BIDDIKA JAGANNADHAM Vs. SUPERINTENDENT CENTRAL JAIL VISAKHAPATNAM

JUDGEMENT

(1.) THESE three writ petitions raise a common question. It is sufficient if we refer to the facts of the first case. The petitioner in W.P. No. 3711 of 1974 was convicted by the learned Second Additional Sessions Judge of Visakhapatnam of offences under section 147, Indian Penal Code and section 17 (1) of the Criminal Law Amendment Act, and sentenced to undergo rigorous imprisonment for a period of two years and six months respectively, the sentences to run concurrently. From the counter-affidavit filed in the case, we find that the petitioner was in jail custody for a period of 360 days until the date of conviction. After conviction which was on 26th April, 1971 he was in jail till 23rd June, 1971, when he was released on bail. The Appeal preferred by him to the High Court was dismissed on 4th October, 1972. He was rear-rested on 19th April, 1973 and he has been in continuous custody since then. It is stated in the counter-affidavit that after the conviction on 26th April, 1971 the petitioner has so far been in prison for 592 days. If the period of 592 days served by the petitioner after conviction alone is taken into account, the petitioner is not entitled to be straightaway released from prison as he has not completed the term of two years to which he was sentenced. But it is urged on behalf of the petitioner that the period of detention undergone by him during the investigation, enquiry and trial should also be taken into account and set-off against the term of imprisonment imposed on him under section 428 of the Code of Criminal Procedure, 1973. It is claimed by the petitioner that though the conviction and sentence was prior to ist April, 1974 the date on which the new Code came into force, he is nevertheless entitled to the benefit of section 428 by reason of the provisions of section 484 (2) (b) of the new Code. This provisions to the extent that it is necessary may be extracted and it is as follows:-

(2.) IN W.P. No. 5048 of 1974 the total period for which the petitioner has been detained does not come to four years, the period to which he has been sentenced Perhaps, with the usual remission etc., he will be entitled to be released. But we have not get the actual figures before us. We are, therefore, unable to allow the writ petition straightaway and direct the prisoner to be set at liberty. We are confident that the prison authorities will deal with the prisoner and give him the benefit of the set-off in the light of our judgment. W.P. No. 5048 of 1974 is dismissed. Advocate's fee Rs. 250. W. P.No.3711 and 5138 of 1974 allowed; W.P.No.5048 of 1974 dismissed.