Hari Shankar Sah vs State of Bihar and Others

This writ petition on behalf of the sole Petitioner has been filed for his release on the ground that he has already served the sentence awarded to him by the concerned Courts.

According to the Respondents on 28.11.2001 first conviction was awarded to the Petitioner and he was sentenced to rigorous imprisonment for one year. He was later convicted in three more cases. The total term of imprisonment comes to three years seven months. The Petitioner being in custody since 15.3.2001 is entitled to set-off of eight months and thirteen days with respect to the first case. No set-off can be allowed in other cases as from 28.11.2001 his status became that of convict.

The stand of the Respondents is contrary to the decision of the Supreme Court in State of Maharashtra and Another Vs. Najakat Alia Mubarak Ali, and a Bench decision of this Court in Shambhu Nath Singh Vs. The State of Bihar and Others Before we refer to the decisions aforesaid it would be appropriate to give brief particulars of the conviction and sentence awarded to the Petitioner as under:

(i) Rigorous imprisonment for one year in G.R. 1230/95, Tr. No. 616/2001 of the Court of Sub-divisional Judicial Magistrate, Muzaffarpur on 28.11.2001.

(ii) Rigorous imprisonment for six

months in G.R. 1404/92, Tr. No. 779/2001 of the Court of Sri S. Kumar, Judicial Magistrate, 1st Class, Muzaffarpur on 29.11.2001.

(iii) Rigorous imprisonment for one year in G.R. 1403/92, Tr. No. 79/2001 of the Court of Shri S. Kumar, Judicial Magistrate, 1st Class, Muzaffarpur on 6.12.2001.

(iv) Rigorous imprisonment for one year and one month in G.R. 1063/95, Tr. No. 791/2001 of the Court of Sri Suril Kumar Sinha, Judicial Magistrate, 1st Class, Muzaffarpur on 19.12.2001.

According to the calculation made by the Respondents, vide chart supplied to us at the time of hearing, after giving set-off of eight months and thirteen days as undertrial prisoner the probable date of his release comes to 14.10.2004. As indicated above in calculating the period the Respondents have disallowed the benefit of set-off with respect to the later three cases.

It may be mentioned that u/s 427 Code of Criminal Procedure. when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment such imprisonment would commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurently with such previous sentence. In other words, in the absence of any order to the contrary in the subsequent case, upon proposition of sentence of imprisonment therein, the period of sentence will commence at the expiration of the period of imprisonment awarded in the previous case. In the instant case, as no such order was passed in terms of Section 427 Code of Criminal Procedure. the sentence of the Petitioner would have commenced at the expiration of the sentence awarded in the previous case.

In State of Maharashtra and Another Vs. Najakat Alia Mubarak Ali, however the Supreme Court overruled the earlier view to the above effect in the case of Raghbir Singh Vs. State of Haryana, observing as under:

Reading Section 423 of the Code in the above perspective, the words "of the same case" are not to be understood as suggesting that the set off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words "of the same case" were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words.

Following the above decision of the Supreme Court a Bench of this Court held in the case of Shambhu Nath Singh (Supra) that the entire period of custody whether as undertrial prisoner or as convict has to be counted for the purpose of set-off notwithstanding that during part or whole of the period the Petitioner was serving sentence in another case. In other words, he is entitled to count the entire period spent in custody as undertrial prisoner or a convict in different cases for the purpose of set off notwithstanding that no order as contemplated in Section 427 Code of Criminal Procedure. was passed by the concerned Courts directing that the sentence shall run concurrently.

The plea of the Petitioner, it would appear, is in consonance with the decision of the Supreme Court and this Court aforesaid and in these premises we direct that the Petitioner be released from the custody if not wanted in any other case.

The petition stands allowed accordingly.