Gurdial Singh vs State of Punjab

J.B. Garg, J.

Gurdial Singh son of Sarwan Singh has moved the present petition under Articles 226/227 of the Constitution read with Section 482 of the Code of Criminal Procedure challenging his further detention inasmuch as he claims that he has undergone the period of 7 years sentence which was awarded to him on 19.12.1983 as a consequence of his conviction under Section 304 PartI of the Indian Penal Code.

The facts, as alleged in the petition show that the petitioner was arrested on 10.5.1982 for an offence under Section 302 of the Indian Penal Code and he was tried by the Additional Sessions Judge, Bathinda and he was convicted on 19.12.1983. His appeal was dismissed by this Court on 15.1.1986. Aggrieved against it, he attempted a Special Leave Petition in the Supreme Court but ultimately, it was dismissed. It appears that this petitioner was required by the Central Bureau of Intelligence while on bail by means of alleged fake orders of the Supreme Court in respect of which the First Information Report No. RC10(S)/91/CHD dated 31.5.1993 was registered for offences under Sections 120B read with Sections 420, 467, 468 and 471 of the Indian Penal Code. In the second case, no challan has been presented against this petitioner but he remained in judicial custody from 5.12.1992 to 2.6.1994. The present petition has mainly been moved with the prayer that the period spent in judicial custody by the petitioner in this offshoot should be counted and taken into consideration while the order of sentence and conviction for offence under Section 304 PartI of the Indian Penal Code was in force.

Though in a reply filed by the State of Punjab, it was controverted and averred that the petitioner was not entitled to the benefit of the period spent by the petitioner in judicial custody in the second case. However, it is not disputed that no challan whatsoever has been presented against the petitioner so far in the second case.

On behalf of the petitioner, the attention has been invited to Onkar Singh v. Police Officers, Prashasan and others, 1979(2) Cr.L.J. 1098, wherein a Division Bench of the Allahabad High Court held that if the petitioner was arrested on the basis of the warrants issued in connection with another case, the petitioner was entitled to get the period spent by him in jail counted as the petitioner could not be deemed to be in jail with a sentence against him and not serving out that sentence. In the case now in hand, the period spent by the petitioner in the second case in respect of which no challan has ever been presented so far is to be considered and should be set off by the respondentState. The conclusion is that the present petition succeeds and the Central Jail Authorities Bhatinda should work out the period indicated above which the petitioner spent in judicial custody to complete the period of 7 years sentence awarded to him and release the petitioner accordingly.