NASIM Vs. STATE OF U P

JUDGEMENT

(1.) HARI Swarup, J.:-This petition has been filed under Article 226 of the Constitution for a writ in the nature of habeas corpus. The petitioner, according to him, was arrested in 1972 and was released on bail on 10-7-1975 in connection with a crime which ultimately came to court in the form of Sessions Trial No. 283 of 1973. The petitioner was again arrested on 15-2-1976 in connection wit! another case. The petitioner was involved in some other criminal cases also. All of them ended without a conviction on 9-6-1976. The petitioner was convicted in Sessions Trial No. 283 of 1973 on 28-2-1978 and was sentenced to rigorous imprisonment for five years.

(2.) THE petitioner's contention is that while counting the period of sentence undergone by the petitioner the period between 15-2-1976 to 12-6-1976 had not been counted even though he was entitled to its being set off under Section 428 CrPC. Learned Government Advocate appearing on behalf of the State has contended that the petitioner is not entitled to the ret off of this period because he was arrested and kept in detention during this period not because of the trial of Sessions Trial No. 283 of 1973 in which the petitioner had been granted bail, but in respect of other crimes. According to him such a case is not covered by Section 428 CrPC.

(3.) EVEN on the assumption that the contention of the learned Government Advocate were correct, the petitioner would be entitled to the set off claimed by him because the petitioner was initially arrested in connection with the same case in which he was ultimately convicted and sentenced. He was granted bail in that case but was arrested on 15- 2-1976 in connection with another case. As soon as he was arrested the bail stood cancelled. Hence the petitioner had to be deemed to be in custody even in connection with Sessions Trial No. 283 of 1973 which ultimately ended in his conviction.