Bhajna vs Supdt., Central Jail, Patiala

Teja Singh, C.J.—This habeas corpus petition was referred to the Division Bench by my learned brother because he considered that the question of law involved therein was of general importance and required an authoritative pronouncement. The facts briefly stated are as follows:

Bhajna, petitioner was tried by S. Charan Singh Tiwana, Magistrate 1st Class in two separate cases, one u/s 325, I.P.C., and the other u/s 323, I.P.C. He was convicted in both and was sentenced to 11/2 years'' rigorous imprisonment together with a fine of Rs. 50/- in the first case and one month''s rigorous imprisonment in the second case. Both the cases were decided on 12-5-1951, but the Magistrate omitted to give direction in either case as to how the sentences were to run, that is to say, whether they were to run concurrently or one after the other. Bhajna appealed to the Court of the Sessions Juage in both the cases. His appeal in section 323 case was dismissed in entirety, but that in the other was accepted only to the extent that the term of imprisonment awarded to him was reduced to one years rigorous imprisonment. The Sessions Judge disposed of both the appeals on 11-7-1951, but he too did not say anything as to how the sentences were to take effect. Against the order of the Sessions Judge in the appeal arising out of 325 case, Bhajna moved this Court on the revision side. On 16-8-1951, Bhajna as well as the complainant applied to the Court for permission to compromise the case. The Court accorded the permission and after the case had been compounded, Bhajna''s petition was accepted and his conviction and sentence were set aside. No revision petition against the order of the Sessions Judge in 323, case was preferred to this Court and accordingly Bhajna''s conviction and sentence in so far as that case is concerned, stood.

The present petition was made on 20-8-1951. The position of the petitioner is that since his sentence u/s 325, I.P.C., has been set aside by this Court, the period for which he has already undergone imprisonment after his conviction on 12-5-1951 and which is more than one month, should be counted towards the sentence awarded to him in 323 case, his further detention in jail was illegal and he was entitled to be released forthwith.

The petition is opposed by the learned Advocate General who appeared on behalf of the Superintendent of the Jail. He contends that notwithstanding the omission of the trial Magistrate to give any direction as to how the sentences awarded to the petitioner in the two cases were to take effect, they were to run one alter the other. He further contends that according to the rules contained in the Manual for the Superintendence and Management of jails, the Superintendent of Jail was competent to decide which of the two sentences was to commence first and since he decided that in the present case the sentence awarded to the petitioner in the section 325 case was to commence first and this sentence was set aside by the High Court on 16-8-1951, the sentence in the other case started to run from that date, and the petitioner could be released only after he had completed one month''s imprisonment with effect from that date.

As regards the first contention of the learned Advocate-General, I am inclined to agree with him. Section 397 of the Criminal Procedure Code lays down that when a person already undergoing a sentence of imprisonment, etc., is sentenced to imprisonment etc., such imprisonment shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. When applying this principle to a person who is convicted and sentenced to imprisonment by a Court in more than one case on the same day, the imprisonment in the case decided first should be regarded as having commenced before that awarded in the case decided later, and the question which case is decided first and which later, is one of fact.

As regards the second contention, the learned Advocate-General placed his reliance upon the first part of Clause (b) of Rule 455 which reads as follows:

Where separate sentences have been passed in separate trials, the sentences being consecutive u/s 397 of the Code of Criminal Procedure the operation of the second sentence will, in the event of the first sentence being set aside on appeal commence from the date of decision in that appeal.

If, now ever, an appeal is also filed in the second case it will be competent to the Court hearing the second appeal to direct that credit shall be given for such period as is covered between the date of the second conviction and the date on which the first appeal was accepted.

No credit can be given in the second case, however, for any period passed in jail under the first sentence prior to the date of the conviction in the second case by the Court of original jurisdiction.

In my judgment, the rule does not lay down the correct law, and my reasons for coming to this conclusion are very simple. When a sentence awarded to a person in a case is set aside by a higher Court on appeal or revision, the effect is that it is washed away completely as if it was never awarded. So when a man is awarded imprisonment in two cases and the imprisonment in one is set aside, the result that must naturally follow is that the time which he spent in jail up to the date his imprisonment was set aside, must be credited to the imprisonment to which he was subjected in the second case.

I am supported in this view by a Bench Decision of the Bombay High Court in Emperor Vs. Babibai, . The facts of that case are analogous to those of the present one and in that case reliance was placed on behalf of the Emperor on Rule 392 of the Jail Manual, the words of which are similar to words of 455 of our Rule. It was held by Beaumont, C. J., with whom his learned colleague agreed, that when a conviction is set aside, the sentence imposed is not terminated from that date, it is destroyed, and rendered null and void from its inception and the part of the sentence served cannot be attributed to the conviction. The learned Judge further held that where a person is awarded two consecutive sentences for separate offences and while undergoing the first the same is set aside with the result that there is no sentence on that count; the sentence on the second count which is upheld must commence from the date of conviction and any part of the sentence already served must be attributed to the only sentence legally existing. Rule 392 of the Jail Manual was held to be invalid.

The other case in point is ''Partumal Tourmalv. Emperor'', AIR 1947 Sind 63. The prisonerin that case was convicted by a Magistrate of two seperate offences. In one judgment he was sentenced to six months'' R.I., and in the other to two months'' R.I. Both the judgments were passed on the same date. Subsequently, the judgment which awarded the sentence of six months'' R.I., was set-aside. While discussing the question as to whether two months'' R.I., which the prisoner had suffered before the judgment by which he was awarded six months'' R.I., was set aside, should be appropriated to the judgment in the other case, this is what the learned Judges observed:

We think it should be appropriated to the judgment still in force; that judgment sentenced the accused to two months'' R.I., which sentence he has already guttered and he is entitled, therefore, to be discharged from prison. If this period of two months'' should be appropriated to the judgment which has been sec aside, then it may be said that he has further to suffer rigorous imprisonment for two months or four months in all. There appears now no lawful basis for imprisonment for four months. We do not see how when a judgment has been set aside, the imprisonment already suffered can be, as it were, passed by or that the imprisonment which he has suffered under the judgment which has been set aside, should be counted as nothing against a judgment which is in force under which he has properly been sentenced and which sentence he has in effect actually undergone when the two judgments bear the same date.

As against these two authorities, the learned Advocate-General drew our attention to ''Emperor v. Koural Shal'', AIR 1932 Sind 159, in which a different view was taken. In the opinion of the learned Judges, section 397 applies even when the sentence awarded in a case decided first in point of time is later on set aside. With all deference, 1 would follow the later view of the same Court in Partumal Tourmal v. Emperor''. AIR 1947 Sind 63 supported as It is by the view of the Bombay High Court. It may be mentioned that there is no evidence in this case to show that section 325 case was decided first and accordingly the sentence awarded to the petitioner in that case was the first sentence. This being the case, even if it be conceded for the sake of argument that Part (B) of Rule 455 embodied correct interpretation of the law, there is no warrant for holding that the sentence in Section 323 case commenced from the date the decision in the first case was set aside. It is admitted proposition of law that when a case can be looked at from two points of view, the accused is entitled to the benefit of the view which''s more favorable to him. There being no evidence regarding the order in which the cases were decided, it is possible that Section 323 case was decided first and the other after that and if this was the case the sentence in the former case commenced from the date the cases were decided, and the whole of it was served out by the petitioner fore his revision petition arising out of Section 335 case was decided by the High Court.

For all these reasons I hold that further detention of the petitioner in jail was illegal. As he was released on bail by my learned brother I would order that his petition be accepted and his bail bond shall stand discharged.

Chopra, J.

I agree.