IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.879 of 2009 BILTU RABIDAS S/O BARHU RABIDAS R/O VILL.- TISKHOR P.S. MASAURHI DIST. PATNA ---- PETITIONER Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE PATNA. 3. THE JAIL SUPERINTENDENT, ADARSH CENTRAL JAIL, BEUR PATNA. ---- RESPONDENTS. ----------- 03 24.12.2009 Heard Mr. Ajay Kumar Sinha, for the petitioner, and Mr. P.K.Verma learned Assistant Counsel to Standing Counsel no.10.The writ petition is directed against the order dated 27.06.2009, (Annexure-3), whereby respondent no.3 has computed the period spent by the petitioner as under-trial prisoner in two different trials. The respondents have placed on record their counter affidavit. We have perused the materials on record and considered the submissions of the learned counsel for the parties. It appears that petitioner was convicted and sentenced by the Criminal Court in one case. He had remained in custody as an undertrial prisoner for a certain length of time. He was convicted and sentenced in another criminal case, and had remained in custody as an undertrial prisoner for a certain length of time. The petitioner claims that the period spent as undertrial prisoners in the two criminal cases should be separately counted case-wise, whereas respondent no.3 has given the benefit of set-off only in one case. It appears to us that the impugned order falls foul of the judgment of 2 the Supreme Court in the case of State of Maharashtra and another versus Najakat Alia Mubarak Ali (2001)6 SCC 311. Two Division Benches of this Court in the case of Shambhu Nath Singh Vrs. State of Bihar and Ors. reported in 2003(1) PLJR 747, and in the case of Shree Kant Pandey and Ors Vrs. State of Bihar and others reported in 2005(2) PLJR 514, had the occasion to follow the judgment of the supreme Court. Paragraph no.4 of the judgment of this Court in Shambhu Nath Singh (Supra), reproduced hereinbelow, should be adequate guidance to respondent no.3, wherein the relevant portion of the judgment of the Supreme Court is quoted: 4. On behalf of the petitioner, however, it was submitted that a three- judge Bench of the Supreme Court in State of Maharashtra & Anr. Vs. Najakat Alia Mubarak Ali, (2001)6 SCC 311, has taken a contrary view and overruled the earlier decision. By majority decision the Court gave a wider interpretation to the provisions of Section 428 holding that the period of imprisonment undergone by an accused as an undertrial during investigation, inquiry or trial of a particular case-irrespective of whether it was in connection with that very case or any other case-can be set off against the sentence of imprisonment imposed on conviction in that particular case. It would be useful to quote the relevant part of the observation at page 320 of the report as under: “ 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.” 3 Section 428 of the Cr.P.C. is also reproduced herein below for the facility of quick reference. 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. In the result, this writ petition is allowed. The impugned order dated 27.06.2009, (annexure-3) is set aside. Respondent no.3 is directed to re-consider the petitioner’s claim for set- off in terms of Section 428 of the Code of Criminal Procedure Code in the light of the judgment of the Supreme Court in the case of State of Maharashtra and another versus Najakat Alia Mubarak Ali, and the two judgments of this Court, within a period of two weeks from the date of receipt of a copy of this order. Sym ( S.K.Katriar, J.) ( Kishore K. Mandal, J.)