Allahabad High Court
Sudama Uraon vs State Of U.P. on 6 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2865
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Court No. - 83 Case :- CRIMINAL APPEAL No. - 1973 of 2019 Appellant :- Sudama Uraon Respondent :- State of U.P. Counsel for Appellant :- Mahesh Sharma, Hriday Kumar Singh, Jai Prakash Prasad, Satya Dheer Singh Jadaun Counsel for Respondent :- G.A. Hon'ble Virendra Kumar Srivastava,J.
1. This instant appeal has been filed by the appellant against the judgement and order dated 21.3.2018, passed by Sessions Judge, Sonbhadra, in Special Session Trial No.553 of 2012 (State vs. Sudama Uraon) arising out of case Crime No.432 of 2009, P.S Pannuganj, district Sonbhadra, whereby the appellant-accused (in short 'appellant') has been convicted for the offence under section 3(1) of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986 (in short 'Act') for three years rigorous imprisonment and fine of Rs. 5,000/- and in default of payment of fine, he has been further sentenced for three months simple imprisonment.
2. The brief facts, arising out of this appeal, are that an information was received by S.I. Sri Shesh Dhar Pandey, Station In-Charge, P.S. Pannuganj, District Sonbhadra that appellant Sudama Uraon, leader of Nexalite Gang, is active with his members of the gang and is creating terror in society and due to which nobody comes forward to show his grievance against the appellant and the members of his gang. On the basis of said information a report was sent to the District Magistrate concerned through a higher police official along with a chart of criminal cases against the appellant and after approval of gang chart, first information report (for short 'F.I.R.') was lodged. At the time of lodging F.I.R., it is stated that he was detained in district jail, Mirzapur in connection with other offences pending against him. For his production before the Court of Sessions, Sonbhadra, production warrant was issued u/s 267 of Code of Criminal Procedure, 1973 (in short 'Code') on 13.10.2009 but the appellant was not produced before the Court as he was transferred to another district jail, Sasaram, Bihar. Meanwhile, after due investigation charge sheet was filed against the appellant before the Trial Court on 05.12.2012.
3. Cognizance was taken by the trial court. Appellant was summoned. Production warrant was issued under Section 267 of the Code to Incharge of the concerned prison for production of appellant. Appellant, upon being transferred from District Jail, Sasaram to District Jail, Sonbhadra, was produced before the Trial Court on 27.9.2017 and at the time of hearing of charge, the appellant confessed his guilt voluntarily on 21.3.2018. Learned Trial Court, after hearing the learned counsel appearing for appellant and learned counsel appearing for the State, convicted and sentenced the appellant as above. After the impugned judgment and order, as the appellant was under going the sentence awarded against him, he filed an application before the Trial Court that during the period of his detention in Mandal Jail, Sasaram, Bihar, he was summoned through production warrant (warrant B) dated 16.8.2010 and was transferred on 26.7.2017 from District Jail, Gurma to District Jail, Sonbhadra but has not been released on conviction warrant dated 21.3.2018 passed by Trial Court. The Trial Court called for a report from Superintendent District Jail, Sonbhadra, who in his report dated 8.10.2018 stated that the appellant was transferred from Mandal Karagar, Sasaram to District Jail, Sonbhadra on 26.7.2017; he was produced before the Trial Court on 27.9.2017. On 21.3.2018 the appellant was convicted by the Trial Court for 3 years imprisonment and fine of Rs. 5000/- but on 29.3.2018 the appellant was again transferred to District Jail, Bhagna (Kaimur), Bihar. It was also stated in the report that till the date of conviction and sentence of the appellant in Case Crime No. 432 of 2009 under Section 3(1) of the Act, P.S. Pannuganj, District Sonbhadra, S.T. No. 553 of 2012 (State Vs. Sudama Uraon), detention of the appellant was only 5 months and 23 days and in view of the sentence awarded by the Trial Court, the probable release date of appellant would be 16.5.2020. Considering the said report, the Session Judge, Sonbhadra, vide order dated 26.10.2018 rejected the application dated 17.7.2018 filed by the appellant. Aggrieved by the aforesaid judgment and orders, this appeal has been filed.
4. Heard Sri Jai Prakash Prasad, learned counsel for the appellant, learned A.G.A for the State and perused the record.
5. Learned counsel for the appellant submitted that the appellant has voluntarily confessed his guilt before the Trial Court, hence he will not argue the case on merit. Learned counsel further submit that in this case three years rigorous imprisonment has been awarded to the appellant which is excessive and against the provision of law; the appellant has been languishing in jail since 25.10.2008 but the jail authority refused to release the appellant and learned Session Judge also dismissed the application dated 17.7.2008, filed by the appellant for setting off his period of detention in jail before passing the impugned judgment and order. Learned counsel further submitted that the sentence awarded against the appellant is required to be reduced as period undergone so that the appellant may be released forthwith from jail.
6. Per-contra, learned A.G.A opposed the submission made by the learned counsel for the appellant and submitted that the appellant is hard core criminal, involved in offence under Explosive Substance Act, Arms Act, attempt to murder, Prevention of Terrorism, Act (P.O.T.A) and active to Anti-Social Activities act pertaining to Gangster Act in the State of Bihar and State of U.P. Learned A.G.A further submitted that the appellant has voluntarily confessed his guilt and has been sentenced only for three rigorous imprisonment and fine of Rs. 5000/-. No further leniency is required. Learned A.G.A. further submitted that period of detention in other prison in other cases are not liable to set off against the impugned sentence of present case. Appellant can be released only after serving out the whole sentence as awarded against him. The appeal is liable to be dismissed.
7. I have considered the rival submissions of the learned counsel for both the parties and perused the record.
8. Section 3 of U.P. Gangsters and Anti-Social Activities ((Prevention) Act, 1986, deals with punishment to gangsters, which is quoted as under:-
3. Penalty.- (1) A gangster shall be punished with imprisonment of either description for a term which shall not be less than two years and which may extend to ten years and also with fine which shall not be less than five thousand rupees:
Provided that a gangster who commits an offence against the person of a public servant or the person of a member of the family of a public servant shall be punished with imprisonment of either description for a term which shall not be less than three years and also with fine which shall not be less than five thousand rupees.
(2) Whoever being a public servant renders any illegal help or support in any manner to a gangster, whether before or after the commission of any offence by the gangster (whether by himself or through others) or abstains from taking lawful measures or intentionally avoids to carry out the directions of any court or of his superior officers, in this respect, shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than three years and also with fine."
9. Thus the minimum sentence of three years which may extend to ten years and fine have been provided if the gangster commits any offence against a public servant or a person of member of the family of public servant and in other cases he shall be punished for minimum sentence of two years and fine. Appellant has been convicted for sentence of imprisonment of only three years and fine of Rs. 5000/-. Thus it is clear that learned Trial Court has awarded sentence to appellant on lower side which requires no interference.
10. Record further shows that after the impugned judgment and order dated 21.3.2018, the appellant did not challenge its legality or veracity. He filed an application before the Session Judge, Sonbhadra stating that the appellant had been languishing in jail for more than 9 years and he was sentenced vide the aforesaid impugned order, only for three years rigorous imprisonment and fine of Rs. 5,000/- but he was not released by the jail authority. On the said application a report was called by the Session Judge, Sonbhadra through Superintendent of Jail, Sonbhadra, who, in his report dated 8.10.2018, stated that the appellant was lodged in District Jail, Sonbhadra on 26.7.2017, on transfer from Mandal Karagar, Sasaram, (Bihar) his custody warrant in this case was prepared on 27.9.2017 and since he had not completed the sentence as awarded by the impugned judgment and order, he was not released from jail. The learned Session Judge, relying on the said report, rejected the release application filed by the appellant vide order dated 26.10.2018.
11. A perusal of the record transpires that though the case was registered in 2009 as Crime No. 432 of 2009, under Section 3(1) of the Act but during the investigation appellant was detained to District Jail, Gharhwa, Jharkhand in other criminal case; and charge sheet was filed before the Trial Court on 5.12.2012 in absence of the appellant.
12. From perusal of the report dated 8.10.2018, sent by the Superintendent of District Jail Sonbhdra, it further transpires that production warrant issued for production of appellant was sent to Mandal Karagar, Sasaram which was received there on 7.10.2009 but he was transferred to district jail, Sonbhadra on 26.7.2017 and his custody remand was prepared by the Trial Court on 27.9.2017.
13. Section 167, 209, 267, 270, 309 427 and 428 of the Code which deal with the law regarding production of any accused languishing in another jail as well as law regarding setting off period of detention already undergone by the accused in same case, are extracted below:-
"167. Procedure when investigation cannot be completed in twenty four hours.
(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that.........."
209. Commitment of case to Court of Session when offence is triable exclusively by it.--
When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall--
(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
267. Power to require attendance of prisoners.-- (1)Whenever, in the course of an inquiry, trial or proceeding under this Code, it appears to a Criminal Court--
(a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or for the purpose of any proceedings against him, or
(b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence.
(2) Where an order under sub-section (1) is made by a Magistrate of the second class, it shall not be forwarded to, or acted upon by, the officer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate, to whom such Magistrate is subordinate.
(3) Every order submitted for countersigning under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order.
270. Prisoner to be brought to Court in custody.--Subject to the provisions of section 269, the officer in charge of the prison shall, upon delivery of an order made under sub-section (1) of section 267 and duly countersigned, where necessary, under sub-section (2) thereof, cause the person named in the order to be taken to the Court in which his attendance is required, so as to be present there at the time mentioned in the order, and shall cause him to be kept in custody in or near the Court until he has been examined or until the Court authorises him to be taken back to the prison in which he was confined or detained.
309. Power to postpone or adjourn proceedings.-- (1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:
Provided that..........
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody :
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that ..........
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 .......
(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.
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:
Provided that .........."
14. Sections 167, 209 and 309 of the Code deal with detention or remand of a person in custody. Section 167 of the Code deals with pre cognizance detention i.e. detention or remand during investigation whereas Sections 209 and 309 deal with post cognizance remand i.e. detention during inquiry or trial. Presence of the accused required by these provisions is physical and actual presence which means that unless accused appears, brought or forwarded physically he could not be remanded in custody.
15. Section 267 of the Code clearly provides that if an accused is not present before any Court and is detained in any prison and whose attendance is required by any other Court, the Incharge of concerned prison may be directed to produce the said accused before such Court and it is the duty of officer in-charge of such prison, to whom such order was made, to produce such person whose attendance is required before such Court. Section 270 of the Code provides that in compliance of production warrant, issued by any Court, incharge of concerned prison will produce such prisoner before such Court and such prisoner shall be kept inside the Court or nearest jail subject to the provision, contained in this Section. Section 427 of the Code provides that if a person is undergoing a sentence of imprisonment and is subsequently sentenced in another case, such subsequent sentence shall commence after the expiry of imprisonment to which he was undergoing but Section 428 provides that a period of detention, already undergone during the investigation, inquiry or trial of the same case before the date of conviction, shall be set off against the terms of imprisonment imposed upon the accused.
16. In Mohammad Daud @ Mohd. Saleem Vs. Superintendent of District Jail, Moradabad and others, 1993 Cr.L.J. 1358, the petitioner was facing prosecution under N.D.P.S. Act in State of Maharashtra and was in judicial custody. His attendance was also required in the Court of Special Judge, Moradabad to answer the charge of offence under Section 394/397 I.P.C. in Session Trial No. 478-A of 1984. The Special Judge, Moradabad issued a production warrant u/s 267 of the Code and in compliance thereof, the petitioner was produced before him on 3.12.1990. After trial the petitioner was acquitted but he was not released as his attendance was also required in prison of Maharashtra wherefrom he was transferred to Uttar Pradesh. He filed a petition with prayer that his detention in Maharashtra in N.D.P.S. case was illegal because as soon as he was transferred from Maharashtra to Uttar Pradesh his custody and detention in Maharashtra in N.D.P.S. Act automatically amounts to be terminated. So he could not be transferred to Maharashtra and be immediately released form Uttar Pradesh. The Division Bench of this Court, while discussing the provisions of sections 267 and 270 of the Code and dismissing the petition, held as under:-
"20. In fact in this petition, there is a misjoinder of the two different and distinct causes of action. The arrest, prosecution and detention of the petitioner in Maharashtra in connection with the N.D.P.S. Act constitutes an entirely separate and distinct transaction having no nexus to his detention in connection with the Sessions Trial at Moradabad. For the purposes of determining jurisdiction therefore the two cannot be clubbed together to bring the case within the purview of Article 226(2) of the Constitution. The expression 'cause of action in part arises' in the said provision refers to a part of cause of action relating to or arising from the same transaction. It does not envisage or permit joining of different causes of action arising out of two separate transactions, to confer jurisdiction on the ground of accrual of part of cause of action within the territorial limits of the court. In this view of the matter, therefore, the present petition for writs of habeas corpus and mandamus, in so far as it will have the effect of releasing the petitioner from confinment and detention qua the N.D.P.S. Act case at Greater Bombay, is beyond the jurisdiction of this court, as no part of cause of action has arisen within its territorial limits.
x x x x x x x x
50. Taking up first the submission of the petitioner based on Section 267 of the Cr. P.C. that a warrant issued under the said section does not constitute a detention order authorising detention in prison of a person, it would be found that it is fully borne out from the provisions of S. 267 itself. The head-note as well as the phraseology of the said section indicates that the order envisaged therein is an order to produce a person confined or detained in a prison before a criminal court for answering to a charge or for the purpose of any proceedings against him. An order under this section does not partake the character of a detention order by the court seeking production qua the charge of the proceedings pending before it. This view finds support also from the principles laid down in Dharampal v. State of U.P. 1982 All WC 13 : (1982 All LJ 130) and Pramod Kumar v. State of Uttar Pradesh (reported in Allahabad Dand Nirnaya 108). In fact before us the learned counsel for the respondents has also not taken the stand of a warrant under S. 267 to be a warrant of detention. He, on the other hand, relies on what he claims to be an order of remand validly passed under S. 309 of the Cr. P.C. by the Special Judge, Moradabad and this brings us to one of the main questions in issue between the parties.
x x x x x x x x
55. In our opinion, the interpretation of recitals on the front side of the custody warrant (Annexure 1 aforesaid) that by means of it the Special Judge, Moradabad exercised the power of remanding the petitioner also in connection with the Bombay case, is not supported by the context. It would appear from the tenor of Annexure-1 that the Special Judge was merely taking precaution to incorporate in the warrant issued by him, the fact that the petitioner was also in detention in connection with the N.D.P.S. Act case before the City Sessions Court, Greater Bombay, for the purpose of record in the District Jail, Moradabad, Obviously with the requirements of Sections 267 and 270 of the Cr.P.C. in mind. It become further clear from the main sentence in the warrant that the accused Mohd. Daud is being remanded to judicial custody of the court of Special Judge, Moradabad. The further information was that he is also under judicial custody of the City Sessions Court. Greater Bombay, meaning thereby he was in such custody, irrespective of his order in the Sessions Trial No. 748-A of 1984. The last sentence authorising to detain the accused in both the cases thus was obviously superfluous so far it refers to Bombay case but that by itself would not invalidate the remand order in connection with S.T. No. 748A of 1984."
(Emphasis supplied)
17. In Pawan Kumar Pandey Vs. State of U.P., 1997 Cr.L.J. 2686 this Court again while interpreting the true nature and effect of Section 267 of the Code, held that merely issuing a production warrant does not mean the custody of accused as required u/s 437 of the Code unless he is physically produced before such Court by Superintendent of concerned jail. The Court while relying on the law laid down in Mohd. Saleem (Supra) and Ranjeet Kumar Singh @ Laddo Singh Vs. State of U.P., 1995 Cr.L.J. 1305, held as under:-
"In view of the above discussion, it is held that only that court can consider and dispose of the bail application either u/S. 437 or u/S. 439, Cr.P.C. in whose custody the accused is for the time being and mere issuance of production warrant u/S. 267, Cr.P.C. is not sufficient to deem the custody of mat Court which issued such warrant unless the accused is actually produced in that Court in pursuance of each production warrants. It follows that this petition u/S. 482, Cr.P.C. has no force and is hereby dismissed."
18. In Neera Yadav Vs. Central Bureau of Investigation, (2017) 8 SCC 757, appellant was covicted under Section 13(2) read with Section 13(1) (d) Prevention of Corruption Act, 1988 and was sentenced to undergo rigorous imprisonment of 3 years with fine of Rs. 1 lakh. In another case she was also convicted with another co-accused for offence under Section 120-B I.P.C. and Section 13(2) read with Section 13(1)(d) Prevention of Corruption Act and was sentenced to undergo rigorous imprisonment of 3 years with fine of Rs 50,000/-. It was submitted by the appellant that even though her conviction is in two different cases involving two different transactions, in exercise of power of discretion, sentence of imprisonment imposed upon her in above two cases may be ordered by the Court to run concurrently. Hon'ble Supreme Court while dealing with the provision of Section 427 read with Section 31 of the Code and rejecting submission of appellant, held as under:-
"This instant case is one covered under Section 427 Cr.P.C. As noted earlier appellant Neera Yadav has been convicted in two different cases, one of abusing the official position in getting the plots allotted to herself and her daughters and other irregularities in making changes in the site plan and another one in abusing her position as CEO, Noida conspired with Rajiv Kumar in allotting plot to him. Having regard to the facts and circumstances of the case and considering the nature of allegations, in our view, it is not justifiable to direct concurrency of sentence. Any unprincipled exercise of judicial discretion and casual direction made regarding concurrency would go against the express provisions of the Prevention of Corruption Act, 1988 and the Criminal Procedure Code."
19. In Raghbir Singh Vs. State of Haryana, (1984) 4 SCC 348 wherein the petitioner was convicted on 1.2.1980 by Additional Session Judge, Karnal for offence under Section 307, 459 IPC and was sentenced for maximum period of 7 years rigorous imprisonment and fine; he was already in judicial custody in another case w.e.f. 11.1.1980, pending before Metropolitan Magistrate, Delhi wherein he was convicted on 16.2.1981 in that case for offence under Section 457 I.P.C. and was sentenced for one year imprisonment and for offence under Section 380 I.P.C. for imprisonment of four months with fine. A petition was filed by the petitioner claiming that entire period of his detention from 11.1.1980 to 16.2.1981 should be set off against the sentence of imprisonment, imposed by Metropolitan Magistrate, Delhi. The said petition was opposed by the counsel for State Government and was submitted that petitioner was entitled to set off under Section 428 of the Code only the period, between 11.1.1980 and 1.2.1980 i.e. before he was sentenced by the Additional Session Judge, Karnal. A question arose before the Supreme Court whether the period of detention from 1.2.1980 to 16.2.1981 could be set off against the imprisonment imposed by the Metropolitan Magistrate, Delhi. Hon'ble Supreme Court while discussing the Section 428 of the Code and interpreting term "same case" has held as under:-
"There was no provision corresponding to section 428 of the Code in the Code of Criminal Procedure, 1898 which was repealed and replaced by the present Code. It was introduced with the object of remedying the unsatisfactory state of affairs that was prevailing when the former Code was in force. It was then found that many persons were being detained in prison at the pre-conviction stage for unduly long periods, many times for periods longer than the actual sentence of imprisonment that could be imposed on them on conviction. In order to remedy the above situation, section 428 of the Code was enacted. It provides for the setting off of the period of detention as an under-trial prisoner against the sentence of imprisonment imposed on him. Hence in order to secure the benefit of section 428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced. It follows that if a person is undergoing the sentence of imprisonment imposed by a court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in the latter case even though he was under detention during such period. In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence. It is not the period of detention undergone by him during the investigation, inquiry or trial of the same case in which he is later on convicted and sentenced to undergo imprisonment. He cannot claim a double benefit under section 428 of the Code i.e. the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well......"
(Emphasis supplied)
20. In Atul Manubhai Parekh Vs. Central Bureau of Investigation, (2010) 1 SCC 603, again the Hon'ble Supreme Court while discussing the term "same case" as mentioned in Section 428 of the Code has held as under:-
"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.
15. Let us test the proposition by a concrete example. A habitual offender may be convicted and sentenced to imprisonment at frequent intervals. If the period of pre-trial detention in various cases is counted for set-off in respect of a subsequent conviction where the period of detention is greater than the sentence in the subsequent case, the accused will not have to undergo imprisonment at all in connection with the latter case, which could not have been the intention of the legislature while introducing Section 428 in the Code in 1973.
16. The reference made in the several decisions cited before us to Section 427 CrPC appears to be a little out of focus since the same deals with several sentences passed in the same case against the same accused on different counts which are directed to run concurrently. Section 428 CrPC deals with a different situation, where the question of merger of sentence does not arise and the period of set-off is in respect of each separate case and the detention undergone by the accused during the investigation or trial of such case.
17. The philosophy of Section 428 CrPC has been very aptly commented upon by this Court in Govt.of A.P. vs. Anne Venkatesware, (1977) 3 SCC 298, in the following terms :
"5. ... Section 428 provides that the period of detention of an accused as an undertrial prisoner shall be set off against the term of imprisonment imposed on him on conviction."
(Emphasis supplied)
21. Coming to the fact of this case again, though the appellant, was arrested in 2009 but neither was he detained in district jail, Sonbhadra from 2009 to 26.7.2017 in S.T. No. 553 of 2012 nor was he produced before the Trial Court in connection with the aforesaid case during aforesaid period. The cases wherein he was languishing in District Jail, Sasaram, Bihar and district jail of district Gharhwa, Jharkhand were separate cases and were tried separately by different Courts of different States. These cases cannot be termed as same case as required under Section 428 of the Code for setting off the period of detention undergone.
22. In view of above discussion, it is clear that mere issuing of production warrant by any Court to incharge of any prison u/s 267 of the Code, to produce any person before such Court, does not amount detention or custody. The period of detention in another criminal case prior to actual production of such person before the Court in compliance of production warrrant issued u/s 267 of the Code, and period during which such convicted person was transferred to another prison, in compliance of another production warrant issued by another Court, would be excluded from the counting of period of sentence awarded to the convicted accused. Thus, in view of the section 428 read with Section 427 of the Code, the period of detention in another criminal case in another prison shall not be treated as detention in same case.
23. In view of the above discussion I am of the view that the period of detention of appellant, while he was detained in district jail, Sasaram, Bihar, District Jail, Gharhwa, Jharkhand in connection with the other criminal cases of those States, cannot be allowed to set off against the sentence awarded by the Trial Court in Special S.T. No. 553 of 2012 (State Vs. Sudama Uraon) u/s 3(1) of Act, P.S. Pannuganj, District Sonbhadra, wherein appellant has been sentenced for 3 years imprisionment and fine of Rs. 5000/-. The impugned judgement and order passed in aforesaid case is legal and justified. It requires no interference.
24. The appeal lacks merit and is accordingly dismissed.
25. Let a copy of this order be sent to the lower court for information and necessary compliance.
Order Date :- 6.12.2019 Vandana