KULDEEP SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) KULDEEP Singh, petitioner was convicted under Section 376, Indian Penal Code, by the learned Sessions Judge, Ludhiana, by order dated September 22, 1986, and sentenced to life imprisonment and fine of Rs. 100./-, in default of payment of fine he was further sentenced to one month's rigorous imprisonment. The conviction was altered from section 376 to section 376, read with section 511 of the Indian Penal Code, and the sentence was reduced from life imprisonment and fine to detention in Borstal Institute for three years in Criminal Appeal No. 544-DB of 1986, decided on February 22, 1988. The petitioner filed the present writ petition for the issuance of a writ of habeas corpus directing the respondents to release him forthwith.

(2.) THE basis for the prayer is that the petitioner had been an under-trial prisoner from 10.3.1986 to 21.9.1986 (six months, eleven days). He had also been in custody following his conviction by the learned Sessions Judge from 22.9.1986 to 21.2.1988, and thereafter under orders of this Court from 22.2.1988 onwards till date. In addition, the aforesaid period of three years, four months, he had earned 4 months and 25 days, remission under the provisions of Punjab Jail Manual. He had thus undergone in all 3 years, 8 months and 25 days and was thus entitled to be released forthwith.

(3.) LEARNED counsel for the State has drawn my attention to the observation made in the order of the Division Bench dated February 22 1988 while reducing the sentence from life imprisonment to three years detention in Borstal Institute the appellant had been in custody for the last one year and ten months. The point sought to be made is that their lordships aware of the period that the appellant had been in custody in Borstal Institute and, therefore may be deemed to have fixed the period or sentence of three years after excluding the aforesaid period, already spent by the appellant. The provisions of section 428 of the Code of Criminal Procedure are quite categorical. The prisoner is entitled to set off of the period of his custody during investigation or trial of a case towards the sentence, which is ultimately imposed on him. Their lordships of the Division Bench must be deemed to be aware of the provisions of section 428 of the Code of Criminal Procedure. It follows that their lordships intended that the appellant shall be entitled to set off of the period referred to section 428 of the Code, besides remission in accordance with the normal provisions of law. The respondents are therefore, directed to reckon the aforesaid period giving benefit of the period spent during investigation and trial of the case as also the remission earned by the petitioner and take. further necessary action immediately. The petition is allowed. Revision allowed.