Patna High Court - Orders
Butan Sah vs The State Of Bihar & Ors on 17 July, 2014
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.423 of 2014
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1. Butan Sah S/o Yamuna Sah Resident of Village Papaur, Police Station
Panchrukhi, District Siwan.
.... .... Petitioner/s
Versus
1. The State of Bihar.
2. The Superintendent of Police Mandal Kara, Siwan.
3. The Jailor, Mandal Kara, Siwan.
4. The Officer in Charge of Jail, Mandal Kara, Siwan.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Prakash Chandra Jha, Advocate
Mr. Vijay Prakash Singh, Advocate
For the Respondent/s : Mr. Prabhu Narayan Sharma, AC to AG
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
and
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP
SINGH
CAV ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
6 17-07-2014The petitioner, who is in custody in District Jail, Siwan, consequent to his conviction in as many as 8 (eight) cases, agitates, in this writ petition, made under Articles 226 and 227 of the Constitution of India, that he ought to have been released from custody if the provisions of set off, as embodied under Section 428 of the Code of Criminal Procedure, were correctly applied inasmuch as he has, contends the petitioner, served out the sentences, which have been passed against him in the cases aforementioned.
2. The material facts and stages, which have given rise to the present writ petition, fall in a narrow Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 2 compass and may be set out, in brief, as under:
(i) The petitioner was arrested in connection with Siwan Mufassil Police Station Case No. 221 of 2010 under Section 379 of the Indian Penal Code and remanded to custody on 02.02.2011 and, on the basis of the statements, allegedly made by the petitioner, he was arrested and remanded to custody in 7 (seven) other criminal cases, all cases having been registered under Section 379 of the Indian Penal Code.
(ii) Besides Siwan Mufassil Police Station Case No. 286 of 2010, wherein the petitioner was remanded to custody, on being arrested, on 14.02.2011, he came to be arrested in seven other criminal cases, which are described hereinbelow with respective dates of remand:
(a) Siwan Mufassil Police Station Case No. 48 of 2010, wherein the petitioner was remanded to custody on 18.02.2011;
(b) Siwan Town Police Station Case No. 221 of 2010, wherein the petitioner was remanded to custody on 02.06.2011;
(c) Siwan Town Police Station Case No.167 of 2010, wherein the petitioner was remanded to custody on 09.06.2011;
(d) Siwan Town Police Station Case No. 164 of Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 3 2010, wherein the petitioner was remanded to custody on 12.07.2011;
(e) Siwan Town Police Station Case No. 157 of 2010, wherein the petitioner was remanded to custody on 12.07.2011;
(f) Doraunda (M. H. Nagar) Police Station Case No.103 of 2010, wherein the petitioner was remanded to custody on 16.07.2011;
(g) Siwan Town Police Station Case No. 120 of 2011, wherein the petitioner was remanded to custody on 29.08.2011.
(iii) The petitioner pleaded guilty to the charge of theft under Section 379 of the Indian Penal Code and, consequent upon his pleading guilty, he was convicted in all the eight cases mentioned hereinbefore, and sentences were accordingly awarded in each case. The respective dates of judgment and order of conviction and sentence, period of sentence and also the period, already undergone by the petitioner till the filing of this writ petition, are as under:
(a) Siwan Town Police Station Case No. 157 of 2010, wherein the judgment of conviction and sentence was passed, on 01.12.2013, and the petitioner has been sentenced to undergo simple imprisonment for a period of Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 4 2 (two) years and 5 (five) months, out of which the petitioner had already undergone sentence for 2 years 4 months 20 days;
(b) Siwan Town Police Station Case No. 164 of 2010, wherein the judgment of conviction and sentence was passed, on 01.12.2013, and the petitioner has been sentenced to undergo simple imprisonment for a period of 2 (two) years and 5 (five) months, out of which the petitioner had already undergone sentence for 2 years 4 months 20 days;
(c) Siwan Town Police Station Case No. 221 of 2010, wherein the judgment of conviction and sentence was passed, on 02.12.2013, and the petitioner has been sentenced to undergo simple imprisonment for a period of 2 (two) years and 6 (six) months, out of which the petitioner had already undergone sentence for 2 years 6 months;
(d) Doraunda (M. H. Nagar) Police Station Case No. 103 of 2010, wherein the judgment of conviction and sentence was passed, on 02.12.2013, and the petitioner has been sentenced to undergo simple imprisonment for a period of 2 (two) years and 6 (six) months, out of which the petitioner had already undergone sentence for 2 years 4 months 16 days;
Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 5
(e) Siwan Town Police Station Case No. 120 of 2011, wherein the judgment of conviction and sentence was passed, on 02.12.2013, and the petitioner has been sentenced to undergo simple imprisonment for a period of 2 (two) years and 4 (four) months, out of which the petitioner had already undergone sentence for 2 years 3 months 03 days;
(f) Siwan Town Police Station Case No. 167 of 2010, wherein the judgment of conviction and sentence was passed, on 16.12.2013, and the petitioner has been sentenced to undergo simple imprisonment for a period of 2 (two) years 6 (five) months and 21 (twenty one) days, out of which the petitioner had already undergone sentence for 2 years 5 months 23 days;
(g) Siwan Mufassil Police Station Case No. 286 of 2010, wherein the judgment of conviction and sentence was passed, on 01.01.2014, and the petitioner has been sentenced to undergo simple imprisonment for a period of 3 (three) years, out of which the petitioner had already undergone sentence for 2 years 9 months 18 days; and
(h) Siwan Mufassil Police Station Case No. 48 of 2010, wherein the judgment of conviction and sentence was passed, on 02.01.2014, and the petitioner has been sentenced to undergo simple imprisonment for a period of Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 6 3 (three) years, out of which the petitioner had already undergone sentence for 2 years 9 months 14 days.
(iv) It is the petitioner's case that since has been sentenced to imprisonment for a period of three years on 01.12.2013, the sentences, which have been passed consequent upon his subsequent conviction, have all been spent in custody by the petitioner and, hence, the petitioner, having spent the period of imprisonment of 3 (three) years from the first date of remand, may be directed to be released.
3. We have heard Mr. Prakash Chandra Jha, learned Counsel for the petitioner, and Mr. Prabhu Narayan Sharma, learned Assistant Counsel to the Advocate General, appearing on behalf of the respondents.
4. In the light of the rival submissions, which have been made before us, the question, which falls for determination, is: when a person, already undergoing sentence of imprisonment consequent upon his conviction for commission of an offence, is subsequently convicted, his subsequent sentence of imprisonment, passed on subsequent conviction, will be covered by the provisions of set off as contained in Section 428 of the Code of Criminal Procedure or not?
5. In other words, the questions, raised in the Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 7 present writ petition, are: (i) whether to the subsequent sentence of imprisonment passed against a person, who has already been undergoing sentence of imprisonment consequent upon his previous conviction, the provisions of set off would be available against the period, which such a person spends, while undergoing sentence of imprisonment in the previous case, or (ii) whether the provisions of set off would remain confined only to the period, which he has undergone during the investigation, enquiry or trial of the subsequent case?
6. Our quest, for an answer to the questions posed above, brings us to Sections 31, 427 and 428 of the Code of Criminal Procedure read with Section 64 of the Indian Penal Code.
7. For the purpose of clarity, the relevant provisions are re-produced below:
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 Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 8 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 (2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court:
Provided that--
(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence (3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence. Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 9
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.
(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.Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 10
428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.
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 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.
Comments:
(i) Benefit of set off under section 428 is not available to life convicts; Kartar Singh v. State of Haryana, AIR 1982 SC 1433.
(ii) The period of detention referred to in section 428 is of the accused person during the investigation; Ram Sarup v. Union of India, 1988 Cr LJ 417: AIR 1988 SC 283.
64. Sentence of imprisonment for non-
Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 11payment of fine.--1[In every case, of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable 2[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, in 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.
8. From a combined reading of Sections 31, 427 and 428 of the Code of Criminal Procedure read with Section 64 of the Indian Penal Code, what becomes transparent is that sub-section (1) of Section 31 of the Code of Criminal Procedure lays down that when a person is sentenced following his conviction in several offences at one trial, the Court may sentence, for the offences of which he stands convicted, to several punishments prescribed for the offences of which he is convicted, and Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 12 the sentences, so passed, shall run one after another, i.e., consecutively, unless the Court directs that punishments shall run concurrently meaning thereby that the sentences of imprisonment, passed for several offences, at one trial, would run consecutively and not concurrently unless the Court directs that the punishments shall run concurrently.
9. Coming to the provisions of Section 427 of the Code of Criminal Procedure, what becomes clear is that when a person (who is already undergoing a sentence of imprisonment), as a result of his conviction in a previous trial, is further convicted, at a subsequent trial, of an offence and sentenced to suffer imprisonment of a specified period, his subsequent sentence of imprisonment shall commence at the expiration of the imprisonment to which he has been previously sentenced unless the Court directs that subsequent sentence shall run concurrently with his previous sentence.
10. To put it a little differently, when a person, already undergoing a sentence of imprisonment following his conviction of an offence, is further sentenced, at a subsequent trial, to suffer imprisonment, his subsequent sentence of imprisonment shall start running on expiry of the sentence of imprisonment to which he has already been sentenced at the previous trial unless the Court Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 13 directs that the subsequent sentence of imprisonment shall run concurrently with his previous sentence of imprisonment meaning thereby that if the Court does not direct that the subsequent sentence of imprisonment shall run concurrently with such person's previous sentence of imprisonment, then, his subsequent sentence of imprisonment shall commence on expiry of the sentence of imprisonment to which he may have already been sentenced at the previous trial.
11. The position of law, as depicted above, is subject to one exception, the exception being that when a person, already undergoing a sentence of imprisonment for life, is further sentenced, on his subsequent conviction, to imprisonment for a term or imprisonment for life, his subsequent sentence of imprisonment for a term or imprisonment for life shall run 'concurrently' with the previous sentence of imprisonment for life.
12. What, in substance, Section 427 of the Code of Criminal Procedure conveys is that when a person, already undergoing a sentence of imprisonment, is further sentenced, on subsequent conviction, to imprisonment for a term or to imprisonment for life, such imprisonment for a term or such imprisonment for life shall commence at the expiration of the imprisonment to which he has been Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 14 previously sentenced unless the Court directs that subsequent sentence shall run 'concurrently' with his previous sentence. When, however, such a person is already undergoing a sentence of imprisonment for life, then, his further sentence of imprisonment for a term or imprisonment for life, which may be passed against him (following his subsequent conviction), shall run 'concurrently' with his previous sentence of imprisonment for life irrespective of the fact whether the Court directs or not that subsequent sentence of imprisonment for a term or imprisonment for life would run 'concurrently'.
13. Turning to Section 428 of the Code of Criminal Procedure, what becomes abundantly clear is that when a person, on his conviction, has 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, enquiry 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 a person to undergo imprisonment, on such conviction, shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
14. In other words, when a person, on his Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 15 conviction, is sentenced to imprisonment for a term, the period of detention, if any, undergone by him during investigation, enquiry or trial of the case, shall be set off against the remaining period, if any, of the term of imprisonment imposed on him. These provisions of set off, however, would not apply to the period of imprisonment, which such a person may have to suffer 'in default of payment of fine'.
15. As a corollary to what has been pointed out above, it logically follows that the provisions of set off, embodied in Section 428 of the Code of Criminal Procedure, apply only to that period of detention, which a convict has undergone during investigation, enquiry or trial of the case, wherein he comes to be convicted and sentenced, and would not, logically extended, apply to the period of detention, which such a person may have suffered or may have been suffering, as a result of his previous conviction and sentence of imprisonment passed against him upon his previous conviction.
16. Coupled with the above, Section 64 of the Indian Penal Code makes it clear that when an offence is punishable with imprisonment as well as fine and the offender is sentenced to a fine with or without imprisonment and also when an offence is punishable with Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 16 fine only and the offender is sentenced to a fine, it shall be competent for the Court, which sentences such an offender, to direct, by the sentence, that in default of payment of the fine, the offender shall suffer imprisonment for a certain term, wherein 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.
17. In other words, imprisonment, in default of payment of fine or fines, is in addition to the punishment of imprisonment. Consequently, the period of imprisonment, in default of payment of fine or fines, shall be consecutive and not concurrent with the result that after the period of imprisonment, suffered by a convict, the sentence of imprisonment, in default of payment of fine or fines, would start running.
18. A combined reading of the provisions embodied in Sections 31 (1), 427 and 428 of the Code of Criminal Procedure and Section 64 of the Indian Penal Code gives out a complete scheme of calculating the period of imprisonment passed as sentence, the ordinary rule being that the sentences awarded shall run consecutively unless the Court directs that the sentences passed, in more than one case, shall run concurrently. Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 17 When the sentences of imprisonment are passed consequent upon an offender's conviction in more than one offence at one trial, it is Section 31 of the Code of Criminal Procedure, which applies, and when the sentences of imprisonment are passed consequent upon his conviction in different trials, it is Section 427 of the Code of Criminal Procedure, which would apply. Sub-section (2) of Section 427 of the Code of Criminal Procedure makes an exception, the exception being that when a person, already undergoing a sentence of imprisonment for life, is sentenced, on subsequent conviction, to imprisonment for a term or to imprisonment for life, his subsequent sentence shall run 'concurrently' with his previous sentence of imprisonment for life, even if the Court does not direct that the subsequence sentence of imprisonment would run concurrently and not consecutively with his previous sentence of imprisonment for life.
19. Coupled with the above, imprisonment, in default of payment of fine or fines, is in addition to punishment of imprisonment and, therefore, the period of imprisonment, in default of payment of fine or fines, shall be consecutive and not concurrent meaning thereby that after the period of imprisonment is suffered by a convict, his sentence of imprisonment, in default of payment of fine Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 18 or fines, would commence. This is precisely what Section 64 of the Indian Penal Code conveys.
20. So far as the provisions of set off are concerned, the same stand introduced by the Code of Criminal Procedure, 1973. What is necessary to note, while considering the provisions of set off, embodied in Section 428 of the Code of Criminal Procedure, is that the period of detention, undergone by an offender as an under-trial prisoner (i.e, during investigation, enquiry or trial of the same case) has to be set off, upon his conviction, as against the sentence of imprisonment awarded in the same case and not to a previous case or subsequent case.
21. Section 428 of the Code of Criminal Procedure does not, thus, apply to a situation, where a person is in custody suffering imprisonment for different offences irrespective of the fact whether he has been undergoing the sentences of imprisonment following his conviction in different offences at one trial or at different trials.
22. What needs to be borne in mind is that a person may be arrested and remanded to custody by judicial orders passed in different and distinct cases at different points of time and he may be convicted on different dates and different sentences may be passed Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 19 consequent upon his such conviction. However, so long as his custody remains exclusively as an under-trial, such period would be set off in respect of each case separately. When, however, his custody is by virtue of not being an under-trial prisoner, but as a result of his conviction and sentence passed against him, then, his status would change from an under-trial prisoner to a convict, undergoing sentence of imprisonment, and the period of imprisonment, which he passes as period of sentence of his imprisonment, would not be available to him for set off, for, his custody, in such a case, is not exclusively as an under-trial prisoner, but as a convict.
23. We may, now, turn to some of the relevant judicial pronouncements governing the scheme of set off. The first decision in such a series of cases would be Government of Andhra Pradesh v. Anne Venkatesware and others, reported in (1977) 3 SCC
298. In this case, the petitioners applied, in the High Court, for altogether three distinct reliefs. Their first claim was for remission by shortening the period of their sentences in the light of the Prisons Act, 1894. The High Court of Andhra Pradesh allowed the relief of remission, sought for, on the strength of Section 428 of the Code of Criminal Procedure. The second claim of the petitioners Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 20 was that in terms of Section 428 of the Code of Criminal Procedure, the period of their preventive detention under Maintenance of Internal Security Act, 1971, should be set off against their sentences of imprisonment passed consequent upon their conviction. The High Court did not accede to this prayer. The third claim of the petitioners was that having been implicated in subsequent criminal cases, they ought to have been remanded in the said cases inasmuch as they had already been suffering preventive detention and continued to remain in preventive detention up to their conviction and, therefore, the period undergone, as a detenue under preventive detention, shall be set off against their respective sentences passed following their conviction. The High Court did not accede to this prayer either. The State preferred appeals against the remission, which was granted by the High Court on the analogy of Section 428 of the Code of Criminal Procedure; whereas the petitioners preferred appeals against the rejection of their contention regarding their second and third claims, namely, that, having been implicated in substantial criminal cases subsequent to their preventive detention, they ought to have been, while suffering imprisonment as a detenue under preventive detention law, remanded to custody in substantial criminal cases and Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 21 the periods, which they would have, thus, remained in detention, ought to have been set off against the sentences of imprisonment passed against them.
24. All the appeals came to be disposed of by the decision rendered in Anne Venkateshware (supra). The Supreme Court, while allowing the appeals of the State against the remission, which had been granted by the High Court, on the analogy of Section 428 of the Code of Criminal Procedure, held that Section 428 of the Code of Criminal Procedure provides for set off and does not equate an under-trial detention or remission detention with imprisonment on conviction. The Supreme Court, while laying down that though the provisions of set off indicate a legislative policy, which does not do away with the difference in two kinds of detention ― one, which a person suffers by way of preventive detention or as an under-trial prisoner ― and the other as a prisoner undergoing, upon his conviction, sentence of imprisonment as a convict, left it to the discretion of the State Government to grant remission if the Government so chose.
25. Dealing with the petitioners' claim to set off the period of detention against the period of sentences, which were passed against them consequent upon their conviction, the Supreme Court, in no uncertain words, Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 22 pointed out that Section 428 of the Code of Criminal Procedure 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 investigation, enquiry or trial in connection with the same case, wherein he has been convicted, and since the detention, which a person undergoes, because of the preventive detention, cannot be regarded as a detention, in a criminal case, wherein he has been convicted, the provisions of set off as against the period, undergone by way of preventive detention, would not be applicable inasmuch as detention of a person, under preventive detention law, is not a detention as an under-trial prisoner.
26. Coming to the third relief, which the petitioners had claimed, namely, that having been implicated in substantial criminal case, they ought to have been remanded in the said case as they had already been suffering preventive detention, the Supreme Court, in Anne Venkateshware (supra), granted the relief, which the petitioners had sought for, and rejected the State's contention that since the petitioners were detained under preventive detention, State could not have sought for their remand in substantive criminal cases. This view was taken by the Supreme Court on the ground that there was no Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 23 law, which prevents the State from seeking remand of a person as an accused in a case if such a person was kept imprisoned under preventive detention and, hence, the periods, during which the petitioners ought to have been remanded in the substantive criminal cases, ought to be treated as the period, when they were under-trial prisoners in the case, and the period, so spent as under-trial prisoners, ought to be set off in terms of Section 428 of the Code of Criminal Procedure.
27. Thus, a clear distinction was drawn, in Anne Venkateshware (supra), in respect of the nature and status of detention of various forms and their, inter se, effect, namely, preventive detention, detention as an under-trail and detention on conviction.
28. The propositions of law, laid down in Anne Venkateshware (supra), have, indeed, been approved by a three-Judges Bench, in Champalal Punjaji Shah v. State of Maharashtra, reported in (1982) 1 SCC 507.
29. The case of Raghvir Singh v. State of Haryana, reported in (1984) 4 SCC 348, is an interesting case, where the petitioner was tried in two cases in two different States, namely, State of Haryana and the Union Territory of Delhi, and the petitioner, in this case, wanted to secure benefit of set off for his detention Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 24 in one case as against the other case. The Supreme Court held that in such a case, the period of detention is really a part of the period of imprisonment, which the petitioner is undergoing, having been sentenced earlier for another offence and this period, which he is undergoing, consequent upon the sentence passed against him, cannot be regarded as the period of detention undergone by him during investigation, enquiry or trial of the same case in which he had been, later on, convicted and sentenced.
30. The decision, i.e., Raghvir Singh (supra), indicates that the provisions of set off will apply only in respect of that period, which a person undergoes during investigation, enquiry or trial, of the case in which he comes to be, later on, convicted and sentenced and such period would not be available for applying the provisions of set off against the sentence of imprisonment, which may be passed against such a person in other cases.
31. We may, now, turn to the case of State of Maharashtra versus Najakat Alia Mubarak Ali, reported in (2001) 6 SCC 311, which has been heavily relied upon by the petitioner. This is a decision of three- Judge Bench of the Supreme Court, which is a split decision, wherein majority, while interpreting Section 428 of the Code of Criminal Procedure, held, in the facts of the Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 25 case, that since 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 against him and, hence, the period of remand would be available for set off under Section 428 of the Code of Criminal Procedure in both the cases. The majority, in Najakat Alia Mubarak Ali (supra), disapproved the decision in Raghvir Singh (supra). While doing so, the Supreme Court, however, noted that it would be the period of remand, in each case, which 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 his respective periods of remand.
32. Thus, even in State of Maharashtra v.
Najakat Alia Mubarak Ali, reported in (2001) 6 SCC 311, the Supreme Court maintained the legal position that the period of remand, in each case, 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, but in respect of such period of detention, which he may have remained, in detention, as an under-trial prisoner, in the case in which he comes to be subsequently convicted.
33. We, now, refer to the decision in Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 26 Maliyakkal Abdul Azeez v. Assistant Collector, Kerala, reported in (2003) 2 SCC 439, wherein the petitioner had sought for the period of preventive detention, under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, to be set off against conviction for an offence under Customs Act, 1962. This was not allowed by the Supreme Court following its judgment in Champalal Punjaji Shah (supra). The Supreme Court held that preventive detention, under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, is not detention as an under-trial in the case, where conviction is ultimately awarded.
34. Turning to the three Judge Bench decision, in State of Punjab v. Madan Lal, reported in (2009) 5 SCC 238, it may be noted that this case primarily relates to Section 427 of the Code of Criminal Procedure, where three convictions were awarded in three different cases and the High Court, on an application made under Section 482 of the Code of Criminal Procedure, allowed the three convictions to run concurrently in terms of Section 427(1) of the Code of Criminal Procedure. The Supreme Court dismissed the appeal. While doing so, the Supreme Court referred to its decision in Najakat Alia Mubarak Ali Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 27 (supra) and noted that Section 428 of the Criminal Procedure Code postulated two requirements :
(i) During stage of investigation, enquiry or trial of a particular case, the petitioner should have been in jail, at least, for a certain period;
and
(ii) He should have been sentenced to a term of imprisonment 'in that case'.
35. If the two conditions, indicated above, were fulfilled, then, provision of set off would be available.
36. We may, at this stage, pause to refer to the decision in Atul Manubhai Parekh v. Central Bureau of Investigation, reported in (2010) 1 SCC 603, wherein the question for consideration, as noted by the Supreme Court, read:-
"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."
37. The answer to the question, so posed, is in Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 28 paragraph 14 of the decision. Having considered the cases of Champalal Punjaji Shah (supra), Raghvir Singh (supra) and Najakat Alia Mubarak Ali (supra), Anne Venkatesware (supra) and Maliyakkal Abdul Azeez (supra), the Supreme Court has held, in Atul Manu Bhai Parekh (supra), thus, "14. The wording of Section-428 is, in our view, clear and unambiguous. The heading of the section itself indicates that the period of detention undergone by the accused is to be set off against the sentence of imprisonment. The section makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. It is quite clear that the period to be set off relates only to pre-conviction detention and not to imprisonment on conviction."
(Emphasis is added)
38. What crystallizes from the above discussion is that the provisions of set off, as embodied in Section 428 of the Code of Criminal Procedure, apply only to the Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 29 period, which a person spent as an under-trial prisoner, i.e., during investigation, enquiry or trial if he comes to be subsequently convicted in the case, wherein he suffers detention during investigation, enquiry or trial as an under-trial prisoner of the case. If he is convicted of more than one case, the remand period of each case would be set off against the sentence passed in the case concerned and not in every case.
39. Clearly, therefore, the period ,which a person spent, while serving a sentence of imprisonment as a convict in one case, would not be taken into account, and be treated, as a remand period or as a period undergone by him as an under-trial prisoner in the other case, wherein he comes to be subsequently convicted.
40. Situated thus, we hold that when a person, who is convicted, at one trial, of several offences and sentenced to several punishments of imprisonment, then, such period of imprisonment would run consecutively unless the Court directs that the period of imprisonment would run concurrently.
41. Unless, therefore, the Court directs, while passing several sentences of imprisonment, at one trial, that the sentences of imprisonment, consequent upon the conviction, in different cases, at one trial, would run Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 30 concurrently, the sentences of imprisonment, upon conviction for different offences, at one trial, would run consecutively.
42. When, however, a person, already undergoing his sentence of imprisonment, is further sentenced, on his subsequent conviction, to imprisonment for a term or imprisonment for life, such imprisonment shall commence on expiry of the period of imprisonment to which a person may have been previously sentenced unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. There is, however, one exception in such cases and the exception is with respect to imprisonment for life in the sense that when a person, while undergoing sentence of imprisonment for life, is sentenced, on his subsequent conviction, to imprisonment for a term or imprisonment for life, then, subsequent sentence shall, even in the absence any direction by the Court, run concurrently with the previous sentence.
43. As far as the provision of set off, embodied in Section 428 Code of Criminal Procedure, are concerned, these provisions apply only to the period, which a convict might have undergone during investigation, enquiry or trial of the case in which he comes to be subsequently Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 31 convicted. Thus, the period, spent by a person as an under-trial prisoner, i.e., during investigation, enquiry or trial in one case, would not be available to him for set off against the sentence of imprisonment, which may be subsequently passed against him in another case.
44. More-over, the period of sentence, which a person spends as a convict, would not be available to him, for the purpose of set off against the period of imprisonment to which he may be sentenced following his subsequent conviction in a different case. The period of imprisonment, which a person spends as an under-trial prisoner is entirely different from the period, which a person suffer, while serving out sentence of imprisonment as a convict.
45. Considered in the light of the laws indicated above, it becomes clear that the present petitioner has not completed the sentences of imprisonment, which have been passed against him.
46. In the circumstances, so indicated, no direction for release of the petitioner can be passed at this stage, when we notice that he would complete his sentence of imprisonment, passed at more than one trial, on 21.07.2014. No sooner, however, he completes the period of his sentences of imprisonment, which have been Patna High Court Cr. WJC No.423 of 2014 (6) dt.17-07-2014 32 passed at different trials (and not at one trial), he shall be released, i.e., on 21.07.2014.
47. In terms of the above observations and directions, this writ application shall stand disposed of.
48. Registry is directed to send back the Lower Courts Record.
(I. A. Ansari, J.)
S. P. Singh, J.:- I agree.
(Samarendra Pratap Singh, J.)
Prabhakar Anand/
AFR
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