IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.170 of 2007 ANITA SHARMA @ REETA DEVI Versus THE STATE OF BIHAR & ORS ----------- O r d e r 6 14.8.2008 Heard learned counsel for the petitioner and the State. The petitioner, who is the wife of the convict Krishna Nandan Sharma @ Krishnadeo Sharma, prays for release of her husband from jail as he has already completed more than 14 years of incarceration in S.T.No.134 of 1980 in which punishment of life sentence was inflicted by the 2nd Additional Sessions Judge, Gaya vide judgment dated 31.5.1984. She states that while calculating the period of detention/remission the authorities have not taken into reckoning a sizeable period of over three years that he remained in jail from 31.5.1984 to 5.12.1986, and from 31.8.1999 to 2.4.2000. Learned counsel submits that petitioner’s husband also figured as an accused in a subsequent case being Danapur (G.R.P.) Case No.3 of 1993, under sections 420, 467, 468 and 471 of the Penal Code and sections 25 and 26 of the Arms Act. In the aforesaid case he - 2 - was convicted on 1.3.2005.It is gathered from State’s affidavit that maximum sentence of three years was awarded and all sentences were ordered to run concurrently. This application unfortunately is shorn of necessary details. The P.S. Case number of first case giving rise to S.T.No.134 of 1980 is not mentioned. The sentence awarded to the petitioner in the second case on 1.3.2005, namely Danapur (G.R.P.) Case No.3 of 1993 is also not specified. Nevertheless, this court is able to gather some facts from the affidavit filed by the State as also notice above. The case of the petitioner is that her husband has already completed 14 years of imprisonment, in S.T.No.134 of 1980 and as such he ought to have been released. It is also her case that while calculating the total period that her husband has remained in jail, the period from 31.5.1984 to 5.12.1986 and 31.8.1999 to 2.4.2000 has not been taken into reckoning. It is also submitted that her husband is entitled to be released from prison, as he has also served out the maximum period of three years that was awarded to him vide - 3 - judgment dated 1.3.2005, passed in Danapur G.R.P. Case No.3 of 1993, under sections 420, 467, 468 and 471 of the Penal Code and sections 25 and 26 of the Arms Act. In the aforesaid case the maximum sentence that was awarded was three years and all the sentences in the case were ordered to run concurrently. Learned counsel for the petitioner submits that the petitioner was convicted for life imprisonment, on 31.5.1984, and as such taking 20 years of sentence in lieu of life sentence, probable date of release would have 30.5.2004, by adding 20 years. He submits that he was on bail from 2.9.1988 to 30.5.1998 during the pendency of appeal. Thus his date of possible release would shift to December, 2013 by adding 9 years 9 months to the probable date of release. However, he has till date i.e. 28.6.2007 has been provided total remissions of 552 days, inclusive of ordinary and special remissions. However, the period he remained in custody from 1.6.1984 to 2.9.1988 has not been included. Thus total period that he has remained in jail without even taking into account the - 4 - permissible remissions allowed to general prisoners, the petitioner has remained in custody from 31.5.1984 to 2.9.1988, for 4 years 3 months and 2 days and again from 1.6.1998 uptil dated 14.8.2008) = 10 years 2 months 13 days totaling 14 years 5 months 5 days. The aforesaid fact has not been denied by the State in its affidavit. The State/State Remission Board is bound to take into account the aforesaid period the husband of the petitioner has remained in custody and pass fresh orders in accordance with law. The State will also take into consideration its own policy decision/executive instructions, regarding grant of remissions under section 433A of Cr.P.C., where under life imprisonment ordinarily works out to be actual imprisonment of 14 years. This court is not able to appreciate the plea of respondent no.5 incorporated in paragraph 12 of their affidavit. The relevant portion of the affidavit is reproduced herein below for deciding the issue itself: “Again it is pertinent to state here that vide Jail Manual 486 the sentence in - 5 - another case will be started from the next day after the completion of the first life sentence”. The meaning given to Rule 486 by respondent no.5 in its counter affidavit is totally misfounded. Before I examine the aforesaid issue, it would be expedient to have a look at Rule 486, which is quoted herein below: “ 486- When a prisoner is sentenced either on the same day or on following dates, to two or more sentence to be served consecutively, the date of release shall be calculated as if the sum of the terms was awarded in one sentence” The aforesaid provisions does not in no way refer to sentences passed in two different cases, nor does it make any reference to any life sentence in respect of first case. As such relevant extract of affidavit of respondent no.5 quoted above is fallacious. Rule 486 merely states that if a person in a given case is awarded sentence on the same day or on the next dates, and if he is - 6 - convicted for two or more offences, and the sentences thereof are ordered to run consecutively, the date of release shall be calculated as if the sum of the terms was awarded in one sentence. Rule 486 no where refers two different convictions, rather it makes reference to different sentences. A case can be visualized where an accused is tried for more than one or two offences. The trial Judge may pass the necessary sentence in respect of all the offences on some date or may pass the sentences for different offences on different dates. Thus in view of the aforesaid provisions, if a person is convicted in a case for 2-3 offences and if the Magistrate orders all the sentences to run consecutively, then only the period of one sentence, will start after completion of the period of other sentence. The general provision regarding execution of sentence when a person is convicted in two different cases has been provided in section 427 Cr.P.C. Before we examining this issue it would - 7 - be useful to reproduce section 427 of Cr.P.C. which is 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. - 8 - (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”. In the instant case we are concerned with sub section (2) of section 427 Cr.P.C. The aforesaid sub-section deals with a situation where a person already under going 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. In the instant case the petitioner has been sentenced for life in S.T.No.134 of 1980 vide judgment dated 31.5.1984 by the 2nd Additional Sessions Judge, Gaya. Subsequently in a different case namely Danapur (G.R.P.) Case No.3 of 1993, by judgment dated 1.3.2005, he has been convicted for maximum of three years and all the sentences have been ordered - 9 - to run concurrently. In view of the provisions of sub-section (2) of section 427 Cr.P.C., the sentences in respect of both the earlier and subsequent conviction would run concurrently. In view of such clear mandate in respect of execution of sentence in two subsequent cases, the sentences passed in both the aforesaid cases of the petitioner would run concurrently, and not after the completion of the conviction in the first case. The view of mine also finds support from the judgment of Hon’ble Apex Court in the case of State of Maharastra and another Vs Najakat Ali Mubarak Ali, 2001(6) SCC 311. In the aforesaid case, the Apex Court has held that detention of a person would be reckoned from the date he or she has been taken into custody in that particular case and would also run concurrently with detention in other case. Having heard counsel for the parties and on going through the materials on record, this court directs the Respondent-State as well as State Sentence Remission Board to pass afresh order in respect of probable date of release of - 10 - KHAN the husband of the petitioner from custody in the light of the observations made above, within two months from the date of receipt/production of a copy of this order. With the aforesaid observations and directions this application is allowed. Let a copy of this order be handed over to the State counsel for its onward communication. (Samarendra Pratap Singh,J)