NARAYAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of instant petition, petitioner seeks direction to release him giving set-off under Sec. 422 Cr.PC. considering his actual date of custody from the date of his arrest in FIR Case No. 3/1998, Police Station, Nathdwara.

(2.) It is averred that the petitioner was arrested on 5.2.1998 in connection with FIR No. 3/1998 for the offence u/ss. 457 and 380 IPC. At that time, he was already in the custody in connection with FIR Case No. 55/1998. The learned Additional Nathdwara vide judgment dated 17.7.2001 convicted him for the offence u/s. 411 Penal Code and sentenced him to ten months' rigorous imprisonment and to pay a fine of Rs. 200.00 and in default, to further undergo ten days' R.I. The appeal against the said judgment was dismissed by the court of learned Additional Sessions Judge, Nathdwara by his order dated 9.10.2001. It is further relevant to state that as already referred, he was in custody in FIR Case No. 55/1998 in connection with a case u/s. 302/149 IPC. In the said case, he was convicted for the offence u/s. 302/149 Penal Code by judgment dated 31.8 1998. However, he has been acquitted by this Court by its judgment dated 27.11.2003 rendered in D.S. Criminal Appeal No. 574/1998 But he has not been released as he is required to undergo the sentence of ten months' R.I. As awarded by the ACM, Nathdwara on 17.7.2001. In view of the provisions of Sec. 428 Crimial P.C., the period of imprisonment undergone by an accused as an under trial during investigation, inquiry or trial of a particular case irrespective of whether it was in connection with the very case or in any other case can be set off against the sentence of imprisonment imposed on conviction in that particular case. The said view has been taken by the Apex Court in State of Maharashtra Vs. Nazakat Ali, reported in 2001 SCC (Cri.) 1106 .

(3.) Consequently, the petition is allowed. It is directed that the custody of the petitioner in Criminal Regular case No. 127/1998 (FIR No. 3/98), Police Station. Nathdwara be considered from the date of his actual custody i.e. 5.2.1998. The period undergone under investigation and trial in the FIR Case No. 3/1998 be computed as period under custody and the sentence awarded in Criminal Case No. 127/1998. Petition Allowed - Custody in FIR Case No. 31 of 1998 Set off Against Sentence in Criminal Case No. 127 of 1998.