VISHRAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioners have preferred the instant Writ Petition for a direction to the State Government to release them forthwith because according to them, after counting the total period during which they were undertrial prisoners, they have completed the sentence awarded by this Court.

(2.) Briefly, the facts are that the petitioners were the accused Nos. 2 and 5 respectively in the Sessions Case No. 25 of 1971 before the Additional Sessions Judge, Khamgaon in which 11 persons including the petitioners before us were charged for the offences punishable under Section 302, 325, 449, 323, 341 and 148 read with Section 149 or Section 34 of the Indian Penal Code. The petitioners were arrested for the said offences on 10-12-1970. The Additional Sessions Judge, Khamgaon by his judgment rendered on 24-21972 in the aforesaid sessions case convicted the petitioners for an offence under Section 325 I.P.C. and acquitted them of the other offences with which they were charged. For the offence under Section 325 I.P.C., he sentenced them to 2 years R.I. The petitioners continued in jail after their conviction under Section 325 I.P.C. and after getting certain remissions as per rules they were released in July 1973 by undergoing an actual punishment of 1 year 5 months. It is pertinent to see that the above conviction was prior to the new Criminal Procedure Code (for short, the Cr. P.C.) which came into force with effect from 1-4-1974. Under the old Code, there was no provision like Section 428 of the new Code under which the period during which the accused was in prison as an undertrial prisoner could be counted in calculating his total period of sentence. Therefore, the petitioners did not get the benefit of the period from the date of their arrest i.e. 10-12-1970 till the judgment of the Sessions Judge i.e. 24-2-1972 which is a total period of 1 year 2 months 14 days in calculating their sentence of 2 years under Section 325 I.P.C. under which they were convicted by the Sessions Judge.

(3.) After the judgment of the learned Sessions Judge, the State filed an appeal against the acquittal of the petitioners and others under Section 302 I.P.C. read with Section 34. The said appeal was decided by a common judgment delivered by the Division Bench of this Court on 10-12-1973 alongwith Criminal Reference No. 32 of 1972 and Criminal Revision Application No. 100 of 1972 arising out of the same sessions case. This Court, by its aforesaid judgment, partly accepted the appeal of the State Government. Instead of Section 325 I.P.C., this Court convicted the petitioners under Section 304 Part II read with Section 34 I.P.C. and for the said offence, sentenced them to 4 years R.I. instead of 2 years as awarded by the learned Sessions Judge for the offence under Section 325 IP.C. This Court, then directed by its aforesaid judgment that warrants should be issued against the petitioners for undergoing the sentence under Section 304 Part II awarded by this Court. Although the judgment is rendered on 10-121973, the State Government actually issued the warrants for arrest of the petitioners on 25-1-1989 requiring them to remain present before the Additional Bessions Judge, Khamgaon on 9-2-1989. They were however actually arrested and taken into custody for undergoing the remaining sentence as per the aforesaid judgment of this Court in May 1989. Since then, they are undergoing the sentence for an offence under Section 304 Part II of the I.P.C. as directed by this Court. Feeling aggrieved, the petitioners have preferred the instant Writ Petition.