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2013 DIGILAW 188 (RAJ)

Bholeshwar v. State of Rajasthan

2013-01-23

DINESH MAHESHWARI, V.K.MATHUR

body2013
JUDGMENT 1. The petitioner herein has been convicted for the offence under Section 302 I.P.C. and has been sentenced to imprisonment for life and a fine in the sum of Rs. 5,000/- with stipulation that in case of default in payment of fine, he would further undergo simple imprisonment for three months by the judgment and order dated 27.2.2009 as passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Udaipur in Sessions Case No. 1/2009. An appeal (Cr.A. No. 294/2009) preferred against the judgment and order dated 27.2.2009 remains pending in this Court. 2. This letter petition has been sent by the petitioner stating the grievance that the period he remained under detention during the investigation, inquiry and trial of the case, commencing from 23.11.2007, has not been included in his record while being sent to prison pursuant to judgment and order dated 27.2.2009. The petitioner submits that the period of detention undergone by him before conviction, of about 15 months, deserves to be counted towards the period of his serving the sentence. 3. The respondents have filed a reply essentially not disputing on the basic facts. It is, however, submitted that in the warrant issued by the learned trial Court in regard to the petitioner, nothing was mentioned about the earlier period of detention and hence, such a period has not been included in his record. 4. The learned counsel appearing for the petitioner has referred to the decision of the Hon'ble Supreme Court in the case of Bhagirath v. Delhi Administration, AIR 1985 SC 1050 and that of a Division Bench of this Court in the case of Chittar Lal v. State of Rajasthan, 2010(2) Cr.L.R. (Raj.) 1575 to submit that the period of detention during investigation, inquiry and trial deserves to be taken into consideration for the purpose of counting the period of serving the sentence. According to the learned counsel, mere omission of mentioning the period of detention in the warrant cannot operate against the interests of the petitioner. 5. In view of the submissions made in this matter, we have also requisitioned the record of Criminal Appeal No. 294/2009 filed by the petitioner; and have perused the contents of the judgment and order dated 27.2.2009. 6. 5. In view of the submissions made in this matter, we have also requisitioned the record of Criminal Appeal No. 294/2009 filed by the petitioner; and have perused the contents of the judgment and order dated 27.2.2009. 6. Though nothing as regards the period of detention already undergone by the petitioner has been mentioned in the judgment mid order dated 27.2.2009 but that appears to be for the reason that the petitioner has been sentenced to the imprisonment for life. However, and in any case, neither the provisions of Sections 428 and 433-A of the Code of Criminal Procedure nor the principles expounded in the decisions aforesaid could be ignored. 7. In Bhagirath's case (supra), the Hon'ble Supreme Court has, inter alia, observed as under:- "8...... A large number of cases in which the accused suffer long undertrial detentions are cases punishable with imprisonment for life. Usually, those who are liable to be sentenced to imprisonment for life are not enlarged on bail. To deny the benefit of Section 428 to them is to withdraw the application of a benevolent provision from a large majority of cases in which such benefit would be needed and justified." 8. In Chittar Lal's case (supra), a Division Bench of this Court considered the case of a convict in whose regard, the learned trial Court had ordered that he would not be entitled to the set off as provided under Section 428 Cr.P.C. The Division Bench of this Court referred to the dictum in Bhagirath's case (supra) and observed that denial of benefit under Section 428 Cr.P.C. was contrary to the beneficial law enacted with special object; and while allowing the writ petition, held that the petitioner would be entitled to such benefit of set off while considering his case for any benefit due to serving of the sentence in consonance with the provisions of Section 428 read with Section 433-A Cr.P.C. 9. In the present case, though on facts it appears that the petitioner has remained in detention from 23.11.2007 and was ultimately convicted on 27.2.2009 but then, the period of detention undergone by him before conviction appears to have not been included in the warrant and resultantly, the respondents in their reply would state that the total period of his actual serving the sentence is 3 years 8 months and 19 days as on 15.11.2012 while counting nothing towards under trial period. The expression "under trial period" is being used by the respondents essentially with regard to the period of detention, if any, that the accused had undergone during the course of investigation, inquiry and tried. 10. When the fact is otherwise not in dispute that the petitioner has indeed been in detention before conviction and during the course of investigation and trial, there appears no reason that such period of detention be not counted towards the period of serving of sentence. On the other hand, if this period of detention before conviction is not at all included for the purpose of counting the period of serving, it is likely to have an adverse effect in several ways particularly when considering anything with reference to the length of serving the sentence, including the aspects of remission or commutation, whenever the occasion there be. Thus, on the principles emanating from the decisions in Chittar Lal and Bhagirath (supra), we are clearly of the view that at the present stage itself, the prison record of the petitioner deserves to be corrected; and the period of detention undergone by him during the course of investigation, inquiry and trial should be clearly included therein. 11. Before parting, we may put a note of caution for the trial Courts that while drawing warrant in such a matter upon passing of the order of sentence, due care must be taken to ensure that all the relevant period of detention and other relevant information are included in the warrant. 12. In view of what has been discussed and observed hereinabove, this petition is allowed in the manner that the period of detention undergone by the petitioner during investigation, inquiry and trial of the case that resulted in the aforesaid judgment and order dated 27.2.2009 shall be taken into consideration and counted.; towards the period of serving the sentence. The respondents shall carry out the necessary correction in the record at the earliest and in any case, within 30 days from today and shall inform the petitioner accordingly.Petition allowed. *******