MAMOODKHAN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) By this petition under S.482, Cr.P.C. the petitioner has prayed for a direction to the effect that the Addl. Sessions Judge, Shajapur, be directed not to send the petitioner to jail as he has already undergone more than six months' imprisonment as an under-trial prisoner. The petitioner has also made an application for interim relief, praying for stay of the order dated 4-7-1987, passed by the 2nd Addl. Sessions Judge, Shajapur. It was in view of this interim prayer that we thought it proper to hear the petition and requested the learned Government Advocate to take notice, to which he readily agreed. Shri Jaisingh, learned counsel for the petitioner, and Shri Surjeetsingh, learned , Government Advocate for the State respondent are heard.

(2.) Short facts are that the petitioner Mamoodkhan was convicted by the trial Court for offences punishable under Ss. 147, 302/149, 326/149, 324/149 and S. 323,I.P.C. The petitioner preferred an appeal before this Court, being Criminal Appeal No. 66 of 1984, which was decided on 4-3-1987 whereby the petitioner was acquitted of all the charges but his conviction and sentence under S. 323, I.P.C. as awarded by the trial Court - six months, rigorous imprisonment was maintained. While passing the judgment this Court directed that if the petitioner was on bail, he shall surrender to the bail-bonds in order to under go the term of imprisonment.

(3.) The petitioner moved the trial Court, praying that as he had already remained in custody for 200 days, the same period should be adjusted towards the imprisonment as awarded by the trial Court, and maintained by the High Court in appeal. The trial Court, placing reliance on a decision of the Calcutta High Court in Suprovat Bose v. State, 1976 CriLJ 313, dismissed the application holding that the relief under S. 428, Cr.P.C. is neither consequential nor incidental to the appellate judgment. The trial Court was of the view that it had no power to grant such a relief.