KISHAN DWIVEDI Vs. STATE OF U P

JUDGEMENT

(1.) THIS petition has been filed for quashing the order dated 20.4.2011 passed by Addl. Chief Judicial Magistrate, Court No.5, Unnao in Criminal Case No.433 of 2009, State Vs. Kishan Dwivedi. A prayer has also been made to allow the application dated 16.4.2011 filed by the petitioner claiming benefit of set-off.

(2.) THE facts giving rise to the present petition are that an FIR was lodged against the petitioner on 21.5.2004 at Case Crime No.176 of 2004 under Sections 408, 409, 410, 413, 415, 418, 420, 464, 465, 468, 471 & 120-B IPC. THE petitioner was detained in jail since 25.11.2003. As many as six cases were registered against the petitioner. Although the petitioner was in jail but warrant-B was not served upon him and the investigation remained in process. THE Investigating Officer did not interrogate the petitioner and neither took him into custody on the basis of warrant B. On 24.8.2006, a report was submitted by the concerned police station in the court of Chief Judicial Magistrate, Unnao informing therein that the petitioner is named in the FIR and the investigation has been transferred to Zonal SIS, Lucknow. In spite of the report of the concerned police station, the petitioner was not taken into custody in Case Crime No.176 of 2004. As such, he moved an application on 6.9.2006 for being taken into custody in Case Crime No.176 of 2004. THE investigation continued for about three years and despite the application of the petitioner, warrant-B could not be prepared and served upon the petitioner on 28.6.2007 in Case Crime No.176 of 2004. Trial in Case Crime No.176 of 2004 commenced and the petitioner confessed his guilt and upon his confession, he has been convicted under Sections 408, 418, 420 & 468 IPC and sentenced to a maximum period of five years rigorous imprisonment with fine stipulations vide judgment and conviction dated 16.4.2011, which has not been challenged by the State Government or by the complainant before any superior court. THE trial court has proceeded to order that all the sentences shall run concurrently. THE petitioner has already served out about seven years' sentence in jail since 21.5.2004 i.e. from the date of commencement of investigation in Case Crime No.176 of 2004 and he has served out about four years nine months sentence from the date of his own application dated 23.8.2006 for submitting himself to the trial court in Case Crime No.176 of 2004. THE petitioner moved an application on 16.4.2011 before the trial court for setting off his period of detention spent during investigation against maximum sentence awarded to him. THE application dated 16.4.2011 for setting off his detention during investigation has been rejected vide order dated 20.4.2011. Hence this petition.

(3.) AGAINST the petitioner six FIRs were lodged. He was taken into custody on 25.11.2003. After being taken into custody, investigation also proceeded in Case Crime No.176 of 2004 at District Unnao. The FIR itself disclosed that the petitioner was in detention in Kanpur Jail but in spite of that warrant-B was not procured and neither any effort was made by the Investigating Officer. A report was also submitted in the court of Chief Judicial Magistrate pointing out that the petitioner is named in the FIR and investigation was transferred to Zonal SIS, Lucknow. In spite of the report of the concerned police station, the petitioner was not taken into custody through warrant-B. All the FIRs were lodged simultaneously and it is to be noted that they were in respect of the same series of transaction. The petitioner made several applications for taking him into custody on the basis of warrant-B but his application was never allowed. First application was moved by him on 6.9.2006 for being taken into custody on the basis of warrant-B in Case Crime No.176 of 2004. Investigation continued for about three years. The Investigating Officer did not procure warrant-B. It seems that the Investigating Officer was totally negligent although it was in his knowledge that the petitioner was in custody. Sentence was awarded at Kanpur as well as at Unnao on the basis of confession.