Prem Prakash and Others vs State of Andhra Pradesh and Another

Madhava Rao, J.—This writ petition is filed of the issue of a writ of habeas corpus to release the petitioners declaring that their further detention is illegal. In support of the said petition an affidavit is filed by one Naresh Kumar Jain, who is the brother-in-law of the 2nd petitioner Ramesh Chand.

The facts are that the petitioners are accused Nos. 1 to 3 in Sessions Cases Nos. 51 of 1980 and 14 of 1981 on the file of the Additional Assistant Sessions Judge, Srikakulam. In both the cases the learned Sessions Judge convicted the petitioners and sentenced each one of them to suffer rigorous imprisonment for a period of seven years and a fine of Rs. 100/- in default to undergo sentence of one month. The learned Sessions Judge also observed that the accused are entitled to setoff the remand period. The judgment was delivered on 27-7-1981. The petitioners are now in jail and they are not undergoing the sentence. Both crimes were committed in the year 1975 and they were registered under S. 392 I.P.C. on 10-6-1975 and investigation was taken up. On the information that he petitioners were arrested on 20-6-1975 by the Inspector of Police, Chikodi, Belgaum District of Karnataka State and some properties were recovered, the Investigating Officers of this State proceeded to that place. One of the victims in Crime No. 85 of 1975 identified the property on 4-7-1975. There was an identification parade held on 5-7-1975 at Haveri in Dharwar District, Karnataka State. The victims in both the crimes identified the petitioners as the culprits. During the course of investigation even the S.I. of Police, Pondur questioned the accused on 26-6-1975 and A-2 is alleged to have made a statement which led to the arrest of A-5 at Delhi. It is stated that they were arrested on 20-6-1975 and by now they have undergone a sentence of more than seven years, but the jail authorities are not releasing them. The petitioners are entitled to setoff. Whether the petitioners are convicted in one case or in many cases, whether simultaneously or at different times, whether it is in one State or in different States such as Karnataka (and A.P.), the total period spent by them in jail should be counted towards their sentences awarded by the Court at Srikakulam. Therefore their detention is illegal and they should be released.

On behalf of the State, a counter-affidavit is filed. In the counter-affidavit the facts stated are admitted except to state that the petitioners were convicted by the Courts in the State of Karnataka and were undergoing various terms of sentences as detailed hereunder :

S.C. No. 107/75 of R.I. 4 years, 2nd Addl. Sessions dated 12-3-1976. Judge, Belgaum : 2. C.C. No. 730/76 of R.I. for 8 months Judl. 1st Class on 25-3-1977. Magistrate, Belgaum 3. S.C. No. 42/75 of R.I. for 7 years on Principal Sessions 30-9-1977. Judge, Belgaum. This sentence shall run concurrently with S.C. No. 107/75 of 2nd Addl. Sessions Judge, Belgaum. According to the counter-affidavit, the following periods are to be setoff as remand period as per the committal warrants. 1. S.C. No. 14/81 From 21-1-1980 to 20-7-1981. 2. S.C. No. 51/80 From 12-8-1980 to 20-7-1981. After the disposal of the cases, the prisoners were transferred back to Central Prison, Belgaum, Karnataka State, to undergo the unexpired portion of the sentence awarded by the Courts of the said State. After expiry of the sentences at the Central Prison. Belgaum, again they have been transferred to Central Prison, Visakapatnam on the following dated to undergo the sentences awarded by the Court in Srikakulam.

Prem Prakash ... 4-11-1981 2. Ramesh Chand ... 16-6-1982 3. Joginder Singh ... 4-11-1981.

Thus the above three petitioners have to complete a total sentence of seven years two months each in this State with effect from the date of expiry of sentence in Karnataka State, as the sentences awarded by the Additional Assistant Sessions Judge, Srikakulam were not ordered to run concurrently with the previous sentence awarded by the Courts in Karnataka State. Hence the sentences are deemed to be consecutive sentences under S. 427(1) Cr.P.C. The Additional Assistant Sessions Judge, Srikakulam has taken all the periods of setoff into consideration at the time of imposing the sentences. It is submitted that the petitioners were arrested on 20-6-1975 and by this time they completed seven years is not correct as the sentences were not directed to run concurrently. Therefore, the petition is devoid of merits.

The learned counsel for the petitioners Sri C. Padmanabha Reddy mainly contended that after the commission of the crimes, the accused were arrested on 20-6-1975 by the Inspector of Police, Chikodi, Belgaum District, Karnataka State and Investigation Officers in the State of Andhra Pradesh received information and they also proceeded to Karnataka State. The interrogated the accused on 26-6-1975, got the property identified on 4-7-1975 and identification parade was also held on 5-7-1975. Thus the accused were available to the authorities, but no steps were taken to conduct any further enquiry or trial in the matter. They are kept only as undertrial prisoners for a long period without any reason whatsoever. It is also contended that even if the petitioners were undergoing sentences in Karnataka State as they were convicted by the Courts in Karnataka, still they are to be treated as undertrial prisoners for the cases pending in Andhra State. Therefore, the setoff has to be given as against the sentences imposed on the petitioners. If the said period is given setoff, the petitioners are to be set at liberty immediately as the date of arrest is 20-6-1975 and the date of conviction is 21-7-1981 i.e., a period of 6 years has elapsed from the date of arrest till the date of conviction, and from the date of conviction till today a period of more than one year and 2 months has passed. The entire conviction is 7 years and one month in default of payment of fine of Rs. 100/-, which period has as per the above calculation lapsed.

The learned Public Prosecutor, on the other hand, submitted that the accused were convicted in the Karnataka State by those Courts in 3 cases, particulars of which have been referred to in the earlier part of his judgment. The total period for which they were convicted there comes to 7 years and 8 months. When they were undergoing sentences they were transferred to the Central Prison, Visakapatnam in 1979-80 for being tried before the Ist Class Magistrate, Cheepurupalli, and in other cases also, and ultimately they were convicted as already noted above. The petitioners 1 and 3 were released on 1-11-1981 in Karnataka State for being transferred to the Central Prison, Visakapatnam, and they were transferred exactly on 4-11-1981. Even if the transit period is taken into account, they were to undergo sentences from 1-11-1981 onwards for a period of seven years and for the 2nd petitioner from 16-6-1982 onwards as he was transferred to the Central Prison on that date. The sentences imposed by the Additional Assistant Sessions Judge, Srikakulam, are not directed to run concurrently and therefore, they should be treated as consecutive sentences. It is also contended that as the accused were undergoing sentences in one case, in the other case pending they cannot be treated as under-trial prisoners.

The learned counsel for the petitioners submitted that if the authorities were not diligent enough in conducting the investigation, inquiry and trial and allowed the accused to remain in jail for a longer time than required, it amounts to negligence on the part of the investigating authorities and therefore, the benefit should be given to the accused by allowing the setoff. In support of the submission, he referred to Government of Andhra Pradesh and Another Vs. Anne Venkatesware and Others, In that case, the Supreme Court was dealing with a case where a person was detained under the provisions of the Preventive Detention Act. The arguments before the Supreme Court was that the period of detention should not be given setoff from the sentences imposed on the accused as that does not fall under the expression ''period of detention'' in S. 428 of the Cri.P.C. While dealing with this position, the Supreme Court observed that the claim in both the appeals is that the period of detention undergone by each appellant under the preventive detention law should be setoff under S. 428 Cr.P.C. against the term of imprisonment imposed on conviction. The argument there was that the expression ''period of detention'' in S. 428 includes detention under the Preventive Detention Act or the Maintenance of Internal Security Act. Dealing with that provision, the Supreme Court observed :

"It is true that the section speaks of the ''period of detention'' undergone by an accused person but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has been convicted. The section makes it clear that the period of detention which it allows to be setoff against the term of imprisonment imposed on the accused on conviction must be during the investigation, enquiry or trial in connection with the same case in which he has been convicted. We therefore agree with the High Court that the period during which the writ petitioners were in preventive detention cannot be setoff u/s 428 against the term of imprisonment imposed on them."

The Supreme Court further proceeded :-

"There is however substance in the other point raised by the writ petitioners regarding the computation of the period during which the writ petitioners in each case should be held to have suffered imprisonment on conviction. In A. V. Rao''s case (W.P. No. 1865/76), he has already in detention under the Preventive Detention Act when the First Information Report was lodged on December 18, 1969 in connection with the Sessions cases. Some of the co-accused in these cases were arrested and produced before the Magistrate for remand on December 19, 1969 but Rao was produced before the Magistrate sometimes in April, 1970 after he was released from preventive detention. It was argued that he also could have been produced before the Magistrate for remand on December 19, 1979 (perhaps mistake for ''1969''). On behalf of the respondent, State of Andhra Pradesh, it was contended that as Rao was already in detention under the Preventive Detention Act, it was not possible to produce him before the Magistrate for remand until the period of preventive detention was over."

The Supreme Court observed :

"We do not find any justification in law for the position taken up by the State. Rao being already in custody, the authorities could have easily produced him before the Magistrate when the First Information Report was lodged. Nothing has been pointed out to us either in the preventive detention law or the Cri.P.C. which can be said to be a bar to such a course. That being so, we think that the claim that the entire period from December 19, 1969 when many of the co-accused were produced before the Magistrate, to April 18, 1970 should be treated as part of the period during which Rao was under detention as an under-trial prisoner, must be accepted as valid. A. V. Rao''s appeal No. 484/76 is allowed to this extent."

Thus, the Supreme Court has categorically held that if the accused though available is not produced before the Magistrate after the F.I.R. was lodged, it has to be shown as to how the State was justified in not producing him. Otherwise, if he was in jail for any other reason and available for production before the Magistrate the period from the date on which he ought to have been produced to the date on which he was produced has to be counted as period of detention and the setoff given.

The learned counsel also referred to another decision in Shabbu and Another Vs. State of U.P. and Another, of a Full Bench. The Full Bench also followed the decision of the Supreme Court and held in para 16 of the report :

"After having thus interpretated S. 428 Cr.P.C. their Lordships, on the basis of the peculiar facts of that case, granted setoff to the appellants for the period of their earlier detention in the preventive detention case for the reason that when they were required in subsequent case they being already under detention could also be detained in connection with these subsequent case. Since the benefit conferred upon them by S. 428 Cr.P.C. was denied due to the negligence of the concerned authorities that benefit in the interest of justice was extended to them with a finding that their detention in the earlier case should also be deemed to be their detention for the purposes of the subsequent cases with effect from the dates when they were wanted in those subsequent cases."

It is unnecessary for us to multiply decision in view of the pronouncement of the Supreme Court, which also has been followed by a Full Bench of the Allahabad High Court.

Coming to the acts of the present case, we have to examine whether the petitioners are entitled to the setoff. The petitioners were arrested on 20-6-1975. The Inspector of Police received information of their arrest and for the first time, he has questioned the petitioners on 26-6-1975, i.e. after six days of their arrest. Thereafter on 4-7-1975 the property was recovered and on 5-7-1975 the petitioners were identified. Thereafter there are no papers placed before the Court as to what happened for a long period in respect of the investigation, and enquiry of the case. From the counter-affidavit it is clear that in S.C. 107/75 the accused were convicted on 12-3-1976 for four years, in C.C. 730/76 they were convicted for 3 months and in S.C. 42/75 they were convicted for seven years on 30-9-1977, i.e. after the conviction in C.C. 730/76. The sentences in S.C. 107/75 and SC 42/75 were directed to run concurrently. Thus, the cases in Karnataka State ended in conviction by 30-9-1977. The petitioners were brought to the Central Prison, Visakapatnam in 1979 and 1980, for production before the Judicial 1st Class Magistrate, Cheepurupalli and the Additional Assistant Sessions Judge, Srikakulam, for being tried in the case pending against them in this State. The petitioners were finally convicted on 21-7-1981 and each of them was sentenced to suffer rigorous imprisonment for seven years and also to pay a fine of Rs. 100/- in default to undergo imprisonment for one month. Now we have to examine as to under what circumstances after the Inspector of Police went to Karnataka State the petitioners were kept as under-trial prisoners and the cases were not tried till 1979 and that it is only in 1981 they were convicted. After their conviction in September, 1977 till the conviction on 21-7-1981, there is no record whatsoever produced before us to show what steps were taken by the concerned authorities in respect of the cases pending against them. They would be clearly deemed to be undertrial prisoners for the cases pending against them. Even assuming that the accused persons were required in some cases pending in some other State like Karnataka, still it cannot be said that they were not under-trial prisoners for purposes of cases pending against them in Andhra State; can it be said that they cease to be under-trial prisoners in respect of cases pending against them in Andhra State ? Nothing is stated or suggested in affidavit as to in what manner the authorities were prevented from prosecuting the accused in the courts in Andhra State. The submission made is that the sentences imposed by the Courts in Andhra State were not directed to run concurrently with those imposed by the Courts in Karnataka State and therefore they should run consecutively. But that is not the point for decision before us. Even if the accused were undergoing the sentences imposed by the Courts in Karnataka State, still certain cases were pending against them in the court in Andhra State. Added to this their conviction by the courts in Karnataka State was in 1977 itself. From 1977 till they were transferred to central Prison, Visakhapatnam, in 1979 and 1980 what were the steps taken by the authorities and why they were not transferred immediately after their conviction in Karnataka State is the matter that requires our consideration. It is well known that for criminal justice speed is essential and matters cannot be kept pending and if there is any justification for keeping the cases pending, the relevant facts must be made available to the court to convince it that the authorities were not at fault. In the absence of any facts made available, it is not possible to decide exactly the period to be set off u/s 428 Cr.P.C. For the first time, the Investigating Officer, according to the affidavit, met the accused on 26-6-1975. The date of their conviction was 27-7-1981. Therefore, that period must be deemed to be the period of detention for purposes of extending the benefit u/s 428 Cr.P.C. We are not inclined to accede to the contention of the learned counsel that the sentence undergone as per the conviction of the Karnataka Courts should be given set off because after their conviction they ceased to be under-trial prisoners. The submission, in other words, if acceded to amounts to directing the sentences imposed by the Courts in Karnataka and Andhra to run concurrently. Having taken this view, we are inclined to give set-off for the period from 26-6-1975, till the date of conviction on 21-7-81. The respondents will accordingly calculate the period of setoff forthwith and act according to law.

Order accordingly.