IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :01.09.2009 CORAM: THE HON'BLE MR. JUSTICE F.M.IBRAHIM KALIFULLA AND THE HON'BLE MRS. JUSTICE R.BANUMATHI Habeas Corpus Petition No.1083 of 2009 Daulath .. Petitioner. vs. 1. The State of Tamil Nadu, rep. by its Secretary to Government, Home (Prison) Department, Fort St. George, Chennai-9. 2. The Superintendent of Police, Central Prison, Salem. 3. The Inspector of Police, Tirupur South Police Station, Tirupur, Tirupur District. .. Respondents. PRAYER: Petition under Article 226 of Constitution of India praying for issuance of Writ of Habeas Corpus directing the Respondents to produce the body of the detenu Javith @ Sayeed Yusuf, Convict No.5031 detained in Central Prison, Salem before this Court and set the detenu at liberty. For Petitioner :: Mr.P.S.Kothandaraman For Respondents :: Mr.V.R.Balasubramanian, Addl. Public Prosecutor. ORDER R.BANUMATHI,J Petitioner is the mother of detenu-Savith @ Sayeed Yusuf who is the convict in batch of cases. Habeas Corpus Petition has been filed https://hcservices.ecourts.gov.in/hcservices/ alleging that custody of the detenu from 02.5.2009 is illegal and seeking for a direction to set him at liberty. 2. The points falling for consideration are:- 1.When the accused is simultaneously in custody for more than one cases and convicted in two or more cases and when undergoing substantive sentence in one case, is he eligible to invoke the benefit of set off for any period in the subsequent case? 2.In the absence of a direction that the sentence of imprisonment in different cases would run concurrently whether conviction in the second Group of cases will begin to run after the expiry of the conviction period in the first Group? 3. Petitioner's son, Convict No.5031 Javith @ Sayeed Yusuf was convicted u/s.379 IPC concerned in Udumalpet Police Station in Crime Nos.21/2007, 10/2007, 13/2007, 14/2007 and 16/2007 [C.C.Nos.21/2007, 57/2007, 58/2007, 59/2007 and 60/2007 on the file of Judicial Magistrate, Udumalpet] and sentenced to undergo R.I. for two years. The set off was allowed for a period of 267 days from 10.1.2007 to 03.10.2007. The date of release after expiry of two years sentence is 03.10.2009. After deduction of set off period of 267 days, the date of release was 09.01.2009. So far as the first group of cases, there is no dispute. 4. In the second group of cases, by the Judgment dated 08.01.2008, Petitioner's son was convicted u/s.379 and 75 IPC concerned in B-7, Coimbatore Police Station in Crime Nos.668/2005 and 509/2005 and B-6, Coimbatore Police Station in Crime No.927/2005 [C.C.Nos.422/2006, 423/2006 and 424/2006 on the file of J.M.No.III, Coimbatore] and sentenced to undergo R.I. for three years. In the Judgment, trial court has ordered set off from 31.07.2005 to 20.11.2006 [476 days] and from 21.08.2007 to 08.01.2008 [140 days] totalling 616 days. In the second Group of cases, after the set off the period of sentence was 480 days [1096-616 = 480 days]. A little later, we would advert to the point as to the date from which it would start run. But before doing so, we would deal with the contentions raised as to the set off period u/s.428 Cr.P.C. 5. Contention of the prosecution is that for the second group of cases, set off period is allowable only for the period from 31.7.2005 to 20.11.2006. Specific case of the prosecution is that the convict was ineligible for set off for the period from 04.10.2007 to 08.01.2008. Contention of the prosecution is that while the convict was undergoing conviction in some other cases, he is ineligible for set off in another case as remand trial prisoner. https://hcservices.ecourts.gov.in/hcservices/ 6. Like wise, in the third group of cases, by the Judgment dated 30.03.2009, Petitioner's son was convicted u/s.379 IPC concerned in Tirupur South Police Station in Crime No.146/199 [C.C.No.264/2001 on the file of J.M.No.II, Tirupur] and sentenced to undergo R.I. for one year. Petitioner has filed the warrant in the third Group of cases. As per which, Court has ordered set off of 625 days as under:- @//// vjphp 29/10/2001ypUe;J 17/5/2002 tiuapYk;. 13/12/2004ypUe;J 21/6/2005 tiuapYk;. 11/8/2008ypUe;J 30/3/2009 tiuapYk; cl;fhtypUe;J 625 ehl;fs; jz;lidf;fhyj;jpypUe;J FtpKr 428 gphptpd; fPH; fHpf;ft[k; ,e;ePjpkd;wk; cj;jutpLfpwJ////@ The learned Additional Public Prosecutor contended that the period has to be restricted to the date of conviction in the first case and that convict becomes ineligible for set off from 11.08.2008 to 30.03.2009 and the convict would be eligible only for set off period of 392 days. 7. Like wise in the Group III-A cases, by the Judgment dated 30.03.2009, Petitioner's son was convicted u/s.379 IPC concerned in Tirupur South Police Station Crime No.140/1999 [C.C.No.125/2003 on the file of Judicial Magistrate No.II, Tirupur] and sentenced to undergo R.I. for one year. The sentence in Group III and III-A cases was ordered to run concurrently and the Court has ordered set off of 424 days as under:- @//// vjphp 13/12/2004ypUe;J 21/6/2005 tiuapYk;. 11/8/2008ypUe;J 30/3/2009 tiuapYk; cl;fhtypUe;J 428 gphptpd; fPH; fHpf;ft[k; ,e;ePjpkd;wk; cj;jutpLfpwJ/ ,t;tHf;fpd; jz;lidia ,e;ePjpkd;w M/g/t/vz;/264- 2001cld; nrh;j;J Vffhyj;jpy; mDgtpf;f cj;jut[/@ The learned Additional Public Prosecutor contended that the convict is ineligible for set off from 11.08.2008 to 30.03.2009 and therefore for the Group III-A cases, he would be eligible only for 191 days as set off. 8. Learned counsel for the Petitioner contended that sentence of imprisonment imposed on the detenu in two or more different convictions would converge into one and thereafter, it would run concurrently. Learned counsel for the Petitioner further submitted that Sections 427 and 428 Cr.P.C. are intended to provide amelioration to the detenu and the detenu would be entitled for the benefit of set off in respect of the detention in the earlier case as well. It was further argued that notwithstanding the absence of a direction for concurrent running of sentences, different convictions https://hcservices.ecourts.gov.in/hcservices/ would run concurrently and not consecutively. 9. Drawing our attention to Sec.427(1) Cr.P.C., learned Additional Public Prosecutor submitted that as per Sec.427 Cr.P.C. when prisoner is already undergoing sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. Learned Additional Public Prosecutor would further submit that Court did not specifically mention that all the conviction warrants are to run concurrently with each other and therefore, the conviction in Group II, III and III-A cases are to run consecutively and the date of release would be 02.09.2010. In support of his contention, learned Additional Public Prosecutor relied upon (2007) 1 SCC (Cri) 648 [M.R.Kudva v. State of A.P]. 10. Contention of the prosecution is two fold:- ●Petitioner's son cannot get double benefit for the same period spent as conviction for one Group of warrant and as under trial remand prisoner in another Group of warrants. ●Under Sec.427 Cr.P.C. sentence of imprisonment shall commence only at the expiration of the imprisonment in which the detenu has been previously sentenced. 11. For better appreciation of the first limb of contention, we may usefully extract the provision of Section 428 Cr.P.C. Section 428 - Period of Detention undergone by the accused to be set off against the sentence of imprisonment:- Where an accused person has, on conviction, been sentenced 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." 12. As we have pointed out earlier, in Group II, III and III-A cases, Court has passed specific direction ordering set off for particular spells. If the prosecution was so aggrieved that the convict cannot claim double benefit while undergoing sentence in one case and is ineligible to get set off in another case, prosecution https://hcservices.ecourts.gov.in/hcservices/ ought to have challenged the Judgment of the Court and the warrants in Group II, III and III-A cases. Having not challenged the Judgment of the Court, now it is not open to the prosecution to contend that convict is ineligible to get double benefit for the same period spent as conviction for one group of warrant and as under trial prisoner in another group of warrants. 13. Considering the true effect of expression "same case" appearing in Sec.428 Cr.P.C., in 2001 SCC (Cri) 1106 [State of Maharashtra and another v. Najakat Alia Mubarak Ali], the Supreme Court has held as under:- "15. The purpose is therefore clear that the convicted person is given the right to reckon the period of his sentence of imprisonment from the date he was in jail as an under trial prisoner. In other words, the period of his being in jail as an under trial prisoner would be added as a part of the period of imprisonment to which he is sentenced. We may now decipher the two requisites postulated in Section 428 of the Code: 1.During the stage of investigation, enquiry or trial of a particular case the prisoner should have been in jail at least for a certain period. 2.He should have been sentenced to a term of imprisonment in that case. 16. If the above two conditions are satisfied then the operative part of the provision comes into play i.e. if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of investigation, enquiry or trial, the convicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words "if any" in the section amplify that if there is no balance period left after such deduction the convict will be entitled to be set free from jail, unless he is required in any other case. In other words, if the convict was in prison, for whatever reason, during the stages of investigation, enquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him should be counted as part of the sentence imposed on him. 17. In the above context, it is apposite to point out that very often if happens, when an accused is convicted in one case under different counts of offences and sentenced to https://hcservices.ecourts.gov.in/hcservices/ different terms of imprisonment under each such count, all such sentences are directed to run concurrently. The idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact and in effect be imprisonment for other counts as well. 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. Earlier in Raghbir Singh v. State of Hariyana [(1984) 4 SCC 348 : 1984 SCC (Cri) 616, the Supreme Court has held as under:- "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" 15. In the above said case, it was decided that the accused cannot claim a double benefit by getting set off the period during which he was in prison based on the conviction for another case. In short, it was held therein that the accused can get the benefit of set off of the cases but not in both. However, in Najakat Alia Mubarak Ali's case, it has been held that Section 428 Cr.P.C. does not contain any indication that if a person was in jail as an under trial prisoner in the second case, the benefit envisaged in the Section can be continued to him in respect of the second case. Further, it was also observed that 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 https://hcservices.ecourts.gov.in/hcservices/ case in which the sentence is imposed. 16. Following Najakat Alia Mubarak Ali's case, the Division Bench of this Court in CDJ 2003 MHC 070 [Kora Karuppan @ Chinnathambi v. Superintendent of Prisons] has held that accused can suffer incarceration of more than one sentence at one and the same time and that it is not necessary that the period of incarceration should be calculated separately or should be so calculated as regards only the first offence and not against the following offences. 17. The ratio of the decision in Najakat Alia Mubarak Ali's case squarely applies to the case on hand. In the instant case while undergoing the substantive sentence in one group of cases, the convict was produced under Prisoner's Transit Warrant in other group of cases and he was treated as remand prisoner in the next group of cases. Though, Petitioner's son was suffering incarceration in connection with other cases as under trial prisoner, he was also in remand in other group of cases. We find no force in the contention of the learned Additional Public Prosecutor that while the prisoner is undergoing substantive sentence in one case, he cannot be treated as remand prisoner in another case to invoke the benefit of Sec.428 Cr.P.C. 18. The next point falling for our consideration is whether conviction and sentence of imprisonment imposed for the second Group of cases would commence after the expiry of imprisonment to which Petitioner's son was sentenced prior to the conviction in the second Group of cases. 19. Learned counsel for the Petitioner contended that the sentence in the second Group of cases would commence from the date of conviction i.e. 08.01.2008 and the date of release would be 02.05.2009. 20. Per contra, learned Additional Public Prosecutor submitted that as per Section 427 Cr.P.C. when a person already undergoing sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court issues a direction for concurrent running of sentences. Learned Additional Public Prosecutor would further submit that in the second and third Group of cases, Court did not specifically mention that all the conviction warrants are to run concurrently with each other and therefore, third Group of warrants are to run consecutively and the actual date of release would be 02.09.2010. 21. Section 427 Cr.P.C. reads as under:- https://hcservices.ecourts.gov.in/hcservices/ "Section 427 - Sentence of offender already sentenced for another offence:- (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. 22. Section 427 Cr.P.C. fixes the time from which a sentence passed on an offender who is already undergoing another sentence should run. The general rule is that a sentence commences to run from the time of its being passed, but Section 427 Cr.P.C. creates an exception in the case of persons already undergoing imprisonment and postpones the operation of the subsequent sentence until after expiry of the previous sentence. As a result, subsequent sentence shall start running after the expiry of first sentence of imprisonment. It is true that the aforesaid general rule can be changed by an order of the Court. The discretion, therefore, clearly lies with the Court to make the sentence in the subsequent trial to run concurrently with the sentence in the previous one. The power conferred on the Court under Sec.427 Cr.P.C. to order concurrent running of sentences is discretionary. Such discretion pre-supposes that it will be exercised on sound principles. Therefore, in the absence of a direction that the sentence of imprisonment in different cases would run concurrently, conviction in the subsequent group of cases will begin to run after the expiry of the conviction period in the first group. Question No.2(2) is answered accordingly. 23. In the instant case on hand, in the second Group of cases, Court has not directed any concurrency of sentence where the accused was tried separately for different offences and the previous conviction was not brought to the notice of the Court which convicted him subsequently and when no order was passed whether the sentences were to run concurrently or consecutively, in the absence of any direction, as per Section 427 Cr.P.C. the sentences are normally to run consecutively. In the absence of any direction in the subsequent convictions for concurrent running of sentence, as per Section 427 Cr.P.C., the sentences would run consecutively. Question No.2(1) is answered accordingly. 24. As we have pointed out earlier, in the second Group of warrants the sentence will commence on 09.01.2009 after the expiry of two years sentence awarded in the first group of cases. Calculating 480 days from 09.01.2009, the date of release of detenu would be 28.04.2010. Further detention of detenu therefore cannot be said to be illegal. https://hcservices.ecourts.gov.in/hcservices/ 25. In the result, the Habeas Corpus Petition is disposed of with an observation that the date of release of Petitioner's son Javith @ Sayeed Yusuf, son of Syed Ibrahim would be 28.04.2010. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar bbr To 1. The Secretary to Government, The State of Tamil Nadu, Home (Prison) Department, Fort St. George, Chennai-9. 2. The Superintendent of Police, Central Prison, Salem. 3. The Inspector of Police, Tirupur South Police Station, Tirupur, Tirupur District. 4.The PUblic Prosecutor, High Court, Masdras 1 cc To Mr.P.S.Kothandaraman, Advocate, SR.43476 in H.C.P.No.1083/2009 vsn(co) pmk.10.9.2009. https://hcservices.ecourts.gov.in/hcservices/