IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.835 of 2011 Prabhu Sah, Son of Kamal Sah, resident Village-Chandiha, P.S.-Purnahiya, District-Sheohar. –Petitioner. VERSUS 1. The State of Bihar through Secretary Home (Police), Bihar Government, Patna. 2. The Inspector General of Police (Jail), Bihar, Patna. 3. The Deputy Inspector General of Police (Jail) Bihar, Patna. 4. The District Magistrate, Sitamarhi. 5. The Jail Superintendent of District Jail, Sitamarhi. –Respondents. ***** For the Petitioner : Mr. Dinesh Jha, Adv. For the State : Mr. Tej Bahadur Singh, Sr. Adv., AAG-VII. Mr. Rajesh Kumar Mishra, AC to AAG-VII. ***** 05 25.10.2011 The petitioner is in custody in district jail Sitamarhi consequent to his conviction in different cases. By this writ application, he seeks release from custody on the ground that if proper calculation is made then he has served out his sentences and/or there is no case in which he can be retained or detained in custody. The facts are not in dispute. State has filed detailed counter affidavit. We have heard the learned counsel for the petitioner and Mr. Tej Bahadur Singh, Senior Advocate, learned A.A.G.-VII on behalf of the State and with their consent this writ application is being disposed of at this stage itself. The present writ application involves interpretation and application of Sections-427 & 428 of the Code of Criminal Procedure, 1973. The primal question that is to be answered is, 2 whether while a person is serving out a sentence, having been convicted in one case and who has been remanded during the said period of sentence custody in another case, can the period of remand be taken into consideration for the purposes of set off against the sentence which is then passed upon conviction in the second case as well? Learned counsel for the petitioner has principally placed reliance on two Division Bench judgments of this Court in the case of Shambhu Nath Singh versus The State of Bihar and others since reported in 2003 (1) PLJR 747 and in the case of Hari Shankar Sah versus The State of Bihar and others since reported in 2003 (3) PLJR 322. Both these decisions have, in fact, followed and applied the judgment of the Apex Court in the case of State of Maharashtra versus Najakat Alia Mubarak Ali since reported in (2001) 6 Supreme Court Cases 311. His submission further would be that the view of the State Government in this regard as apparent from the Circular No.4987 dated 10th November, 2010 as contained in Annexure-4 to the writ application and Annexure-A to the Court affidavit is correct and the subsequent circular staying its operation issued by Jail Directorate being Circular No.5659 dated 22nd December, 2010 being Annexure-3/1 to the writ application and Annexure-A/1 to the counter affidavit is wrong and contrary to law. On the other hand, learned Additional Advocate General- 3 VII places reliance on the decision of the Apex Court in the case of Atul Manubhai Parekh verus Central Bureau of Investigation since reported in 2010 AIR SCW 399 : (2010) 1 Supreme Court Cases 603 : 2010 (1) PLJR 170 which has taken note of Najakat Alia Mubarak Ali (supra) and other decisions. The facts leading to the present controversy are not in dispute and are noted hereunder. We are concerned with three cases in which petitioner has been convicted on different dates. In two of those cases he was in custody prior to conviction as well for different periods. For convenience we choose to refer to the three cases as the first case, the second case and the third case. The first case is Purnahia P.S. Case No.19 of 2005 which was instituted under Section-25 (1-B) and Section 26 of the Arms Act. In this case, he was in pre trial judicial custody as an under trial prisoner for the period 23.04.2005 to 25.07.2006, i.e., 1 year 3 months and 2 days. In this case, he was convicted and sentenced on 26.07.2006 with 3 years of rigorous imprisonment and fine, on failure to pay which additional 3 months imprisonment was awarded. If the period of sentence of 3 years and 3 months fine default period is taken into account then from the date of sentencing his date of release would 25.10.2009. But, in view of the Section-428 of the Code of Criminal Procedure he is entitled to and has been given benefit of set off of under-trial period of 1 year 4 3 months 2 days which would prepone his date of release, thus, to 23.07.2008. In the second case, i.e., Purnahia P.S. Case No.18 of 2005 appertaining to Sessions Trial No.374 of 2005 instituted under Section-364 A of the Indian Penal Code he was convicted on 13.01.2007 and taken into custody for serving life sentence as awarded on the same day. He preferred criminal appeal before this Court and he was granted bail by this Court in the criminal appeal on 09.03.2011. Thus, he was serving life sentence from 13.01.2007 to 09.03.2011 in this second case. But, in view of Section-427(1) his life sentence in this second case would start after completion of the sentence on 23.07.2008 in the first case, as there was no order of the Court in the second case that his sentence would run concurrently with previous sentence. But in this second case he was granted bail, as noticed above, on 09.03.2011, so the period of life sentence, as served by him in the second case, would start from 24.07.2008 up to 09.03.2011 when he was granted bail by this Court in the second case. The third case is G.R. No.1774 /2003 (Tr. No.115/2010), which is a case under Section-25 (1-B) and Section- 26 of the Arms Act. In this case, he was in custody as an under trial first for the period 17.11.2003 to 17.12.2003, i.e., 1 month 1 day. It is not in dispute that while in custody in other two cases serving out sentences, he was remanded to judicial custody in this 5 third case on 21.09.2007. As noticed earlier, in the first case he had been sentenced on 26.07.2006 and was serving out his sentence and in the second case he was convicted and sentenced on 13.01.2007 and, as such, when he was remanded in this third case on 21.09.2007 he was in custody serving out sentence in other cases as well. In this third case, he was sentenced on 16.01.2010 by Sri Prakash Paswan, Judicial Magistrate 1st Class, Sitamarhi. The sentence awarded in this third case was 2 years rigorous imprisonment with further 6 months rigorous imprisonment in default of payment of fine for offence under Section-25 (1-B) of the Arms Act and 2½ years R.I. with 7 months further R.I. for default in payment of fine under Section-26 of the Arms Act. In terms of Section-31 of the Code of Criminal Procedure the sentences were ordered to run concurrently. Keeping this in mind the period of sentence custody awarded in this third case would be the higher of the two punishments as increased by the fine default periods in both the cases because the fine default periods are in addition to the sentence and not concurrent as provided by Section- 64 of the Indian Penal Code. Thus, the total period he would be required to serve under this third case would be 2½ years + 6 months + 7 months. That would total to 3 years and 7 months. Thirteen month period (6+7 months) added as above on account of fine default period would not be so added if he deposits both the fines imposed. It is not disputed by the State that the period of 3 years 6 and 7 months sentence in this third case would be reduced by 1 month and 1 day, being the period in custody as under-trial prisoner between 17.11.2003 to 17.12.2003 in terms of Section-428 of the Code of Criminal Procedure leaving the sentence to be 3 years 5 months 29 days which would run concurrently with life sentence awarded on 13.01.2007, in view of Section 427 (2) of the Code of Criminal Procedure with effect from 16.01.2010 the date when he was sentenced in the third case. According to the State, this would take his period of detention up to 15.07.2013 and, accordingly, on behalf of State, it is submitted that prayer for release is prematured. According to the petitioner, as in the third case he was further remanded on 21.09.2007 and remained in custody till his sentencing in the third case on 16.01.2010, he shall be entitled to the benefit of set off in this case itself in terms of Section-428 Cr.P.C. and if this period of about 2 years, 2 months and 25 days is taken into account then his date of release would stand preponed to June, 2011. State contends that this period from the date of his remand in the third case, i.e., 21.09.2007 up to his conviction in third case on 16.01.2010 cannot be taken into account for set off as he was, in this period, already serving out sentences as awarded in the first and second case and was not an under-trial prisoner rather was a convicted prisoner. This is the specific stand of the State in paragraph-9&10 of its counter affidavit. 7 It is the correctness of these two positions taken by the two parties, that is, to be decided in the present case. In order to appreciate the contentions and the law in that regards it would be appropriate first to notice relevant statutory provisions in this regard which are Sections-31 (1), 427 and 428 of the Code of Criminal Procedure Code and Section-64 of the Indian Penal Code respectively, which are quoted hereunder:- “31.Sentence in cases of conviction of several offences at one trial- (1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.” “427. Sentence on offender already sentenced for another offence.- (1) When a 8 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: Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.” “428. Period of detention undergone 9 by the accused to be set off against the sentence of imprisonment.- Where an accused persons 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: Provided that in cases referred to in section 433-A, such period of detention shall be set off against the period of fourteen years referred to in that section.” Indian Penal Code: “64. Sentence of imprisonment for non-payment of fine.- In every case, of an offence punishable with imprisonment as well as fine, in which the offender is 10 sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.” The first thing that we would like to note is that, inter alia, these Sections give out a scheme for effectuating punishment. The ordinary rule is that sentences awarded are to run consecutively unless the Court directs them to run concurrently, if there be more than one sentence awarded, may be in the same trial [Section-31(1) Cr.P.C.] or different trials [Section-427 (1) Cr.P.C.]. Imprisonment in default of payment of fine or fines are in excess of punishment and, therefore, to be added consecutively and not concurrently [Section-64 of the Indian Penal Code]. The exception being apart from where it is permissible for the Court to order concurrent sentences where a person is first convicted to life sentence and then to other sentences [Section-427(2) Cr.P.C.]. 11 These provisions do not deal with any principle of set off. The principle of set off as against period of conviction detention in the case as against sentence upon conviction was introduced for the first time by this Criminal Procedure Code, 1973 in terms of Section-428 thereof. What is of importance therein is that the period of detention as an under-trial, that is, during the investigation, enquiry or trial of the same case, has to be set off against imprisonment awarded in the same case upon conviction. The Section in terms does not provide for contingency where a person is in custody in different status in different cases. That apparently has given scope for different types of arguments. There may be that a person is arrested or remanded by judicial order in different and distinct cases at different times and is differently on different dates convicted with different sentences. We feel that so long as his custody remains exclusively as under- trial (during investigation, enquiry or trial) such period would be set off in respect of each case individually commensurate to the period of remand in that case as against the sentence in that case. But, where his custody is by virtue of not being an under-trial prisoner exclusively but a convicted person serving out his sentence then his status changes from an under-trial prisoner to a sentence serving prisoner and this period would not be available for set off in any case because his custody is not exclusively as an under trial but primarily as a convict. 12 Now, we may refer to the judgments in this regards. First, we may refer to the judgment of the Apex Court in the case of Government of Andhra Pradesh versus Anne Venkatesware and others since reported in (1977) 3 Supreme Court Cases 298. The petitioner in that case had prayed for three reliefs before the High Court. Firstly, they claimed remission marks for shortening their sentence under rules of Prison Act for the period of their detention. The High Court allowed the same on an analogy of Section-428 Cr.P.C. Secondly, they claimed that in terms of Section-428 Cr.P.C., the period of their preventive detention under MISA should be set off against their sentence upon conviction. This was not allowed by the High Court. Thirdly, having been implicated in substantial criminal case they ought to have been remanded in the said case as they were already suffering preventive detention under MISA and continued virtually up to their conviction. This period should be set off against their conviction sentence. High Court apparently did not accede to this. State preferred appeals (as there were two petitioners) against the first part whereas the petitioners preferred appeal against the second and third part. All four appeals were disposed of by this judgment. The Apex Court allowed the appeal of the State clearly holding in paragraph-5 of the reports referring to Section-428 of the Criminal Procedure Code. That Section only provides for a “set off”. It does not equate “under-trial detention or remission detention with imprisonment on conviction”. The provision to set off expresses a 13 legislative policy. This does not mean that it does away with the difference in the two kinds of detention and puts them on the same footing for all purposes. It further held that the claim of remand under the Prisoners Act was for the Government to work out according to rules where they may grant remission which is exclusively within the province of appropriate Government. So far as the second relief of the petitioners with regard to preventive detention is concerned, the Court clearly pointed out in paragraph-7 of the reports that Section-428 makes it clear that the period of detention which is allowed to be set off against the term of imprisonment on conviction must be during the investigation, enquiry or trial in connection with the “same case” in which he has been convicted. Thus, the detention under preventive detention was not a detention under the case in which they were convicted because by nature of things preventive detention is not detention as an under-trial but when it came to third relief their Lordships granted relief to the petitioners. They rejected State’s argument that as petitioners were under preventive detention, State could not seek nor had sought their remission in substantive criminal case. Their Lordships held that there was no law which prevented the State from seeking remand in such a situation and that being so the benefit could not be denied and as such the period during which they ought to have been remanded in the substantive criminal case would be treated as period when they were under- trial in the case and set off had to be given in terms of Section-428 14 Cr.P.C. Thus, a distinction was drawn between the nature and status of detentions and their inter se effect, namely, preventive detention, detention as under-trail and detention on conviction. The next case we would like to refer is the case of Champalal Punjaji Shah versus State of Maharashtra since reported in (1982) 1 Supreme Court Cases 507. Here the petitioner had claimed set off for the period in which petitioner was under preventive detention under MISA and COFEPOSA. The Court rejected the contention holding that it is only in circumstances where the prisoner would have unquestionably been in detention in connection with a criminal case, if he had not been preventively detained, his preventive detention might be reckoned as detention as an under-trial prisoner or detention pursuant to conviction, for the purposes of Section-428 Cr.P.C. Their Lordships noticed with approval and followed the decision of Anne Venkatesware and others (supra) and the distinctions drawn therein. This is a judgment of three Judges Division Bench. Then, we may refer to the case of Raghvir Singh versus State of Haryana since reported in (1984) 4 Supreme Court Cases 348. In this case, the petitioner was tried in two cases. One case was at Karnal in the State of Haryana and the other was in the Union Territory of Delhi. He wanted benefit of his detention in one case to be set off in the other case. Petitioner was convicted in both the cases by different Courts in the two States. Court in 15 paragraph-6 of the reports clearly held that in such a case the period of detention is really a part of period of imprisonment which he is under going 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. Here again the distinction in the status and nature of detention is maintained. Then, we refer to the case of State of Maharashtra versus Najakat Alia Mubarak Ali since reported in (2001) 6 Supreme Court Cases 311. This is a decision of three Judges of the Apex Court which is a split decision where majority while interpreting Section-428 Cr.P.C. in the facts held that as the petitioner was accused in two cases and remanded in both the cases he was an under-trial in both cases till sentences were passed and as such the period of remand would be available for set off under Section-428 Cr.P.C. in both the cases. They would be entitled to double benefit. The majority disapproved the judgment of the Apex Court in the case of Raghvir Singh (supra). While doing so, their Lordships noticed that it would be the period of remand in each case that would be set off against the sentence imposed in that case and as the petitioner was on remand as an under-trial in both the cases he would be entitled to set off in both the cases for respective period of remand. Then, we may refer to the case of Maliyakkal Abdul 16 Azeez versus Assistant Collector, Kerala since reported in (2003) 2 Supreme Court Cases 439. Here again, the petitioner had sought the period of preventive detention under COFEPOSA to be set off against conviction for an offence under Customs Act, which was not allowed by the Apex Court following its judgment in three Judges case of Champalal Punjaji Shah (supra). Their Lordships held that preventive detention under COFEPOSA is not detention as an under-trial in a case where conviction is ultimately awarded. Then, we may refer to the case of State of Punjab versus Madan Lal since reported in (2009) 5 Supreme Court Cases 238, which is again a judgment of Division Bench of three Judges. The case primarily was in relation to Section-427 of the Code of Criminal Procedure where three convictions were awarded in three cases and the High Court under an application under Section-482 Cr.P.C. allowed the three convictions to run concurrently in terms of Section-427(1) of the Cr.P.C. The State appealed. The High Court had noted that all the transactions related to the family of the respondents and were in relation to cheques issued by the respondents’ family to the complainant party and because they were three cheques, separate complaints were filed. Their Lordships dismissed State’s appeal. While doing so they referred to the judgment of the Apex Court in the case of Najakat Alia Mubarak Ali (supra) and noted that Section-428 of the Criminal Procedure Code postulated two requirements : 17 (1) During stage of investigation, enquiry or trial of a particular case, the petitioner 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. If the two conditions are fulfilled then the operative part of the provisions comes into play and set off is to be granted. We may now refer to a recent decision of the Supreme Court in the case of Atul Manubhai Parekh versus Central Bureau of Investigation since reported in (2010) 1 Supreme Court Cases 603. In this case the question arose for consideration is contained in paragraph-3 and is quoted hereunder:- “3. The short point involved in this application is whether a person, who has been convicted in several cases and has suffered detention or imprisonment in connection therewith, would be entitled to the benefit of set off in a separate case for the period of detention or imprisonment undergone by him in the other cases.” The answer is found in paragraph-14 of the reports. After considering the cases of Champalal Punjaji Shah (supra), 18 Raghvir Singh