TMI Blog2011 (10) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... an the period of remand be taken into consideration for the purposes of set off against the sentence which is then passed upon conviction in the second case as well? 3. Learned counsel for the petitioner has principally placed reliance on two Division Bench judgments of this Court in the case of Shambhu Nath Singh v. The State Of Bihar Ors. , since reported in 2003 (1) PLJR 747 and in the case of Hari Shankar Sah v. State Of Bihar Ors. , since reported in 2003 (3) PLJR 322. Both these decisions have, in fact, followed and applied the judgment of the Apex Court in the case of State of Maharashtra v. Najakat alias Mubarak Ali, since reported in (2001) 6 SCC 311 : (AIR 2001 SC 2255). His submission further would be that the view of the State Government in this regard as apparent from the Circular No. 4987 dated 10th November, 2010 as contained in Annexure-4 to the writ application and Annexure-A to the Court affidavit is correct and the subsequent circular staying its operation issued by Jail Directorate being Circular No. 5659 dated 22nd December, 2010 being Annexure 3/1 to the writ application and Annexure A/1 to the counter-affidavit is wrong and contrary to law. 4. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence. But in this second case he was granted bail, as noticed above, on 09-03-2011, so the period of life sentence, as served by him in the second case, would start from 24-07-2008 up to 09-03-2011 when he was granted bail by this Court in the second case. 8. The third case is G.R No. 1774/2003 (Tr. No. 115/2010), which is a case under Section 25(1-B) and Section 26 of the Arms Act. In this case, he was in custody as an under trial first for the period 17-11-2003 to 17-12-2003, i.e 1 month 1 day. It is not in dispute that while in custody in other two cases serving out sentences, he was remanded to judicial custody in this third case on 21-09-2007. As noticed earlier, in the first case he had been sentenced on 26-07-2006 and was serving out his sentence and in the second case he was convicted and sentenced on 13-01-2007 and, as such, when he was remanded in this third case on 21-09-2007 he was in custody serving out sentence in other cases as well. In this third case, he was sentenced on 16-01-2010 by Sri Prakash Paswan, Judicial Magistrate 1st Class, Sitamarhi. The sentence awarded in this third case was 2 years rigorous imprisonment with further 6 months rigorous imprisonment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner. This is the specific stand of the State in Paragraph 9 and 10 of its counter-affidavit. 11. It is the corretness of these two positions taken by the two parties, that is, to be decided in the present case. 12. In order to appreciate the contentions and the law in that regards it would be appropriate first to notice relevant statutory provisions in this regard which are Sections 31(1), 427 and 428 of the Code of Criminal Procedure and Section 64 of the Indian Penal Code respectively, which are quoted hereunder:- 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 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. 427. Sentence on offender already sentenced for another offence.- (1) When a person already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to which he may be liable under a commutation of a sentence. 13. The first thing that we would like to note is that, inter alia, these Sections give out a scheme for effectuating punishment. The ordinary rule is that sentences awarded are to run consecutively unless the Court directs them to run concurrently, if there be more than one sentence awarded, may be in the same trial (Section 31(1) Cr. P.C) or different trials [Section-427(1) Cr. P.C]. Imprisonment in default of payment of fine or fines are in excess of punishment and, therefore, to be added consecutively and not concur [Sectin 64 of the India Panal Code]. The exception being apart from where it is permissible for the Court to order concurrent sentences where a person is first convicted to life sentence and then to other sentences [Section-427(2) Cr. P.C]. These provisions do not deal with any principle of set off. 14. The principle of set off as against period of conviction, detention in the case as against sentence upon conviction was introduced for the first time by this Criminal Procedure Code, 1973 in terms of Section 428 thereof. What is of importance therein is that the period of detention as an under-tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals were disposed of by this judgment. The Apex Court allowed the appeal of the State clearly holding in paragraphs of the reports referring to Section-428 of the Criminal Procedure Code. That Section only provides for a set off . It does not equate under-trial detention or remission detention with imprisonment on conviction . The provision to set off expresses a legislative policy. This does not mean that it does away with the difference in the two kinds of detention and puts them on the same footing for all purposes. It further held that the claim of remand under the Prisoners Act was for the Government to work out according to rules where they thay grant remission which is exclusively within the province of appropriate Government. 17. So far as the second relief of the petitioners with regard to preventive detention is concerned, the Court clearly pointed out in paragraph-7 of the reports that Section 428 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 the investigation, enquiry or trial in connection with the same case in which he has been convicted. Thus, the detention under pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention is really a part of period of imprisonment which he is under going having been sentenced earlier for another offence. It is not the period of detention undergone by him during the investigation, enquiry or trial of the same case in which he is later on convicted and sentenced. Here again the distinction in the status and nature of detention is maintained. 20. Then, we refer to the case of State of Maharashtra v. Najakat Alia Mubarak Ali, since reported in (2001) 6 SCC 311 : (AIR 2001 SC 2255). This is a decision of three Judges of the Apex Court which is a split decision where majority while interpreting Section-428, Cr. P.C in the facts held that as 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 and as such the period of remand would be available for set off under Section-428, Cr. P.C in both the cases. They would be entitled to double benefit. The majority disapproved the judgment of the Apex Court in the case of Raghvir Singh, ((1984) 4 SCC 348 : AIR 1984 SC 1796) (supra). While doing so, their Lordships noticed that it would be the period of remand in each case that would be set o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 603: (AIR 2010 SC (Supp) 429). In this case the question arose for consideration is contained in paragraph-3 and is quoted hereunder:- 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. 25. The answer is found in paragraph-14 of the reports. After considering the cases of Champalal Punjaji Shah, ((1982) 1 SCC 507 : AIR 1982 SC 791) (supra), Raghvir Singh, ((1984) 4 SCC 348 : AIR 1984 SC 1796) (supra) and Najakat Alia Mubarak Ali, ((2001) 6 SCC 311 : AIR 2001 SC 2255) (supra), their Lordships held 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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