SHAMBHU NATH SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ petition on behalf of the sole petitioner has been filed for a direction upon the respondents to release him from custody forthwith. The petitioner has been convicted and sentenced to various terms of imprisonment in as many as seven cases. According to him, the entire period of custody from the date of first remand should be counted for the purpose of set-off under Section 428 of the Criminal Procedure Code, and so counted, it would appear that he has served sentence in different cases and therefore, his further custody is illegal and he should be released forthwith. According to the respondents where a person is convicted and sentenced to imprisonment in more than one case on different dates, the period of custody for the purpose of set-off can be reckoned upto the date of first conviction and thereafter, he has to be treated as convict entitled to remission under the different provisions of the Jail Manual. The State Government has taken a general decision to this effect vide letter No. 8913/Jail dated 4-8-1975 of the Home (Jail) Department.

(2.) The only point for consideration is whether the entire period of custody including the period undergone as a convict can be counted for the purpose of set-off under Section 428 Cr. PC. Section 428 Cr. PC runs as under :

(3.) The plea of the State, it would appear, is in consonance with the decision of the Supreme Court in the case of Raghubir Singh v. State of Haryana, (1984) 4 SCC 348, wherein in no unmistakable terms a two Judge Bench of the Court held, construing the scope of Section 428 Cr. PC, that the period elapsed in inquiry or trial in one case while undergoing sentence of imprisonment in an earlier case cannot be set-off against the term of imprisonment imposed in the latter case. The facts of that case were that the petitioner was convicted and sentenced to a term of imprisonment by the Sessions Court, Karnal on 1-2-1980. He was in judicial custody from 11-1-1980 in connection with another case before the Metropolitan Magistrate, Delhi which ended in his conviction and sentence for a term of imprisonment on 16-2-1981. There was no order that the subsequent sentence would run concurrently. The petitioner claimed that the entire period of his detention from 11-1-1980 to 16-2-1981 should be set-off against the sentence of imprisonment imposed by the Metropolitan Magistrate. The stand of the State was that the petitioner was entitled to set-off under Section 428 Cr. PC only the period between 11-1-1980 and 1-2-1980 when he was convicted and sentenced by the Karnal Court, against the sentence imposed by the Delhi Court. Upholding the stand of the State and rejecting that of the petitioner the Supreme Court held that an accused cannot claim double benefit under Section 428 i.e. to count the same period as part of the period of imprisonment imposed for committing the former offence and also set-off against the period of imprisonment imposed for committing the latter offence as well. If a person is undergoing the sentence of imprisonment imposed by a Court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry or trial should be set-off against the sentence of imprisonment to be imposed in the latter case even though he was under detention during such period. In such a case the period of imprisonment is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence.