Kora Karuppan @ Chinnathambi vs Superintendent of Prisons, Central Prison

V.S. Sirpurkar, J.—The question in this case is really concluded by the reported decision of the Supreme Court in STATE OF

MAHARASHTRA AND ANOTHER VS. NAJAKAT ALIA MUBARAK ALI reported in 2001 SCC (Cri) 1106, wherein it is held by the

Supreme Court that the words ""of the same case"" appearing in Section 428 of Criminal Procedure Code 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 Supreme

court has observed thus:

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. It must therefore, be held that Section 428 of the Code permits the accused to

have the period undergone by him in jail as an under trial prisoner set off against the period of sentence imposed on him irrespective of whether he

was in jail in connection with the same case during that period.

The facts are peculiar in this habeas corpus petition. The petitioner was undergoing sentence in various crimes. In that way, the petitioner

appears to be a regular jail bird. He points out that he was taken in custody on 18.5.1998 in respect of four crimes, they being Crime Nos. 2422

of 1992, 2420 of 1992, 2421 of 1991 and 2429 of 1992 and all these crimes were committed within the jurisdiction of Dharmapuri Town Police

Station. It seems that the petitioner was absconding after these crimes and was apprehended for the first time on 18.5.1998 and has continued to

be inside till all the four cases based on these crime numbers are decided.

It is contended by the petitioner that these four cases in respect of the aforementioned crime numbers were C.C.Nos.146 of 1996, 143 of

1997, 144 of 1997 and 13 of 1998. They were all tried by Judicial Magistrate of I Class No. 1, Dharmapuri. The petitioner points out that in the

first of these cases, he was sentenced to suffer three years of rigorous imprisonment, while in others, the same Court awarded the same sentence

and directed to be made concurring with the sentence awarded under C.C. No. 146 of 1996. The argument of the learned counsel is very simple.

He says that if that is so, then the C.C. No. 146 of 1996 becomes the basic case. If for that, the petitioner was sentenced to suffer three years of

rigorous imprisonment, he had already suffered rigorous imprisonment in between the period 18.5.1998 to 8.4.2002 when the judgment was

declared. He points out that in all the four matters, the petitioner was in remand during this period of 18.5.1998 to 7.4.2002 and therefore he had

completed three years of sentence period in C.C. No. 146 of 1996 and since the sentence in other three cases was ordered to run concurrently

with the sentence in C.C. No. 146 of 1996, that would be completion of the three years period.

As against this, the jail authorities point out that while the petitioner was in remand for C.C. No. 146 of 1996, the remand in C.C.Nos.143 of

1997, 144 of 1997 and 13 of 1998 could not be given advantage to him insofar as the calculations to be made in the light of the language of

Section 428 of Cr.P.C. Precisely that question has been decided by the Supreme Court in the aforementioned matter by a majority judgment. The

Supreme Court has very precisely held that the accused can suffer incarceration of more than one sentence at one and the same time. It is not

necessary that the period of incarceration should be calculated separately or should be so calculated as regards only the first offence and not

against the following offences.

It is apparent from the record that while the petitioner was in remand for the offence in C.C. No. 146 of 1996, he was also under remand for

the other cases such as C.C.Nos.143 of 1997, 144 of 1997 and 13 of 1998. It is the admitted position and very fairly admitted by the learned

Public Prosecutor and the Senior Advocate Mr. I. Subramanian that the accused undoubtedly used to be produced under Prisoner''s Transit

Warrant in all the four cases. Therefore, it is apparent that while the petitioner was suffering an incarceration on remand in the crime related to C.C.

No. 146 of 1996, he was also in remand in the other three cases. When we read the Supreme Court judgment, it is apparent that the Supreme

Court has accepted this principle that the accused could be in remand for more than one offence. Once this position is clear, then it is apparent that

the petitioner has undergone the sentence of three years from 18.5.1998 till the judgment was declared in these cases on 8.4.2002. Under such

circumstances, we are of the clear opinion that the above Supreme Court case applies on all fours.

The learned Senior Counsel tried to argue that if the judgments were to be seen separately of the three Supreme Court judges, it would be

apparent that the judgment of R.P. Sethi, J was a minority judgment taking a view that the remands would have to be calculated separately for

separate offences and that the accused could not be sought to be in a common remand for more than one offence. The learned counsel further

goes on to suggest that the judgment of Justice S.N. Phukan, J also in a way supports this when the learned Judge says in paragraph 44 thus:

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. 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 or

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.

However, we find that the learned Judge has ultimately agreed with the views expressed by Justice Thomas in which the learned Judge holds

that there could be a common remand also. We have no doubt that in this present case, there was a common remand and therefore the accused

was also suffering the incarceration prior to his conviction in all the four cases. In that view, there would be no question of retaining the petitioner in

jail.

Hence, the Habeas corpus petition is allowed and the petitioner is directed to be released forthwith unless he is required in some other case.