IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.112 of 2010 BHOLA PRASAD GUPTA Versus STATE OF BIHAR & ORS ----------- 3 29.9.2010 The petitioner seeks a direction to the respondent authorities to release him from the imprisonment as he had already served out the sentence of three years under section 392 Cr.P.C. awarded by the learned Magistrate in Trial No.2122 of 2007 arising out of Gardanibagh P.S. Case No.780 of 2006. The prosecution case in short is that the petitioner has been made an accused in Gardanibgh P.S. Case No.780 of 2006 dated 31.8.2006 under section 392 of the Penal Code. He was remanded in the aforesaid case on 21.9.2006 and has been convicted by judgment and order dated 23.11.2007 under section 392 of the Penal Code and sentenced to under go R.I. for three years apart from payment of fine of Rs.3000/-. The petitioner was subsequently made an accused in Gardanibagh P.S. Case No.784 of 2006 dated 1.9.2006 under sections 25(1b)A/26/35 of the Arms Act and 3/4 of the Explosive Substance Act and by judgment and order dated 18.6.2007 he has been convicted under section 25(1-B)a/35 of the Arms Act and sentenced to under go R.I. for two years apart from payment of fine of Rs.2000/-. The petitioner was also convicted under sections 26/35 of the Arms Act and sentenced to under go R.I. for two years besides payment of fine of Rs.1,000/-. However, both the sentences were directed to be run concurrently. 2 Learned counsel for the petitioner submits that in fact Gardanibagh P.S. Case No.784 of 2006 was decided earlier on 18.6.2007. In the aforesaid case he has already served out his imprisonment. Besides this he has made payment of fine as well as was directed in the judgment. He further submits that the conviction of the petitioner in Gardanibagh P.S. Case No.780 of 2006 was passed on 23.11.2007 in which he was convicted and sentenced to under R.I. for three years besides fine of Rs.3,000/- .The petitioner was remanded in the aforesaid case on 21.9.2006 and prior to conviction in the instant case he had already remained in custody from 21.9.2006 to 17.6.2007 for about nine months. He also earned some remission in the meantime. A counter affidavit has been filed on behalf of respondent nos.2 and 3 wherein vide Annexure-A a detail calculation of the release of the petitioner has been annexed. Learned State counsel submits that there was no order by the learned Magistrate that subsequent conviction would run concurrently with the previous sentence. Learned counsel for the petitioner submits that so far the petitioner in both the cases has remained in custody for more than four years. Unfortunately there was no direction in the subsequent conviction that the period of conviction would run concurrently. As a result the petitioner is still in prison. Had such order been passed the petitioner would have come out from the prison more than a year back itself. It would be apt to quote Section 427 Cr.P.C. which 3 runs as under: “427. Sentence on 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; 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”. Thus, it would be apparent from perusal of section 427 Cr.P.C. that subsequent sentence would run concurrently if there is one such order by the learned Magistrate. On this basis, the learned State counsel submits that only when petitioner serves out whole sentence in first case, the period of sentence of imprisonment in the second convicted case would start. As there is no such order, calculation of a period of sentence in Gardanibagh P.S. Case No.780 of 2006 would begin on the day, the conviction and sentence in Gardanibagh P.S. Case No.784 of 2006 stands completed. So far as question of law is concerned, this court is in 4 agreement with the submission of learned counsel for the petitioner that unless there is order in subsequent conviction, in respect of running of both sentences concurrently, the period of sentence in two different cases, save and except one involving life imprisonment would run after completion of period of the first conviction. The issue is whether in the facts and circumstances of the case the Magistrate has erred in not directing that the second sentence of the petitioner to run concurrently. On such issue, no fix jacket formula can be laid down. The case has to be judged on the basis of the facts appearing in the cases concerned. It would appear that in Gardanibagh P.S. Case No.780 of 2006, the petitioner was not named in the F.I.R. Further more there was no earlier case against him prior to the aforesaid case. In such circumstances, this court is of the view that the trial court ought to have directed that the conviction and sentence in both the cases should run concurrently. Accordingly, this court directs that the conviction and sentence of the subsequent conviction namely Gardanibagh P.S. Case No.780 of 2006 in which the petitioner has been convicted under section 392 of the Penal Code would run concurrently with the conviction and sentence awarded in Gardanibagh P.S. Case No.784 of 2006. It is not in dispute that the petitioner continuously remained in custody since the date of conviction in Gardanibagh P.S. Case No.780 of 2006 and earlier also he was in custody in the aforesaid case for more than eight months. The petitioner has 5 KHAN also paid requisite fine in both the cases. Thus, the petitioner has served more than the period of imprisonment. The petitioner is directed to be released forthwith from the imprisonment, if he is not wanted in any other case. With the aforesaid observations and directions, this writ petition stands disposed of. (S.P.Singh,J)