Research › Search › Judgment

Madhya Pradesh High Court · body

2021 DIGILAW 537 (MP)

Rajkumar Ahirwar v. State of M. P.

2021-07-07

ANAND PATHAK, SHEEL NAGU

body2021
ORDER 1. This petition u/Art. 226 of Constitution seeks issuance of writ of habeas corpus based on the foundational facts that despite having suffered the entire period of punishment inflicted by the trial Court, modified by this Court in criminal appeal and further modified by apex Court, father of petitioner namely Patru (respondent No.2 before this Court and apex Court) has not yet been released. 2. Before embarking upon the process of adjudication highlighting the bare facts would be essential :- 2.1 Patru, respondent No.2 in S.T.No. 203/2008 by judgment dated 18.7.2011 was convicted u/S. 326/34 IPC and sentenced to 3 years RI with fine of Rs. 250/- in default of which further simple imprisonment of 6 months was awarded. Similarly in the Sessions Trial, respondent No.2 was further convicted u/S. 452 IPC to suffer sentence of 1 year RI with fine of Rs. 250/- in default of which 6 months SI was awarded. 2.2 Aggrieved respondent No.2-Patru preferred Criminal Appeal 659/2011 before this Court which was partly allowed by reducing the sentence already undergone by respondent No.2. 2.3 Against the judgment of this Court, the State approached apex Court in Criminal Appeal 690/2014 which was also partly allowed by judgment dated 22.10.2019 converting the sentence as follows:- Conviction Sentence Sentence in default of payment 326 r/w 34 IPC 3 months R.I. with fine of Rs. 75,000/- 3 months S.I. 452 IPC 3 months R.I. with fine of Rs. 25,000/- 3 months S.I. 3. Pertinently, apex Court by rendering it's judgment dated 22.10.2019 vide P/1 directed for the sentences to run concurrently and for the State to take respondent No.2-Patru (father of petitioner) in custody forthwith to serve out remaining sentence as modified by the judgment. 3.1 The relevant extracts of the judgment of apex Court i.e. paras 17 & 20 are reproduced below :- “17. Comparatively, having perused certain precedents of this Court, we are of the considered opinion and accordingly direct that for the commission of the offence under section 326 of IPC read with section 34 of IPC, the respondent nos. 1, 2 and 3 are sentenced to serve rigorous imprisonment for 3 months and to pay a fine of Rs. 75,000/-(Rupees Seventy Five Thousand Only) each within a period of 1 month, on default of payment of which they are to suffer simple imprisonment for 3 months. 1, 2 and 3 are sentenced to serve rigorous imprisonment for 3 months and to pay a fine of Rs. 75,000/-(Rupees Seventy Five Thousand Only) each within a period of 1 month, on default of payment of which they are to suffer simple imprisonment for 3 months. For the offence under section 452 of IPC, the respondent nos. 1, 2 and 3 are sentenced to serve rigorous imprisonment for 3 months and to pay a fine of Rs. 25,000/- (Rupees Twenty Five Thousand Only) each within a period of 1 month, on default of payment of which they are to suffer simple imprisonment for 3 months. 20. Accordingly, the appeal is partly allowed and the impugned order of the High Court is modified in the afore-stated terms.” 4. It is not disputed by learned counsel for petitioner that petitioner did not pay the amount of fine and as such respondent No.2-Patru was required to undergo default sentence of 3 months SI. 4.1. It is also not disputed at the bar that pursuant to the judgment of apex Court respondent No.2 was admitted to District Jail Guna on 18.8.2020 and he completed substantive sentence of 3 months R.I., but has not been released. 5. The response vide status report of the State reveals that respondent No.2 was admitted to sub-jail Guna pursuant to the order of apex Court on 18.8.2020 and according to the State completed substantive sentence on 13.2.2021 but since fine has not been deposited therefore respondent No.2 is detained in custody to suffer not only 3 months SI for offence u/S. 326 IPC but also another 3 months SI of default sentence for offence u/S. 452 IPC. Thus, the stand of the State is that respondent No.2 shall now be released on 13.8.2021 after suffering 6 months RI (3 months RI + 3 months RI as default sentences qua Sec. 326 r/w 34 and 452 IPC respectively). 5.1 From the aforesaid factual details what is beyond comprehension is that respondent No.2 was required to undergo 6 months RI as substantive sentence when the apex Court had modified the substantive sentence to 3 months RI u/S. 326/34 IPC and 3 months RI u/S. 452 IPC and had categorically directed that these substantive sentences shall run concurrently. 5.1 From the aforesaid factual details what is beyond comprehension is that respondent No.2 was required to undergo 6 months RI as substantive sentence when the apex Court had modified the substantive sentence to 3 months RI u/S. 326/34 IPC and 3 months RI u/S. 452 IPC and had categorically directed that these substantive sentences shall run concurrently. 5.2 Yet, the respondent No.2 was made to undergo substantive sentence of 6 months instead of 3 months from 18.8.2020 to 13.2.2021 as per para 2 of the status report of the State filed on 17.6.2021. 5.3 Going by the response of the State it is obvious that if respondent No.2 pursuant to apex Court order was taken into custody on 18.8.2020 the substantive sentence of 3 months (3 months RI u/S. 326 IPC + 3 months RI u/S. 452 IPC both to run concurrently) would have been suffered by respondent No.2 from 17th /18th June 2020 yet for the reason best known to the State the substantive sentence was treated to be completed after 6 months. 5.4 Thus, if substantive sentence of 3 months was over from 17th / 18th August 2020 to 17th /18th November, 2020 then default sentence of 6 months (3 months qua Sec. 326 + 3 months qua Sec. 452 IPC) with no benefit of concurrent of sentence would have been over on 17th /18th May 2021. 5.5 However, the State continues to hold the respondent No.2/corpus in custody till date under the impression that default sentence in both Secs would be over by 13.8.2021. 6. In view of above, the State and it's functionaries had no authority in law to curtail right of personal liberty of respondent No.2/corpus after 17th /18th May, 2021 whereafter the detention which is still continuing is unlawful. 7. Accordingly this petition stands allowed with following terms:- (a) A writ of habeas corpus is issued directing the respondents to forthwith release respondent No.2-Patru from unlawful custody and file compliance report within a week before the Registry of this Court failing which the Registry is directed to list this matter as PUD under caption of “direction” before appropriate bench. (b) Since respondent No.2 is deprived of his personal right of liberty without any authority of law after 17th & 18th May 2021 he is entitled to cost of Rs. 10,000/- (Rs. (b) Since respondent No.2 is deprived of his personal right of liberty without any authority of law after 17th & 18th May 2021 he is entitled to cost of Rs. 10,000/- (Rs. Ten Thousand) which shall be paid to respondent No.2 by way of digital transfer in his bank account within one week from today and report compliance to the Registry of this Court.