PRABHU SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner is in custody in district jail Sitamarhi consequent to his conviction in different cases. By this writ application, he seeks release from custody on the ground that if proper calculation is made then he has served out his sentences and/or there is no case in which he can be retained or detained in custody. The facts are not in dispute. State has filed detailed counter-affidavit. We have heard the learned counsel for the petitioner and Mr. Tej Bahadur Singh, Senior Advocate, learned A.A.G.-VII on behalf of the State and with their consent this writ application is being disposed of at this stage itself.

(2.) The present writ application involves interpretation and application of Sections 427 & 428 of the Code of Criminal Procedure, 1973. The primal question that is to be answered is, whether while a person is serving out a sentence, having been convicted in one case and who has been remanded during the said period of sentence, custody in another case, can the period of remand be taken into consideration for the purposes of set off against the sentence which is then passed upon conviction in the second case as well?

(3.) Learned counsel for the petitioner has principally placed reliance on two Division Bench judgments of this Court in the case of Shambhu Nath Singh v. The State of Bihar and others, 2003 1 PLJR 747 and in the case of Hari Shankar Sah v. The State of Bihar and others, 2003 3 PLJR 322. Both these decisions have, in fact, followed and applied the judgment of the Apex Court in the case of State of Maharashtra v. Najakat alias Mubarak Ali, 2001 6 SCC 311. His submission further would be that the view of the State Government in this regard as apparent from the Circular No. 4987 dated 10th November, 2010 as contained in Annexure-4 to the writ application and Annexure-A to the Court affidavit is correct and the subsequent circular staying its operation issued by Jail Directorate being Circular No. 5659 dated 22nd December, 2010 being Annexure 3/1 to the writ application and Annexure A/1 to the counter-affidavit is wrong and contrary to law.