Bombay High Court
Sanjay Shriram Gondchar vs The State Of Maharashtra on 11 February, 2011
Author: A.H. Joshi
Bench: A.H. Joshi, A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No.93 of 2011
Sanjay Shriram Gondchar,
Convict No. C-3818,
Central Prison,
Amravati. .... Petitioner.
Versus
1. The State of Maharashtra,
through the Secretary,
Home Department,
Mantralaya,
Mumbai.
2. The Superintendent,
Central Prison,
Amravati. .... Respondents.
*****
Petition is received by Post.
Mr. T.A. Mirza, APP for respondents.
*****
CORAM : A.H. JOSHI AND
A.B. CHAUDHARI,JJ.
Date : 11th February, 2011.
ORAL JUDGMENT [Per A.H. Joshi, J.]:
1. Rule. Rule is made returnable forthwith and the petition is heard finally.
::: Downloaded on - 09/06/2013 16:50:57 ::: 22. This is a Letter-Petition.
3. Petitioner wants earlier release upon getting set-
off under Section 428 of Criminal Procedure Code. For this purpose, he relies upon the ratio as laid down in case of State of Maharashtra & another Vs. Najakat Ali Mubarak Ali [(2001) 6 SCC 311].
4. Heard learned APP Mr. T.A. Mirza and perused the Letter-Petition as well as the said Judgment of Hon ble Supreme Court.
5. Admitted facts are as follows:-
[a] The petitioner was under trial prisoner in a case in which he was acquitted.
[b] Petitioner was not arrested, and was not an under trial prisoner in the case which has led to conviction.
6. Petitioner says that it was the duty of Police to arrest him, though he was already under arrest, and relies on the fiction that he be treated as arrested , and by applying the deeming fiction, the set-off be granted to him towards the imprisonment which he has suffered in the case wherein he is acquitted.
::: Downloaded on - 09/06/2013 16:50:57 ::: 37. The language used in Paras 41 and 44 of the Judgment in case of State of Maharashtra & another Vs. Najakat Ali Mubarak Ali [cited supra], which read as follows, is thus:-
SETHI, J. [dissenting]:
41. Facts of this case are that the respondent was arrested on 29-11-1995 in connection with CR No. 707 of 1995 registered at Khar Police Station, Mumbai. During the investigation it transpired that he was also involved in the offences registered vide CR No. 737 of 1995 on 29-11-1995 at Santacruz Police Station. He was shown arrested in both crime numbers. After being charge-sheeted in both the cases, he was tried separately. In one of the cases he was convicted and sentenced under Sections 395 and 397 IPC on 3-4-1998. The learned Judge held that the accused was entitled to set-off under Section 428 CrPC for the period custody already undergone. He was convicted in the second case for the offences punishable under Sections 392, 395 IPC and held entitled to set-off under Section 428 CrPC. The respondent prayed for his release as according to him, he had already served sentences.
Relying upon the government resolution dated 7-9-1974 the jail authorities refused to release the respondent on the ground that he could not be given set-off in the second case as he had been given set-off in the first case. The accused filed a petition in the High Court which was allowed by the impugned order, holding that the convict was entitled to benefit of Section 428 of the Code in both the cases for the period of detention undergone by him during investigation, enquiry and trial.
PHUKAN, J. [concurring]:
44. The only question which according to me needs consideration is the true effect of the expression same case as appearing in Section 428 of the Code of Criminal Procedure.::: Downloaded on - 09/06/2013 16:50:57 ::: 4
The provision is couched in clear and unambiguous language and states that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be one undergone by him during investigation, enquiry of trial in connection with the same case in which he has been convicted. Any other period which is not connected with the said case cannot be said to be reckonable for set-off.
The view of learned Brother Mr. Justice Thomas according to me accords the legislative intent. Acceptance of any other view would mean necessary (sic necessarily) either adding or subtracting words to the existing provision, which would not be a proper procedure to be adopted while interpreting the provision in question.
8. The crux of Section 428, Criminal Procedure Code is same case.
9. It may happen that in one FIR, multiple offences are involved, or in one case, multiple offences are tried together.
10. Present case is not a case of either nature.
11. Admittedly, registration of offences in both the cases being different, both cases were tried separately.
12. Petitioner s claim for set-off is based on a claim which has not fructified into a right by legislative act or a judicial precedent.
::: Downloaded on - 09/06/2013 16:50:57 ::: 513. In this background, petitioner is not entitled to get the period of under trial imprisonment suffered in one case for set-off against the sentence to be undergone in another case.
14. In the result, petitioner cannot be granted any relief. Petition is dismissed.
15. Rule is discharged.
16. Steno copy of this order be supplied to learned APP to communicate the contents of this order to the prisoner through the Superintendent of Jail concerned.
JUDGE JUDGE
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