ADITYA RAMKRISHNA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Two complaints were registered against petitioner at the Kagdapith Police Station for offences punishable under sec. 408 and other sections of the Indian Penal Code. These complaints were registered separately. In respect of the offences which were the subject-matter of one of the complaints the petitioner was arrested on October 9 1973 and in respect of the offences which were the subject-matter of the other complaint the petitioner was arrested on October 19 1973 Two separate charge-sheets were thereafter filed in the Court of the City Magistrate Tenth Court Ahmedabad against the petitioner and those cases were registered as Criminal Case No. 1542 of 1973 and Criminal Case No. 1596 of 1973. The learned City Magistrate be a common order committed the petitioner to stand trial before the Court of Sessions at Ahmedabad for offences punishable under secs. 408 467 and 471 of the Indian Penal Code. Two Sessions Cases were thereupon registered against the petitioner the said cases being sessions Case No. 15 of 1974 and Sessions Case No. 35 of 1974. It appears that the petitioner was released on bail on December 11 1973 However he was rearrested on December 13 1973 on an application given by his surety for being discharged. The petitioner thereafter remained in Jail as an under-trial prisoner. Sessions Case No. 15 of 1974 was decided on April 5 1974 and the petitioner was convicted in the said case for the offences punishable under secs. 408 419 465 467 458 and sec. 465 read with sec. 471 and sec. 467 read with sec. 471 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for nine months and fine of Rs. 500/in default to rigorous imprisonment for a further period of two months. An appeal being Criminal Appeal No. 407 of 1974 preferred against the said order of conviction and sentence was summarily dismissed by this Court on June 13 1974 In Sessions Case No. 35 of 1974 the petitioner was convicted on April 8 1974 of the same offences for which he was convicted in the other case and a similar sentence was passed upon him. An appeal preferred against the said order of conviction and sentence being Criminal Appeal No. 406 of 1974 was summarily dismissed by this Court on June 13 1974 It would appear from the foregoing that the petitioner remained as an under trial prisoner from October 19 1973 so far as Sessions Case No. 15 of 1974 is concerned and as an under trial prisoner from October 19 1973 so far as Sessions Case No. 35 of 1974 is concerned.

(2.) The petitioner has filed the present petition under Articles 226 and 227 of the Constitution of India praying that in view of the provisions of sec. 428 of the Code of Criminal Procedure 197 the period of detention undergone by him during the investigation and trial and before the date of his conviction should be set-off against the term of imprisonment imposed upon him and that since the said period of detention together with the period of sentence served by him so far in both the cases exceeds the term of imprisonment imposed upon him he ought to be set at liberty forthwith. It might be stated that the Superintendent Ahmedabad Central Prison appears to have declined to consider such request of the petitioner on the ground that the Court convicting the petitioner having failed to give any such direction it was not competent to the jail authorities to grant the set-off claimed by the petitioner.

(3.) The determination of the point raised in this petition depends upon the true construction of sec. 428 of the Code of Criminal Procedure 1973 The said section reads as under :