Gauhati High Court
Kuddus Ali @ Kuddu Ali & 2 Ors vs The State Of Nagaland & Anr on 5 November, 2015
Author: P.K.Saikia
Bench: P.K. Saikia
1
IN THE GAUHATI HIGH COURT
(THE HIGH COUR T OF ASSAM , NAGALAND, M IZOR AM AND AR UNACHAL
PR ADESH )
CR L. Appeal No. 262 of 2015
1. Kuddus Ali @ Kuddu Ali
S/o Karim Ali,
P.O./P.S.- Dhing District - Nagaon,
Assam.
2. Sahabuddin @ Sahajuddin
S/o - Lt. Horjot Ali
Village - Jurirpar, P.S. - Jurirpar,
District - Nagaon, Assam.
3. Shahjahan Ali,
Village - Hatilua Pothar, P.S.- Boragaon,
P.O. - Tengaguri, District - Nagaon.
Assam.
..... Appellants
-Versus-
1. The State of Nagaland
2. Abdul Rahim
S/o Hojor Ali,
Village - Goria Pothar,
P.S. - Dhekiajuli, District- Sonitpur,
Assam, presently residing at industrial
Village, Diphu Road, Dimapur, Nagaland.
.......Respondents
2
BEFORE
THE HON'BLE MR.JUSTICE P.K. SAIKIA
For the appellants : Mr. M.H. Ahmed & Mrs. S.B. Gogoi, Advocates.
For the respondent : Ms. M. Kechi, Addl. P.P.
Date of hearing : 05.11.2015
Date of Judgment : 05.11.2015
JUDGMENT AND ORDER (ORAL)
(P.K.Saikia, J) This appeal is directed against the judgment dated 03.07.2012, passed by learned Sessions Judge, Dimapur, in G.R. Case No. 185/2005 corresponding to Dimapur West P.S. Case No. 51/05. Under the said judgment, the appellants, namely, (1) Kudus Ali @ Kuddu Ali, (2) Sahabuddin @ Sahajuddin & (3) Shahjahan Ali along with others stood convicted of offences u/s 397 IPC read with Section 28 of the Arms Act and were sentenced to undergo RI for 10 (ten) years on each count aforesaid.
2. Being aggrieved by and dis-satisfied with the judgment aforesaid, the appellants, namely, namely, (1) Kudus Ali @ Kuddu Ali, (2) Sahabuddin @ Sahajuddin & (3) Shahjahan Ali (hereinafter referred to as accused persons), preferred this appeal citing several infirmities in the judgment under challenge.
3. We have heard Mr. M.H. Ahmed, learned counsel for the appellants and Ms. M. Kechi, learned Govt. Advocate, Nagaland.
4. The case, projected by prosecution, in short, is that on 11.05.2005 at about 2.10 am, some unknown miscreants fired upon the son of one Shampur Ali while he was trying to save his neighbour who was attacked by robbers. On the basis of such information, Dimapur West P.S. Case No. 51/05 u/s 397 IPC and Section 28 of the Arms Act (corresponding to G.R. Case No. 185/2005) was registered and investigation was ordered.
5. In due course, charge sheet was submitted u/s 397 IPC and Section 28 of the Arms Act against as many as 10 (ten) accused persons, namely, (i) Hukum Ali, S/o Sudiruddin, (ii) 3 Haijul Ali, S/o Ismail Ali, (iii) Babul Hussain, S/o Umar Ali, (iv) Sahab Uddin, S/o Lt. Horjot Ali, (v) Nurjamal, S/o Habizuddin, (vi) Kudus Ali, S/o Korim Ali, (vii) Panas Ali, S/o Sidik Ali,
(viii) Abdul Kalam, S/o Saibul Islam, (ix) Shajan Ali, S/o Izzat Ali and (x) Abbas Ali and they were put on trial. On the conclusion of trial, the learned Trial Court convicted all these accused persons of offences u/s 397 IPC and Section 28 of the Arms Act and sentenced them to various terms of imprisonment. The relevant part of the judgment in question is reproduced below : -
"In view of the above findings, I hold that the prosecution had successfully prove the charges against the accused persons u/s 397 IPC and S. 27 Arms Act. Accordingly, I hereby convict all the accused persons namely, (i) Hukum Ali, S/o Sudiruddin,
(ii) Haijul Ali, S/o Ismail Ali, (iii) Babul Hussain, S/o Umar Ali,
(iv) Sahab Uddin, S/o Lt. Horjot Ali, (v) Nurjamal, S/o Habizuddin, (vi) Kudus Ali, S/o Korim Ali, (vii) Panas Ali, S/o Sidik Ali, (viii) Abdul Kalam, S/o Saibul Islam, (ix) Shajan Ali, S/o Izzat Ali and (x) Abbas Ali (absconder) u/s 397 IPC and Section 27 of the Arms Act. The punishment u/s 397 IPC is punishable with imprisonment for not less than 7 years and u/s 27 Arms Act for not less than 3 years. Therefore, in my considered view it will be in the interest of justice to award the minimum punishment of 7 years and 3 years respectively which I accordingly sentence them to undergo Rigorous Imprisonment. But the fact remains that all the accused persons were earlier convicted u/s 396/34 IPC and 25 (1) (a) of Arms Act by the judgment and order dated 09/07/10 in GR 491/05 corresponding to Dimapur (E) PS C/No. 158/05. In the said case, accused Hukum Ali and accused Shajan Ali were sentenced to undergo imprisonment for 20 years whereas the accused persons namely (1) Haijul Ali, (2) Babul Hussain, (3) Sahab Uddin, (4) Nurjamal, (5) Kudus Ali, (6) Panas Ali and (7) Abdul Kalam to undergo 10 years R.I. Hence, the present conviction to undergo 10 years of RI shall commence at the expiration of the previous sentence u/s 427 Cr.P.C. in other words, the sentence passed in this case will commence from the date when the imprisonment pronounced in GR 491/05 expires."
6. Mr. Ahmed, learned counsel for the appellants submits that the appellants are not going to contest the finding of the court below on merit but since they had already served out the sentences imposed upon them, they are required to be released forthwith. In that connection, it has been submitted that appellants were arrested on 23.11.2005 and have been in detention ever since.
47. The learned counsel for the appellants further submits that the judgment in question in this appeal had also been challenged by other 7 (seven) accused persons who stood convicted under the same judgment along with the appellants herein. The appeal, so preferred by those accused persons was registered as Crl. Appeal No. 55/2013. Such appeal was disposed of by this Court vide judgment and order dated 12.03.2012.
8. While delivering the judgment, this Court concluded that the sentences, imposed upon the appellants therein for having committed offences u/s 397 IPC and Section 27 of the Arms Act, are to run concurrently. In view of such judgment, other 7 (seven) accused persons were already released after being in detention for seven years.
9. Since the present appellants are similarly situated with the appellants in Crl. Appeal No. 55/2013 in all respects, they are required to be given the similar treatment. In that view of the matter, the present appellants are required to be released forthwith since they have already being in detention for about 10 years till date.............................. argues learned counsel for assailants.
10. I have heard Ms. M. Kechi, learned Govt. Advocate, Nagaland who supported the contention raised by counsel for the appellants.
11. Before we proceed further, we find it necessary to have a look at the judgment rendered in Crl. Appeal 55/2013. The relevant part of the judgment in Crl. Appeal No. 55/2013 is reproduced below :-
"Heard Mr. M.H. Ahmed, learned counsel for the accused appellant as well as Ms. M. Kechee, learned G.A., Nagalnd.
2. This appeal is directed against the judgment and order dated 3.7.2012 passed by the District & Sessions Judge, Dimapur, in GR Case No. 185/2005, by which along with others, the accused appellant has been convicted under Section 397 IPC R/W Section 28 Arms Act. Upon such conviction, he has been sentenced to undergo RI for 10 years. The appellant is aggrieved by that part of the judgment, by which, it has been provided that the period of sentence of RI for 10 years would commence from the expiry of the period of sentence of 7 years and 3 years 5 respectively imposed on the accused in connection with another case earlier.
3. The accused appellant was arrested on 20.11.2005 in connection with GR 491/2005 (corresponding to Dimapur (E) P.S. Case No. 158/05). Consequent upon trial, he was convicted on 9.7.2010 with the sentence of 10 years imprisonment. In the said case, the charges proved against the accused appellant were under Section 396/34 IPC and Section 25(1)a of the Arms Act. While undergoing imprisonment from 20.11.2005, he was also shown arrested on 23.11.2005 in connection with another case namely GR 185/05 (corresponding to Dimapur West P.S. Case No. 51/05) under Section 397 IPC R/W Section 28 Arms Act. It is this case in respect of which the present appeal has been preferred challenging the impugned judgment of conviction dated 3.7.2012. As noted above, it is that part of the order, by which, the aforesaid provision of commencement of sentence upon expiry of the earlier sentence that has been challenged in this appeal.
4. Mr. Ahmed, learned counsel for the accused appellant placing reliance on the decisions of the Apex Court reported in (2001) 6 SCC 311 (State of Maharastra Vs. Najakat Alia Mubarak Ali); (2009) 5 SCC 238 (State of Punjab Vs. Madan Lal) and the Division Bench judgment of this Court reported in 1982 CRI L. J.
1793 (Ealrinfela Vs. State of Mizoram) submits that upon conviction of the accused appellant in the previous case i.e. GR 491/05, the accused appellant has completed the period of sentence i.e. RI for 10 years on 2.9.2014. According to him since the accused appellant was shown arrested on 23.11.2005, during subsistence of earlier GR Case No. 491/05, the period of detention the accused appellant has already undergone is required to be set off in respect of the judgment of conviction dated 3.7.2012 challenged in this appeal.
5. As noted above, by the impugned judgment of conviction, the accused appellant has been sentenced to undergo RI for 7 and 3 years respectively for the offence under Section 397 and Section 27 of the Arms Act. Needless to say that both the sentences are to run concurrently.
6. In Ealrinfela (supra), the Division Bench of this Court dealing with the provision of Section 428 CrPC held that if an accused is arrested and detained in two cases, computation for period of set off, must be done separately and the accused is entitled to claim set off period in both cases. On the basis of the discussions made in the judgment, the Division Bench reached 6 the following conclusion in paragraph-7 of the judgment and held thus in paragraph-8 of the judgment:
"7. ................. ................. ................. In the result, we reach the conclusion that if an accused is arrested and detained in two cases the computation for the period of set off must be one separately and he shall be entitled to claim set off the period in both the cases.
8. Now let us consider as to whether on conviction of the accused on 12.1.1981 in GR Case No. 496/80 changed to that of the convict in the latter case. The accused undoubtedly became a convict in the former case, but his status in GR Case No. 456/80 remained and continued to remain un-changed until his conviction on 18.2.81. His conviction in the former case or change of his status in that case has had nothing to do with GR Case No. 456/80. There is no provision under the CrPC or as a matter of fact in any other law including Sections 3(3) and 27(3) of the Prisons Act, 1894 which alerts the status of UTP to that of a convict before his conviction. In our opinion, the status of the petitioner in GR Case No. 456/80 continued to remain as UTP until his conviction on 18.2.1981. Under these circumstances, the accused is entitled to set off in GR Case No. 456/80 from the date of his arrest (6.9.80) to the date of his conviction (18.2.81). There is no wrangle at the bar t6hat during the entire period he was in detention during the course of the investigation, inquiry or trial of the case."
7. The aforesaid decision was referred to by the Apex Court in Najakat Alia (supra). In that case also, the Apex Court was concerned with the purpose and conditions for applicability of Section 428 (set off). Dealing with the object of criminal justice system it was held thus:
"17. In the above context it is apposite to point out that very often it happens when an accused is convicted in one case under different counts of offences and sentenced to 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 count 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 7 period of detention undergone by him. Nothing more can be made out of the collocation of those words.
19. Various High Courts have expressed on this question. A Division Bench of Delhi High Court has dissented from a contrary view taken by a Single Judge of that High Court and held in K.C. Das vs. The State (1979 Criminal Law Journal 362) that the statute does not make any distinction between the first case and the second case for application of Section 428 of the Code. A Division Bench of the High Court of Gauhati in Lalrinfela vs. State of Mizoram and ors. (1982 Criminal Law Journal 1793) has adopted the same view. Lahiri and Hansaria, JJ, said in the said decision that if the accused is simultaneously arrested and detained in two or more cases and on conviction obtains set off for the period of his detention in the first case he is not ineligible to obtain set off for the period in the subsequent cases; in each case the court is to count the number of days the accused was in such detention separately and the liability to undergo imprisonment on conviction should be restricted to the remainder of the terms of the imprisonment imposed on him in that case.
21. We have no reason to think that the High Courts mentioned above have gone wrong in taking the view that Section 428 of the Code permits the accused to have the period undergone by him in jail as an under-trial prisoner set off against the period of sentence imposed on him irrespective of whether he was in jail in connection with the same case during that period. We therefore, respectfully dissent from the view expressed by the two Judge Bench of this Court in Raghbir Singh vs. State of Haryana <http://indiankanoon.org/doc/666703/> reported in (1984) 4 SCC 348."
8. In Madan Lal (supra), the Apex Court noticing the fact that separate complaints had been filed in respect of different cheques and conviction recorded by separate courts in terms of Section 138 of the Negotiable Act, held that the High Court rightly directed the sentence was to run concurrently. In paragraph-5 of the said judgment, the decision in Najakat (supra) has been referred to.
9. In the instant case and as noted above, the accused appellant is all along in jail custody ever since he was arrested on 20.11.2005 in connection with GR Case No. 491/2005. While in custody as under trial prisoner, he was again shown arrested on 23.11.2005 in connection with another case namely GR Case No. 185/2005. As submitted by Mr. Ahmed, learned counsel for the accused appellant, upon conviction in the former case with the sentence of RI for 10 years, the appellant has already completed the same on 2.9.2014. As regards the second conviction, in respect of which the present appeal has been filed, he has been convicted with the sentence of RI for 7 years. Such conviction is dated 3.7.2012.
810. In view of the impugned judgment and the observations made therein, the sentence of RI for 7 years is to run upon expiry of the period of sentence of RI for 10 years in the former case, which according to the learned counsel for the accused appellant had expired on 2.9.2014. As per the order of the learned Trial Court, the period of sentence of RI for 7 years will run from 3.9.2014, if the earlier sentence had expired on 2.9.2014. It is this part of the direction of the impugned judgment, which has been challenged by the accused appellant.
11. In view of the aforesaid law laid down by the Apex Court as well as by the Division Bench of this Court, I am of the considered opinion that the period of imprisonment of the accused appellant had already undergone during pendency of the GR Case No. 185/05 shall stand set off as per the provision of Section 428 CrPC. Consequently, if the petitioner has already completed 7 years of imprisonment provided for vide the impugned judgment of conviction taking into account his period of detention, he will be entitled to get released forthwith, if not wanted in any other case. According to the learned counsel for the accused appellant, the said period of 7 years imprisonment, the appellant had completed on 23.11.2012.
12. The appeal is allowed to the extent indicated above. The appellant shall be released forthwith, if not wanted in any other case.
13. Registry shall send back the LCR along with a copy of this judgment and order."
12. On considering the submissions, advanced by the learned counsel for the parties, I am of the opinion that the appellants herein are very similarly situated with the appellants in Crl. Appeal 55/2013. Therefore, the benefits given to appellants therein are required to be given to appellants herein. Being so, appellants herein are also required to be released forthwith since they have already spent a period close to 10 (ten) years in jail following their conviction in G.R. Case No. 185/2005.
13. In view of above, this appeal is partly allowed to the extent indicated above.
14. The concerned authority is directed to release the appellants forthwith, if they are not required in connection with any other case.
15. Registry will issue release order immediately.
JUDGE 9 arup