 21. .......... xxxxx ............. "We, therefore, respectfully dissent from the view expressed by the two-Judge Bench of this Court in Raghbir Singh v. State of Haryanal." 13. The view, which was ultimately taken by the Supreme Court in the case of State of Maharashtra and another4 (supra), is as under: 18. "Reading Section 428 of the Code in the above perspective, the words "of the same case" are not to be understood as suggesting that the set-off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent- to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words "of the same case" were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words." 14. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words "of the same case" were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words." 14. It is thus clear in the case of State of Maharashtra and another4 (supra), the Supreme Court finally concluded by saying that the period, during which, the accused was in prison subsequent to the inception of a particular case, should be counted towards the period of imprisonment awarded as sentence in that particular case. It was held that it is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. What therefore follows from the aforesaid decision is that even the period of imprisonment, while undergoing sentences in other case, is to be reckoned for the purpose of allowing the set-off against the sentence of imprisonment awarded in the case in hand. In the present case, the result, therefore, would be that the entire period of imprisonment undergone by the petitioner from the date of his arrest i.e. 20-02-2010 till the date of conviction i.e. 02-07-2011 is required to be reckoned for the purpose of set-off notwithstanding conviction in the earlier case vide judgment of conviction and order of sentence dated 11-03-2011. It need be noted that in both the cases, the petitioner has been granted set-off under Section 428 of the Cr.P.C. with effect from the date of his arrest i.e. 20-02-2010. 15. In the final analysis, I have therefore to hold that the petitioner is entitled to set-off for the entire period from the date of his arrest till the judgment of conviction i.e. 02-07-2011. In Criminal Case No.1 024 of 2010, the petitioner has been awarded imprisonment of one year five months. If this period is reckoned with effect from 20-02-2011, it will come to an end on 20-07-2011. Therefore, the detention of the petitioner subsequent to 20-07-2011 is illegal and contrary to the provisions contained in Section 428 of the Cr.P.C. The computation of the period of sentence as reflected from memo dated 25-072011 of Superintendent, District Jail, Korba, is therefore, not in consonance with the legislative scheme of Section 428 of the Cr.P.C. The petitioner is therefore entitled to be released forthwith. It is however made clear that the direction for release is in view of the fact that the petitioner has already been granted bail and sentence awarded to him vide judgment of conviction and order of sentence dated 11-03-2011 in Criminal Case No.697 of2010 has been suspended vide order dated 13-07-2011 passed in Criminal Revision No.376 of 2011. The order of release is in connection with Criminal Case No. 1024 of 2010 only. A copy of this order be sent forthwith to the concerned trial Court as also to the Jail Superintendent, District Jail, Korba, for immediate release of the petitioner from jail, unless required in connection with any other case. 16. In view of foregoing, the petition is allowed. No orders as to cost. Petition Allowed.