Punjab-Haryana High Court
Ranjit vs State Of Haryana on 14 August, 2024
Neutral Citation No:=2024:PHHC:109374
CRM-M No.6288 of 2015
-1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
116
CRM-M No.6288 of 2015
Date of decision: 14.08.2024
Ranjit ... Petitioner
Vs.
State of Haryana ... Respondent
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Vikas Lochab, Advocate,
for the petitioner.
Mr. Arjun Lakhanpal, Addl. AG, Haryana,
for the respondent-State.
----
MANISHA BATRA, J. (Oral)
1. The instant petition has been filed by the petitioner under Section 482 of Code of Criminal Procedure for setting aside the order dated 11.02.2015 as passed by the Court of learned Additional Sessions Judge, Sonepat in case arising out of FIR No.157 dated 03.06.2008 registered under Section 174-A of IPC at Police Station City Gohana and in connection with Criminal Appeal No.214 of 2013 titled as Hari Om and others v. State of Haryana.
2. Brief facts of the case relevant for the purpose of disposal of this petition are that the present petitioner was nominated as an accused in a case bearing FIR No.318 dated 15.12.2007 registered under Sections 148, 323, 506 and 302 read with Section 149 of IPC at Police Station 1 of 9 ::: Downloaded on - 31-08-2024 02:22:52 ::: Neutral Citation No:=2024:PHHC:109374 CRM-M No.6288 of 2015 -2- Gohana. He was declared a proclaimed offender in the said case. He was later on arrested and then acquitted in the said case. Due to his non- appearance and his being declared a proclaimed offender in the aforementioned case, another case bearing FIR No.157 dated 03.06.2008 under Section 174-A of IPC was registered against him. The petitioner faced trial in the said case and vide judgment of conviction and order on quantum of sentence dated 05.01.2013 and 07.01.2013 respectively, he along with the co-accused was held guilty under Section 174-A of IPC and was sentenced to undergo imprisonment for a period of six months and to pay fine of Rs.1000/- each. In default of payment of fine, he was further sentenced to undergo simple imprisonment for one month. He had deposited the fine. He preferred an appeal against the judgment of conviction dated 05.01.2013 and order on quantum of sentence dated 07.01.2013. This appeal registered as Criminal Appeal No.214 of 2013 was dismissed vide judgment dated 05.02.2015. The petitioner along with the co-accused-convicts had been taken into custody and was committed to jail for undergoing the sentence awarded by the learned trial Court.
3. As pleaded further, the petitioner along with other convicts was taken to District Jail, Sonepat. After considering the fact that he had already undergone sentence for a period of 07 months 03 days and paid of fine of Rs.1000, the jail authorities released him. Then as on 06.02.2015, the learned Additional Sessions Judge passed an order that as no direction was given by the trial Magistrate to set off the period of 2 of 9 ::: Downloaded on - 31-08-2024 02:22:52 ::: Neutral Citation No:=2024:PHHC:109374 CRM-M No.6288 of 2015 -3- sentence already undergone by petitioner and since due to inadvertence in the warrants of sentence prepared by Reader of his Court, direction was given to set off the period of sentence, therefore, fresh jail warrants be issued. He also gave direction to Jail Superintendent to submit report as to whether the convict had been set free or not?
4. The Superintendent, District Jail, Sonepat vide letter bearing endorsement No.903 dated 09.02.2005, intimated the Appellate Court that the petitioner and co-convict Manoj @ Kala had been released on considering that they had already undergone the period of sentence. On receipt of this letter, the Additional Sessions Judge, Sonepat/Appellate Court passed an order on 09.02.2015 which reads as follows:-
"Present: Shri P.K.Bhardwaj Singh Public Prosecutor for the State.
File is put up on receipt of reference from Superintendent District Jail, Sonepat, according to which the convicts Manoj alias Kala son of Balbir and Ranjit son of Ram Kishan, both residents of village Bhanswal Kalan have been released on the same day i.e. on
5.2.2015, the date of decision of the appeal. The instant report is in pursuant to the modified jail warrants. Let warrants of arrest be issued against both the convicts returnable on or before 11.2.2015 for sending them into imprisonment in view of the judgment and order of sentence, of ld. lower court, dated 5.1.2013/7.1.2013 respectively."
5. Then on 11.02.2015, the following order was passed by the learned Additional Sessions Judge, Sonepat which has been impugned in this case:-
"Present: Shri P.K.Bhardwaj, PP for the state.
Warrant of arrest of accused Ranjeet son of Ram Kishan 3 of 9 ::: Downloaded on - 31-08-2024 02:22:52 ::: Neutral Citation No:=2024:PHHC:109374 CRM-M No.6288 of 2015 -4- and Manoj @ Kala son of Balbir were issued received back unexecuted. Executing official ASI Udey Singh appeared and requested for another date to execute the NBW of above said accused. Let, NBWs of both the accused be again issued for 18.02.2015. It is made clear that in case of non-execution of NBW serving police official is directed to appear before the Court for giving his explanation regarding non-execution of NBW, failing which SHO of concerned police station be called for that date."
6. It is argued by learned counsel for the petitioner that the impugned order dated 11.02.2015 was not sustainable in the eyes of law as the Jail Superintendent, District Jail Sonepat had released the petitioner by considering the fact that he had already undergone the period of sentence awarded to him rather he had already remained in custody for a period of 07 months 03 days i.e. exceeding the period of sentence so awarded, as an undertrial and, therefore, no order for issuance of warrants was required to be passed by the learned Appellate Court especially in view of the fact that it had become functus officio as on 06.02.2015 and nothing was brought on record to show that he had not undergone the period as mentioned in the jail custody certificate (Annexure P-4) or there was any other infirmity in the order. With these broad submissions, it is urged that the impugned orders dated 09.02.2015 and 11.02.2015 be set aside and the present petition be allowed.
7. Reply by way of affidavit had been filed by the respondent- State, as per which, since it was mentioned in the order dated 05.01.2013 by the trial Magistrate that the petitioner was on bail in bearing FIR No.157 but in custody in some other case, therefore, the custody 4 of 9 ::: Downloaded on - 31-08-2024 02:22:52 ::: Neutral Citation No:=2024:PHHC:109374 CRM-M No.6288 of 2015 -5- certificate dated 21.02.2015 was not relevant and the petitioner was required to be detained in custody again to undergo the period of sentence awarded to him. However, during the course of arguments, it has been very fairly conceded by learned State counsel that infact there is no material on record to show that the petitioner had not remained in custody for the period as mentioned in the custody certificate Annexure P-4 during the relevant period.
8. I have heard learned counsel for the petitioner as well as learned State counsel at considerable length and have gone through the record.
9. No doubt, it is mentioned in first page of the judgment dated 05.01.2013 passed by learned trial Magistrate, wherein the presence of the parties is recorded that the petitioner was on bail in case bearing FIR No.157 of 03.06.2008 however, from this, no inference can be drawn that the petitioner had not remained in custody from 03.06.2008 to 26.07.2008 and from 29.03.2012 to 07.09.2012 as mentioned in the custody certificate. It is also relevant to mention here that vide order dated 25.10.2018, this Court had given direction for calling a report from the Appellate Court i.e. the Court of Additional Sessions Judge, Sonepat as well as the Chief Judicial Magistrate to explain that the petitioner had undergone the entire sentence awarded to him or not. The reports from the Chief Judicial Magistrate and Additional Sessions Judge had been received and as per the report sent by Sh. Ashwani Kumar, the then 5 of 9 ::: Downloaded on - 31-08-2024 02:22:52 ::: Neutral Citation No:=2024:PHHC:109374 CRM-M No.6288 of 2015 -6- Additional Sessions Judge, the petitioner had remained in custody during the period as shown in the custody certificate and had completed the period of sentence imposed upon him. It has also been submitted that the order dated 09.02.2015 had been passed by the then Additional Sessions Judge inadvertently by not considering the endorsement regarding provisions of Section 428 of Cr.P.C. from the jail warrants.
10. As per Section 428 of Cr.P.C., 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 upon 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 upon him. A bare reading of this provision reveals that the same is mandatory in nature.
11. An argument has been raised by learned State counsel to the effect that since in the judgment passed by the trial Court, the period of sentence already undergone by him was not ordered to be set off, therefore, the said period could not be treated as the period of detention undergone by the present petitioner by the concerned Jail Superintendent and hence, it is urged that there is no illegality in the impugned order. This argument cannot be accepted in view of the fact that the provisions 6 of 9 ::: Downloaded on - 31-08-2024 02:22:52 ::: Neutral Citation No:=2024:PHHC:109374 CRM-M No.6288 of 2015 -7- of Section 428 of Cr.P.C. are mandatory in nature. Undoubtedly, in the judgment/order on sentence as passed by the trial Magistrate, there is no specific mention qua setting of the period of sentence already undergone by the petitioner. However, it is well settled proposition of law that the pre-conviction period of detention suffered, even if it is in the nature of simple imprisonment, would still be liable to be set-off against sentence of rigorous imprisonment. The provisions contained in Section 428 of Cr.P.C. cannot be denied to a convict and the benefit of this provision must be awarded without exception and/or discretion of the Court. Reliance in this regard can be placed upon the observations made by High Court of Manipur in Ksh. Kennedy Singh and others v. State of Manipur and others, 2022 (2) Crimes 340, wherein it was so observed. Reliance can further be placed upon Sukhdev Singh Kahlon v. CBI, Chandigarh and others, 2002 (4) RCR (Criminal) 721, wherein a Coordinate Bench of this Court had observed that ordinarily, set-off should be calculated and granted by the prison authorities without any direct order from the Court; State of Maharashtra and another v. Najakat Alia Mubarak Ali, (2001) 6 SCC 311, wherein it was observed by Hon'ble Supreme Court that if the sentence of imprisonment is longer than the period of detention undergone by the convict during the stage of investigation, inquiry or trial, he need undergo only for the balance period of imprisonment, after deducting the earlier period from the total period of imprisonment. Reference can also be made to Atul Thakur v.
7 of 9 ::: Downloaded on - 31-08-2024 02:22:52 ::: Neutral Citation No:=2024:PHHC:109374 CRM-M No.6288 of 2015 -8- State of Himachal Pradesh and others, (2018) 2 SCC 496, wherein the Hon'ble Supreme Court observed that it was needless to mention that the convict would be entitled to set-off under Section 428 Cr.P.C. It would, therefore, not be necessary for the authorities to insist upon an observation to this effect in the judgment of conviction/order of sentence before extending this statutory benefit to a convict who is otherwise eligible for the same; and to Ranjit Singh v. State of Punjab, 2011 (5) R.C.R. (Criminal) 94, wherein it was observed that a convict is entitled to the benefit of set off under Section 428 of Cr.P.C. even if such benefit is not granted by the concerned Court while sentencing such convict.
12. On applying the ratio of law as laid down in the above cited authorities to the present case, this Court has no hesitation to hold that irrespective of the fact that the learned trial Magistrate did not specifically pass any order for setting off the period already undergone by the petitioner in custody, nonetheless, the said period was required to be calculated as the period undergone by him in custody and the Jail authorities had rightly done so. Since the learned Additional Sessions Judge after setting off this period again reviewed his own order and issued non bailable warrants against the petitioner by observing that the period already undergone by the petitioner could not be set off, therefore, the impugned order dated 11.02.2015 is certainly liable to be set aside. The same is accordingly set aside. The petition is allowed while clarifying that the petitioner was entitled to benefit of set off under 8 of 9 ::: Downloaded on - 31-08-2024 02:22:52 ::: Neutral Citation No:=2024:PHHC:109374 CRM-M No.6288 of 2015 -9- Section 428 of Code of Criminal Procedure and was rightly released by the jail authorities as he had already undergone the same.
(MANISHA BATRA)
14.08.2024 JUDGE
manju
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
9 of 9
::: Downloaded on - 31-08-2024 02:22:52 :::