MRITYUNJOY BOSE Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Section 491 of the Code of Criminal Procedure, hereinafter called the Code, for directing that the petitioner should be set at liberty as he is being illegally detained in jail even though he has, according to him served out the sentences imposed upon him in Sessions Trial No. 197 of 1960. In that trial the learned Assistant Sessions Judge II. Patna had convicted the petitioner under Section 420/511, Indian Penal Code, am] sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-, in default to undergo further rigorous imprisonment for a period of six months only. The petitioner was also convicted in the said trial under Section 471/511. Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 250/-. in default "further rigorous imprisonment for another six months" The further direction by the trial Court was ''the sentences of imprisonment are to run concurrently" The petitioner filed Criminal Appeal No. 473 of 1962 in this Court which was disposed of on the 24th of February. 1964. His convictions were maintained The sentence of five years rigorous imprisonment imposed upon him for his conviction under Section 420/511. Indian P. C. was reduced therefor which such Court is consisting of this modification in sentence the appeal was dismissed

(2.) The petitioner's contention is that in view of the direction of the trial Court that the sentences of imprisonment were to run concurrently a direction which was not interfered with in any way by the High Court at the time of disposal of the criminal appeal--the petitioner ought to have been detained in Jail on the basis that his total period of imprisonment which was five years and six months only i.e., the sentence of imprisonment of six months imposed upon him in default of the payment of fine of Rs. 250/- for each of the convictions recorded by the trial Court should also run concurrently In our opinion the contention is not sound and cannot be accepted. Section 35 (1) of the Code says -

(3.) In the result there is no merit in this application. It is accordingly dismissed.