THIRUMATHI KALPAGAM Vs. THE SUPERINTENDENT, CENTRAL PRISON, MADRAS

JUDGEMENT

(1.) THE petitioner, one Tmt. Kalpagam, has filed this writ petition for the issue of a writ of Habeas Corpus directing the Superintendent, Central Prison, Madras 3, to produce before this Court her husband, Thiru Harihara subramanian, alias Hariharan, alias Subramanian (convict No. 4005) (hereinafter referred to as Hariharan) and ordering him to be set at liberty on the ground that he is now illegally detained in the Central Prison beyond the period of imprisonment awarded to him.

(2.) IN support of her prayer, she has filed an affidavit with the following contentions -The petitioner's husband, Hariharan, was arrested on 23rd February 1975 by the Police on the allegation that he had cheated various persons at different places promising them to get jobs. In view of the territorial jurisdiction, the different cases filed against him were tried separately by different courts and he was convicted on plea of guilt and sentenced to various and varied terms of imprisonment. According to her, her husband was awarded imprisonment for two years in C.C. No. 93 of 1975 on the file of the Judicial First Class Magistrate, Madurai, by his judgment, d. 12th May 1975 and a similar term of two years rigorous imprisonment was awarded in C.C. 1019 of 1975 by the Judicial First Class Magistrate No. 1, Salem, by his judgment d. 25th February 1976. He was also sentenced to undergo imprisonment for one year by the Chief Judicial Magistrate, Pondicherry in C.C. 131 of 1976 on his file by his judgment, d. 12th March 1976. Again, he was convicted and sentenced to undergo imprisonment for three years in C.C. 191 of 1976 on the file of the Sub Divisional Judicial Magistrate, Villupuram by his judgment d. 9th July 1976. He was convicted and sentenced to imprisonment for two years by the II Metropolitan Magistrate, Bangalore, which term was reduced to one year by the II Additional Sessions Judge, Bangalore in C.A. No. 31 of 1977 on his file by judgment, d. 21st February 1977. She would state that all the above sentences were ordered to run concurrently with the sentence imposed in C.C. No. 93 of 1975 by the Judicial First Class Magistrate, Madurai and therefore, in view of S. 428, Crl. P.C., 1973, her husband should have been released by now and the custody of her husband now in prison is illegal.

(3.) THE respondent, viz., the Superintendent of Central Prison, Madras has filed a counter resisting the claim made by the petitioner. He states that from 12th May 1975 the petitioner's, husband is undergoing imprisonment consequent on his conviction in C.C. No. 93 of 1975 and that the prisoner was produced under production warrant before various courts in the respective cases referred to by the petitioner in her affidavit and consequently he cannot claim the benefit of set off under S. 428, Crl.P.C, after 12th May 1975 in all the subsequent cases since during the said period he was undergoing imprisonment as a convict consequent on the conviction in C.C. 93 of 1975 and that period of imprisonment cannot in any way be treated as a period of detention as contemplated under S. 428. He further submits that he has calculated the period of remission to which the petitioner's husband would be entitled and has arrived at the probable date of his release in accordance with the Tamil Nadu Prison and reformatory Manual, volume II, as on 24th August 1978 and has intimated the same to his lawyer.