CHELLA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an application -in -revision filed by Chella alias Chela Ram against an order of the Additional Sessions Judge No. 2, Jodhpur, dated 8th May, 1976, whereby setting off of the period of detention undergone by the petitioner during the investigation, inquiry or trial of each of the three cases against the term of imprisonment imposed on him on conviction in the same case was refused and the reference made by the Superintendent, Central Jail, Jodhpur, on the question of extending benefit under Section 428, Criminal P.C. (new) to each case separately was answered accordingly.

(2.) THE relevant facts giving rise to this revision -petition may be briefly stated as follows: Chella petitioner was tried by the Additional Sessions Judge, Jodhpur, in three sessions cases Nos. 3 of 1968, 4 of 1968 and 5 of 1968 for offences punishable under Sections 392, 394, 397, 380, I.P.C. The petitioner was convicted by the Additional Sessions Judge No. 2, Jodhpur, in Sessions Case No. 4 of 1968 on 27th November, 1970, under Section 394 read with Section 398, I.P.C and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/ -, in default of payment of fine to further suffer rigorous imprisonment for four months. Thereafter the Additional Sessions Judge No. 2 convicted the petitioner under Sections 392/397, I.P.C. and 394/ 397, I.P.C. in Sessions Case No. 3 of 1968 on 18 -1 -1971 and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/ -, in default of payment of fine to undergo rigorous imprisonment for four months. The learned Additional Sessions Judge, however, ordered, that the sentence of seven years' rigorous imprisonment passed in this Sessions Case (3 of 1968) shall run concurrently with the sentence of imprisonment awarded to him in Sessions Case No. 4 of 1968. In the third Sessiqns Case (No. 5 of 1968) also the petitioner was convicted under Section 394 read with Section 397, I.P.C. on 30 -1 -1971 and sentenced to undergo rigorous imprisonment for seven years but the sentence passed in this case was not ordered to run concurrently with the sentence passed against him in the previous two sessions cases, i.e. Nos. 3/1968 and 4/1968. The petitioner filed separate jail appeals in the High Court against his conviction and sentence in each case but his appeals were dismissed by this Court. The period of detention undergone by the petitioner during investigation, inquiry or trial of each case is mentioned in the letter of the Superintendent, Central Jail, Jodhpur, addressed to the Additional Sessions Judge No. 2, Jodhpur, No. Jud./Pratham/2211 dated 5 -4 -1976. It is as follows: Sessions Date of Period ofCase No. decision detention.1. 4/1968 27 -11 -1970. 21 -4 -67 to 21 -3 -68.30 -5 -68 to 26 -11 -70.2. 3/1968 18 -1 -1971. 5 -4 -67 to 21 -3 -68.30 -5 -68 to 18 -1 -71.3. 5/1968 30 -1 -1971. 30 -5 -68 to 30 -1 -71.The Superintendent, Central IJail, Jodhpur, vide his referred to above letter had made a reference to the Additional Sessions Judge No. 2, Jodhpur, on the question whether the petitioner was entitled to the benefit of the provisions of Section 428, Criminal P. C (new) in each case in spite of the fact that the period of detention is almost common to a considerable extent in all the three cases. The Additional Sessions Judge No. 2 applied his mind to the legal question and passed the impugned order, the concluding portion of which is reproduced below in his own words: Giving him the benefit in three cases would amount to entitling him to undergo shorter term of sentence in at least two cases, which, in my opinion, cannot be permitted. Considering these facts I am of the opinion that where an accused is under detention in more than one case simultaneously and there is a common period of detention, he is entitled to a set off of that common period of detention, only against the sentence of one case and not in each case separately under Section 428, Criminal P.C. Let the Jailor be intimated accordingly. The petitioner lias now challenged this order of the Additional Sessions Judge No. 2, Jodhpur, before me by way of this revision -petition as stated above.

(3.) I have heard the arguments of the learned Counsel and perused the records of the three sessions cases in which the petitioner was convicted and sentenced to imprisonment by the Additional Sessions Judge No. 2, Jodhpur, At the outset I may observe that Section 428, Criminal P.C. is a new provision, which provides for the setting off of the period of detention, if any, undergone by an accused person during investigation, inquiry or trial of the same case in which, upon conviction, he has been sentenced to imprisonment for a term. Their Lordships of the Supreme Court have held in clear and definite terms in the case of B.P. Andre v. Supdt. Central Jail, Tihar, 1975 Cri LJ 182 : AIR 1975 SC 164, that the accused person who has been convicted and sentenced to a term of imprisonment and is still serving his sentence at the date of coming into force of the new Code of Criminal Procedure, would be entitled to claim set off or adjustment under Section 428 of. the Criminal Procedure Code, 1973 of the period of detention, if any, undergone by him during investigation, inquiry or trial of the case and his liability to undergo imprisonment on conviction shall be restricted to the remainder of the term of imprisonment awarded to him. On the basis of the aforesaid decision of the Supreme Court, it may be safely held that the period of detention undergone by the petitioner during investigation, inquiry or trial of each case should be set off against the term of imprisonment imposed on him in that case and his liability should be restricted to the remainder of the term of imprisonment. In this view of the matter, the petitioner is entitled to claim set off or adjustment of the period of Ms detention undergone during the investigation, inquiry or trial of each of the three Cases Nos. 3/1968, 4/ 1968 and 5/1968 irrespective of the fact whether such period of detention is or is not common to a considerable extent in all the three cases. To interpret the provisions of Section 428, new Criminal P.C. in the manner 'Suggested by the Additional Sessions Judge No. 2, Jodhpur, would result in grave injustice to the petitioner.