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Judgment
Surya Kant, J. (Oral)
In this petition under Section 482 Cr.P.C., prayer has been made by the petitioner to count the custody period undergone by him in the Jail from 21.12.1998 to 4.12.1999 (17 days less than a year) and from 26.8.2000 to 29.11.2003 (three years three months and three days) towards actual sentence undergone in the case arising out of FIR No. 14 dated 8.1.1994 registered under Sections 302, 307, 324, 447, 34 IPC Sadar Hansi, Distt. Hisar.
The petitioner who is stated to have born on 4.4.1977 was arrested on 8.1.1994 in FIR No. 14 dated 8.1.1994 registered under Sections 302, 307, 324, 447/34 IPC, PS Sadar Hansi, Distt. Hisar and was sent to Borstal Jail on 12.1.1994. During trial he was enlarged on bail and was released on 5.3.1994. He was, however, convicted and sentenced to undergo RI for 4 years under Section 307 IPC besides RI for 3 years under Section 324/34 IPC and 3 months under Section 447 IPC, which were ordered to run concurrently vide judgment and order of the trial Court dated 12.6.1996 and 15.6.1996 respectively. The petitioner along with his coaccused filed an appeal bearing Crl. A. No. 349 DB of 1996, titled as Ram Phal and v. State of Haryana, in this Court. It needs mention here that after his conviction by the trial Court the petitioner was taken into custody on 12.6.1996 and he was released on bail pending appeal by this Court on 26.3.1997.
While the petitioner was on bail referred to above, he was involved in a case under Section 392 IPC, PS Uklana, Distt. Hisar in FIR No. 78 dated 30.8.1998 and was arrested. Thereafter the petitioner was released on bail on 4.12.1999 in the FIR No. 78 dated 30.8.1998 under Section 392 IPC, referred to above. The petitioner, however, was again arrested on 26.8.2000 in FIR No. 198 dated 26.8.2000 under Sections 363, 366 and 376 IPC, PS Barwala, Distt. Hisar. Vide judgment and order dated 3.10.2001 and 6.10.2001, respectively the petitioner was convicted and sentenced to undergo RI for 10 years under Section 376 IPC besides other substantive sentences of imprisonment for lesser offences which all were ordered to run concurrently in the above mentioned FIR No. 198 dated 26.8.2000. The petitioner filed Crl. A. No. 82SB of 2002, titled as Raju @ Raj Kumar v. State of Haryana while his coaccused namely Suraj Mal, Surinder and Naresh filed Crl. A. No. 1262SB of 2001. Both these appeals were accepted by this Court on 29.10.2003 whereby the petitioner and his coaccused were acquitted of the charges.
It may be mentioned here that the Crl. A. No. 349DB of 1996, arising out of the murder case registered vide FIR No. 14 dated 8.1.1994 came up for hearing before this Court on 20.12.2003 and was dismissed. The conviction and sentence of the petitioner under Section 307 IPC for 4 years awarded by the trial Court was thus upheld.
Contending that since in different criminal cases, referred to above, the petitioner has actually undergone imprisonment for a period of five years, five months and 18 days as an undertrial/convict, he now cannot be taken into custody to undergo the remaining sentence under Section 307 IPC in FIR No. 14 dated 8.1.1994 that this petition has been filed.
Notice of motion was issued and a reply on behalf of respondents 1 to 3 has been filed. It will be apposite to extract the stand taken on behalf of the respondents in their preliminary submission, a part of which reads as follows :
"1. That as per record of this jail, the petitioner was admitted in Borstal Jail, Hisar as an undertrial prisoner in Case FIR No. 14 dated 8.1.1994 under Sections 302/307/324/447/34 IPC, Police Station Sadar Hansi on 12.1.1994 and was released on bail on 3.3.1994. After this the petitioner was again admitted in this jail on 12.6.1996 in above noted case as an undertrial prisoner and was convicted and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 700/ by the ld. Court of Sessions Judge, Hisar vide ordered dated 15.6.1996 and was released on bail on 23.6.1997 on furnishing sureties before the learned Court of Addl. Chief Judicial Magistrate Hisar in compliance of order of this Hon''ble High Court.
The petitioner was again admitted in this Jail on 25.8.1998 as an undertrial prisoner in ten another cases U/S dacoity, robbery and theft etc., the details of which is as under :
(i) FIR No. 131 dated 16.7.1998 U/s 379 IPC PS Agroha. released on bail on 21.10.1999 vide Ld. JMIC Hisar order No. 38 dated 21.10.1999.
(ii) FIR No. 137/98 U/s 392 IPC PS Agroha Released on bail on 21.10.1999 vide D/JMIC Hisar order No. 37 dated 21.10.1999.
(iii) FIR No. 240 dated 2.8.1998 U/s A. Act. PS Uchana Acquitted on 18.9.1999 by the ld. Court of ASJ Jind.
(iv) FIR No. 422 dated 21.8.1998 U/s 399/402 IPC PS Uchana do
(v) FIR No. 78 dated 1.8.1998 U/s 392 IPC PS Uklana Released on bail on 21.10.1999 vide D/JMIC Hisar order No. 40 dated 21.10.1999.
(vi) FIR No. 422 dated 18.7.1998 U/s 392 IPC PS Narnaund Released on bail on 29.11.1999 vide D/JMIC Hisar order No. 7 dated 29.10.1999.
(vii) FIR No. 230 dated 10.6.1998 U/s 392/34, IPC PS Civil Lines, Hisar., Acquitted on 6.5.1999 by the Ld. Court of ACJM Hisar.
(viii) FIR No. 175 dated 26.6.1998 U/s 394 IPC PS Narnaund Released on bail on 29.11.1999 vide CJM Hisar order No. 8 dated 29.11.1999.
(ix) FIR No. 153 dated 30.7.1998 U/s IPC & A. Act. PS Tosham Acquitted on 22.7.1999 by the Ld. Court of ASJ Bhiwani.
(x) FIR No. 76/98 U/s 395/397 IPC & A. Act. PS City Hansi. Released on bail on 4.12.1999 vide Ld. JMIC Hansi order No. 2032 dated 4.12.1999".
The details of the period during which the petitioner remained imprisoned, as given by him are as follows :
Years Months Days
(i) From 12.6.1996 to 23.6.1997 1 00 11
(ii) From 30.8.1998 to 4.12.1999 1 03 04
(ii) From 26.8.2000 to 5.10.2001 and 6.10.2001 to 29.10.2003 3 02 03
Total actual undergone 5 05 18
The petitioner claims that on a conjoint reading of Sections 427 and 428 Cr.P.C., as interpreted by the Apex Court, the respondents are required to count the entire period of custody of the petitioner towards the sentence in the case arising out of FIR No. 14 dated 8.1.1994 in which he has been convicted under Section 307 IPC and sentenced to undergo RI for four years.
According to the respondents, the petitioner has undergone actual sentence for the following period only in the case FIR No. 14 dated 8.1.1994, in which he has been convicted under Section 307 IPC :
Year Months Days
(i) Undertrial period 12.1.1994 to 3.3.1994 and 12.6.1996 to 14.6.1996. 00 01 22
(ii) Conviction period 15.6.1996 to 23.6.1997 and 5.6.1994 to 20.7.2004. 01 01 23
Total 01 03 15
() Parole availed : 13.3.1997 to 4.4.1997 21 days
Actual Sentence undergone 01 02 24
Thus according to the respondents the petitioner is required to serve four years'' RI.
I have heard Sh. P.C. Chaudhary, learned counsel for the petitioner in support of the prayer made in this petition and Sh. Sanjiv Dahiya, learned Assistant Advocate General and have perused the record.
While interpreting Sections 427 and 428 Cr.P.C., in his favour the learned counsel for the petitioner has placed reliance upon the following judgments :
Onkar Singh v. Police Officers, Prashasan and others, 1979 Crl. L.J. 1098;
Government of Andhra Pradesh and another etc. v. Anne Venkatesware etc. etc., 1977(3) Supreme Court Reports 7;
Baldev Singh v. State of Punjab, 1988(2) Recent Criminal Reports 634; and
State of Maharashtra v. Najakat Alia Mubarak Ali, 2001(2) Recent Criminal Reports 778 (SC).
The object and scope of Section 428 of the Code of Criminal Procedure was considered by the Apex Court in Raghbir Singh v. State of Haryana, 1984(4) SCC 348. Having taken notice of the legislative history that no provision corresponding to Section 428 Cr.P.C., was existing in the repealed Code, their Lordships held that to secure the benefit of Section 428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation, enquiry or trial of the case in which he is later on convicted and sentenced. (emphasis supplied)
The view taken in Raghbir Singh''s case (supra), however, was dissented by their Lordships of the Supreme Court in the case of State of Maharashtra v. Najakat Alia Mubarak Ali (supra) holding as follows :
"18. Reading Section 428 of the Code in the above perspective, the words "of the same case" 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 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 presentence period of detention undergone by him. Nothing more can be made out of the collocation of those words".
There, however, appears to be no ambiguity, especially on reading of the plain language of Section 428 Cr.P.C., that the benefit of set off can be claimed by a convict only when the period of detention was undergone during investigation, enquiry or trial before the date of such conviction. Contrary to the legislative scheme and object of Section 428 Cr.P.C., the petitioner wants to avail the set off benefit for the period spent by him in detention either as an undertrial or as a convict in subsequent cases namely FIR No. 78 dated 30.8.1998 under Section 392 and FIR No. 198 dated 26.8.2000 under Sections 363, 366 and 376 IPC. While the period spent by him in detention in the first was as an undertrial, the period spent by him in the second case w.e.f. 6.10.2001 to 29.10.2003 was as a convict when he was convicted and sentenced to undergo RI for 10 years under Section 376 IPC. The subsequent acquittal of the petitioner by this Court in the rape case might give rise to a cause of action for compensatory claims against the State but the benefit of the period spent by him as a convict in the said case cannot be permitted to be set off for the period of sentence which he is required to undergo as a result of his conviction under Section 307 IPC in FIR No. 14 dated 8.1.1994 vide judgment and order dated 12.6.1996 and 15.6.1996.
In the case of Govt. of Andhra Pradesh and another etc. v. Anne Venkatesware etc. etc. (supra), the Hon''ble Supreme Court had nowhere held that set off contemplated under Section 428 Cr.P.C. can be claimed by a convicted person irrespective of his detention in a subsequent criminal case whether as an undertrial or a convict. The other judgments relied upon by the learned counsel for the petitioner too do not answer the issue directly or indirectly and as such no reliance can be placed upon them as well.
Though having found that the petitioner cannot take shelter behind Sections 427 and 428 Cr.P.C. and thus his petition is liable to be dismissed, it cannot be overlooked that the petitioner appears to have acquired notoriety as a hardcore criminal. The nature of offences allegedly committed by him in which he is facing trial and/or where he has been acquitted or convicted speak largely that he is a threat to a civilized society. The plain language of the Statute, therefore, cannot be stretched to extend its benefit to the petitioner.
Learned counsel for the petitioner has stated that during the pendency of this petition the petitioner has already been taken into custody and is in jail w.e.f. 5.6.2004 to serve the remaining period of his conviction.
In view of the above, and having found no merit in this petition, the same is hereby dismissed.