1603cwp92.11.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL WRIT PETITION NO. 92 of 2011. Dyneshwar Tukaram Bondre ..vs.. The State of Mah. through the Secretary, Home Deptt.Mantralaya, Mumbai and anr. ------------------------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------------- Petition by Post. Mr.T.A.Mirza, APP for the respondents. CORAM : V.K.TAHILRAMANI AND PRASANNA B.VARALE, JJ. DATED : 16TH MARCH, 2011. 1. Heard learned APP for the respondents. 2. The petitioner is praying that he be granted set off for the period that he was in custody i.e. from 30/11/1994 to 4/9/1995. 3. The brief facts of this case are as under - The petitioner – original accused no.1 was arrested on 30/11/1994 in a case under Section 376 (2)(g) read with Section 34 of the Indian Penal Code and under Section 3(1)(x)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The case was committed to the court of Sessions Nagpur and it was numbered as Special Criminal Case No.31 of 1995. By 1603cwp92.11.odt 2/3 the Judgment and order dated 2/8/1995, the learned Sessions Judge convicted the petitioner along with other accused under Section 376(2)(g) of I.P.Code. 4. On going through the judgment and order passed by the learned Sessions Judge dated 2/8/2005, it is noticed that no set off was given to the petitioner for the period that he was in custody i.e. from 30/11/1994 to 4/9/1995. From the record, it is clear that the accused was arrested on 30/11/1994 and the Roznama pertaining to the Sessions case shows that on 4/9/1995 the petitioner was released on bail. Thus, it is clear that from 30/11/1994 to 4/9/1995 the petitioner was in custody. However, due to inadvertence, no set off was granted by the Trial Court to the petitioner for the said period. 5. Thereafter, the petitioner preferred an appeal before this court which was numbered as Criminal Appeal No.531 of 2005. By judgment and order dated 2/4/2007, this court set aside the judgment and order dated 2/8/2005 and remanded the matter back to the Trial court to decide the trial afresh after recording the evidence of the Medical Officer. Pursuant to the said order of this court, the Trial Court decided the matter afresh and by judgment and order dated 10/1/2008 convicted the petitioner under Section 376(2)(g) of the I.P.Code. The learned Sessions Judge in his Judgment and order has specifically stated that accused no.1 i.e. the 1603cwp92.11.odt 3/3 present petitioner is entitled for the benefit of set off under Section 428 of Cr.P.C. However, in the jail committal order it is noticed that inadvertently only period from 2/8/2005 to 7/7/2007 is mentioned as the period when the petitioner was in custody. In fact, this was the period that the matter was pending before the Trial Court for the second time after orders were passed by this court to decide the trial afresh. The earlier period that the petitioner was in custody i.e. from 30/11/1994 to 4/9/1995 was lost sight of for which the petitioner is praying for set off. 6. The record clearly shows that the petitioner was in custody from 30/11/1994 to 4/9/1995. However, the petitioner has not been granted set off for the said period though he is entitled to set off for the said period. Looking to the above facts, the petitioner be granted set off for the said period i.e. from 30/11/1994 to 4/9/1995. Petition disposed of with aforesaid directions. Office to communicate this order to the petitioner through the Jail Superintendent, Central Prison, Nagpur. JUDGE JUDGE chute