GHULAM MUSTAFA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is a Habeas Corpus Petition primarily on the ground that the petitioner has already undergone the sentence awarded to him i the set off to which the petitioner is entitled under Sec. 428 Cr. P.C. in respect of the period of pre-trial detention is taken into consideration.

(2.) First the facts which are the se. The petitioner as per his own case was arrested on 1/10/1981 in connection with a case registered against him under Sec. 395, 397, 120-B, 402/420 IPC and he remained in jail until he was enlarged on bail on 23/02/1982 in Sessions case No. 7/1982. The pre-trial detention period of the petitioner in the aforesaid case was as under - From 1/10/1981 = 4 months 19 daysto 23/02/1982 After the release on bail the petitioner was arrested in some other case under Sec. 307 IPC on 19/06/1983 and remained in jail till 20/06/1983 in sessions case No. 34/1984 and therefore the period of his detention in that case was 12 months and 1 day. So far as the first case referred to above is concerned, the petitioner the maximum period of his sentence under Sec. 395 IPC was 6 years and the sentence on all counts as ordered to run concurrently. So far as the sentence in lieu of payment of fine is concerned, no set off under Sec. 428 Cr. P.C. is permissible. The case of the petitioner is that he has deposited the fine on various counts. Though in the original petition no such averment was made that, he deposited the fine but such an averment was made by the petitioner in the rejoinder that he deposited the fine on 26/04/1993. Learned counsel has shown to us a receipt for depositing the fine and it can therefore be said that the fine has been depositing on 26/04/1993.

(3.) So far as the sessions case No. 34/1984 is concerned, the petitioner was sentenced on 20/06/1984 and not a word has been stated in the habeas corpus petition what was the sentence awarded to him in that case. In the rejoinder filed by the petitioner it has been stated in para 2 thereof that the FIR of that case was under Sec. 307 IPC and the petitioner in face was convicted and sentenced under Sec. 324, 323/34 IPC. Thus, in the rejoinder the petitioner has come out with a different case than in para 2 of the writ petition. As per the case of the petitioner in the rejoinder he was sentenced to two years' rigorous imprisonment under Sec. 324 IPC and to six months rigorous imprisonment and both the sentences were ordered to run concurrently. It would have been better if the learned counsel would have furnished even photostat copy or typed copy of the judgment, more so when contrary stand has been taken in the writ petition as well as rejoinder. Be that as it may, learned counsel has shown us a typed copy of the judgment and it appears from a perusal of the aforesaid typed copy of the judgment that whatever has been stated in the rejoinder is correct and the maximum sentence awarded to the petitioner under Sec. 395 IPC is two years.