P. Kasumani v. The Superintendent of Central Prison Salem & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.07.2008CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUH.C.P.No.857 of 2008P. Kasumani.. Petitioner-Vs-1. The Superintendent of Central Prison Salem. 2. The Inspector of Police, Karumalaikuudal Police Station, Namakkal District. ..Respondents Petition under Article 226 of the Constitution of India, prayingfor the issue of a Writ of Habeas Corpus, directing the respondentsto produce the body of the detenu Puli @ Prabhu Son of Mani @Panneerelvam before this Court and set him at liberty. For Petitioner :: Mr.M. KrishnamoorthyFor Respondents :: Mr. M. Babu Muthu Meeran Addl. Public Prosecutor [for R-2 to R-4]O R D E RS.PALANIVELU, J.The petitioner is wife of detenu by name Puli @ Prabhu. He wasinvolved in as many as 5 criminal cases in Cr.No.534/05, 616/05,664/05, 663/05 and 311/05. First and second cases were registeredunder Section 454, 380 and 461 I.P.C while third and fourth caseswere under sections 454 and 380 I.P.C. Last case, Sl.No.5 wasregistered under Section 454 r/w 511 I.P.C. First two cases weretaken up in CC Nos.28 of 2006, 29 of 2006, on the file of theJudicial Magistrate No.1, Gobichettipalayam, third and fourth caseswere taken on file in CC Nos.743 of 2005, 742 of 2005 on the file ofthe Judicial Magistrate, Trichengode and the last case was taken upin C.C.No.56 of 2006 on the file of the Judicial Magistrate, Mettur.2. In the first four cases the detenu was convicted by therespective Courts. In the first and second case, his terms ofimprisonment were two years rigorous imprisonment apiece and in thirdand fourth cases, rigorous imprisonment for one year each. In allthese cases, he had been continuously in jail right from 30.11.2005. https://hcservices.ecourts.gov.in/hcservices/

3. The facts that are essential for discussion and disposal ofthe petition are as follows: The case in CC.No.56 of 2006 was disposed of by the learnedJudicial Magistrate No.2, Mettur on 12.06.2007 handing down asentence of simple imprisonment for two years. While awarding thesentence, the Presiding Officer specifically mentioned in theJudgement that out of simple imprisonment for two years, the periodfrom 24.04.2006 till 12.06.2007 i.e., the date of sentence, shall beset off under section 428 Cr.P.C. It is the contention of thepetitioner that though the detenu had already served the sentence asimposed by the Court, still he has not been released from the prisonand he has to be set at liberty.4. Mr.M. Krishnamurthy, learned counsel for the petitioner wouldcontend in vehemence that inasmuch as the detenu had beencontinuously serving the sentence imposed by various courts and alsothe one imposed by the Judicial Magistrate No.2, Mettur, in the fifthcase, he should have been discharged from the prison on 24.04.2008,but his detention has been retained by the prison authorities, whichis inadmissible in law.5. Repelling the above contentions, Mr.M. Babu Muthu Meeran,learned Additional Public Prosecutor would submit that as per thecalculation of the Prison authorities, taking into account of theperiods of sentences the detenu will have to be released from theprison on 07.02.2009 and his request for earlier release from thejail cannot be entertained. He filed the reply affidavit of firstrespondent in which it has been calculated that from 24.04.2006 upto01.02.2007 a period of 284 days has to be set off from the period ofsentence. It is not known where from the first respondent hasobtained the date 01.02.2007. The date of sentence is 12.06.2007 butas per the first respondent, beginning of sentence is 16.12.2007,adding two years with the period. As per the first respondent thedate of release of the detenu is 16.12.2009. After set off as perthe Judgement, the date of release will be 07.03.2009, provided theineligible set off period is between 02.02.2007 and 11.06.2007. TheCourt is at loss to find out how the date of beginning of sentencecould be fixed as 16.12.2007 and date of release as 07.03.2009. Thereply affidavit is silent in this regard.6. In the reply affidavit it is further stated as follows: "S.No.1 & 2 are to run concurrently, the date of release16.12.2007 S.No.3 & 4 are to run concurrently, the date of release14.10.2007 S.No.5, the date of release 07.03.2009"It is also mentioned therein that since the above three group ofwarrants are consecutive sentences one after another, the actual dateof release is 07.03.2009. the set off period is restricted to thedate of conviction in the first case. Hence the detenu is not ableto get double benefit of spending one particular period as a convictand as an under trial prisoner. It is the essence of the contention https://hcservices.ecourts.gov.in/hcservices/ that the period directed to be set off by the Judicial MagistrateNo.2 Mettur pertaining to the period of conviction in the earliercase and that period could not be availed towards set off in thesubsequent case viz., in the fifth case and in case, if the accusedis allowed to avail the conviction period in the previous casetowards set off, he would get double benefit. 7. We are more conscious about the above said contentions. Thedisturbing feature is that the prosecution had not preferred anyappeal as regards the sentence portion of the Judgement. Neither ofthe party had preferred any revision or appeal before the appropriateforum. Had the prosecutor, the Inspector of police, Karumalaikoodalpolice station in Salem District carried the matter in an appeal orrevision, agitating the sentence portion as contended in the replyaffidavit, he might have obtained proper verdict by this time.Having failed to take up the matter before the higher fora, it is nowtoo late to contend that no set off could be given to the detenu asper the judgement. 8. We carefully scrutinised the circumstances available in thiscase. The failure on the part of the prosecutor is a bar for denyingthe benefit of set off available to the detenu.In order to have athorough glimpse of the subject, the scheme of the code with respectto the concept of set off as incorporated in the statue has to bethoroughly looked into. Before 1973, in the old Code of CriminalProcedure there was no such analogous provision for setting off theperiod of sentence. The ideology has been envisaged, Sections 427 and428 were introduced for the first time in 1973. It is apposite tonote that even though the import of section 427, 428 of Cr.P.C.appear to be distinctive, the judicial pronouncements of the Supremecourt paves way to decide that the intention of the legislature forproviding benefit of the accused should reach him in letter andspirit.9. In this context, it is advantageous to have extraction of boththe provisions for better understanding of the principles laid downby the Apex Court:"427. Sentence on offender already sentenced foranother offence:- (1) When a person already undergoing asentence of imprisonment is sentenced on a subsequentconviction to imprisonment or imprisonment for life, suchimprisonment or imprisonment for life shall commence atthe expiration of the imprisonment to which he has beenpreviously sentenced, unless the Court directs that thesubsequent sentence shall run concurrently with suchprevious sentence. (proviso and Sub-section (2) omitted)428. Period of Detention undergone by the accused tobe set off against the sentence of imprisonment:- Wherean accused person has, on conviction, been sentenced toimprisonment for a term [not being imprisonment indefault of payment of fine], the period of detention, ifany, undergone by him during the investigation, inquiry ortrial of the same case and before the date of suchconviction, shall be set off against the term of https://hcservices.ecourts.gov.in/hcservices/ imprisonment imposed on him on such conviction, and theliability of such person to undergo imprisonment on suchconviction shall be restricted to the remainder, if any,of the term of imprisonment imposed on him."10. As far as 427 Cr.P.C. is concerned, the second convictionshall be consecutive, which shall begin on the expiry of imprisonmentto which the accused was previously sentenced. The terms addedfurther are "unless the court directs that the subsequent sentenceshall run concurrently with such previous sentence" 11. Proviso to Section 427 and Sub-section (2) thereof do notpertain to the issue and they are not being discussed. If the courtdoes not specifically mention in its Judgement regarding set off, thesentence imposed by it shall run consecutively. Specific directionof the Court is sine-quo-non for providing set off. If there isspecific direction, there could not be no debate. 12. As far as the case on hand is concerned, even though it hasnot been specifically pointed out in the sentence portion of theJudgement that the period of sentence imposed in the previous caseshall be taken into consideration for the purpose of setting off forthe present case, it is mentioned that the period from 12.4.2006shall be set off. In other words, the operative portion of theJudgement viz., the sentence portion does not contain the existenceof previous case nor the particulars of sentence relating to the saidcase. Still the Judgement cannot be said to be unsustainable for thereason that the learned Judicial Magistrate has categoricallyobserved that the period from 24.04.2006 till the date of sentenceviz., 12.06.2007, during which period the accused has been injudicial custody "in this case" shall be set off. The Judgement goesto the effect that the set off shall be under Section 428 Cr.P.C..Strictly speaking, it should have been under Section 427. We see noillegality or infirmity in the terms employed in the final verdict ofthe learned Judicial Magistrate.13. As adverted to supra, if the prosecutor entertained any doubtas to the set off part he should have got it clarified by preferringappeal or revision. It was not done. Hence the Judgement of theJudicial Magistrate become final. It cannot be reopened by otherproceedings. We hasten to add that Section 427 Cr.P.C. does notcontemplate about the number of previous cases but merely says thecase in which the accused was previously sentenced.14. Learned counsel for the petitioner would place reliance uponthe decision reported in 2001 Supreme Court Cases (Cri)1106 [State ofMaharashtra and Another vs. Najakat Alia Mubarak Ali] decided by theLarger Bench. The majority view taken in the said decision is asfollows:'"21. We have no reason to think that the HighCourts mentioned have gone wrong in taking the viewthat Section 428 of the Code permits the accused tohave the period undergone by him in jail as an undertrial prisoner set off against the period of sentenceimposed on him irrespective of whether he was in jail https://hcservices.ecourts.gov.in/hcservices/ in condition with the same case during the period. We,therefore, respectfully dissent from the view expressedby the two-judge Bench of this Court in Raghbir Singhv. State of Haryana."15. Earlier in Raghbir Singh's case (Raghbir singh v. State ofHariyana reported in (1984) 4 SCC 348 : 1984 SCC (Cri)616) TheirLordships had held as follows:"In such a case the period of detention is really apart of the period of imprisonment which he is undergoinghaving been sentenced earlier for another offence. It isnot the period of detention undergone by him during theinvestigation, enquiry or trial of the same case in whichhe is later on convicted and sentenced to undergoimprisonment. He cannot claim a double benefit underSection 428 of the Code i.e., the same period beingcounted as part of the period of imprisonment imposed forcommitting the former offence and also being set offagainst the period of imprisonment imposed for committingthe latter offence as well." 16. In the above said case, it was decided that the accusedcannot claim a double benefit by getting set off the period duringwhich he was in prison based on the conviction for another case. Inshort, it was held therein that the accused can get the benefit ofset off in one of the cases but not in both.17. When the Judgement was quoted in Bombay High Court, thelearned Single Judge expressed the view that the accused is entitledto the benefit of set off in the second case as well he was in theperiod of custody during the course of the trial. When the matter onappeal came up before the Honourable Supreme Court, it was foundappropriate that the matter be heard by a larger Bench and hence thedecision in 2001 SCC (Cri) 1106 came to be pronounced.18. Their Lordships in Najakat Alia Mubarak Ali case (supra) heldthat section 428 Cr.P.C. does not contain any indication that if aperson was in jail as an under trial prisoner in the second case, thebenefit envisaged in the Section can be continued to him in respectof the second case. Further it was also observed that the words, "ofthe same case" are not to be understood as suggested that the set offis allowable only if the earlier jail life was undergone by himexclusively for the case in which the sentence is imposed.19. As mentioned already, the detenu would avail the set offavailable to him by virtue of the provision under Section 427 ofCr.P.C. While Section 427 holds the affairs of the circumstances asto the sentences, it is futile to contend that he has to be releasedon 7.3.2009. As per the Judgement rendered in C.C.No.56 of 2006dated 12.06.2007, the set off period shall be from 24.04.2006. Henceby 23.04.2008, the sentence of simple imprisonment for two years wasover and thereafter he shall be released.20. In view of such matter, we are of the considered view thatthe contention projected on behalf of the detenu has considerable https://hcservices.ecourts.gov.in/hcservices/ force. The petition deserves to be allowed. 21. In fine, the petition is allowed. The detenu/convict shallbe set at liberty forthwith, unless he is required in connection withany other case. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ggsTo1. The Superintendent of Central Prison Salem. 2. The Inspector of Police, Karumalaikuudal Police Station, Namakkal District. 3. The Judicial Magistrate No.2, Mettur.4. -Do-Thro The Chief Judicial Magistrate, Salem5. The Public Prosecutor, High Court Madras.+ 1 CC To Mr.M.Krishnamoorthy, Advocate SR NO.39983 H.C.P.No.857 of 2008KA(CO)SRA(07/08/2008)