BHABANI PRASAD CHANDRA Vs. KING

JUDGEMENT

(1.) This is an application by the petitioner under the provisions of Section 491, Criminal P.C. In the petition he prayed that a rule may be issued upon the District Magistrate to show cause why the petitioner should not be set at liberty at once.

(2.) A few facts have to be stated in order to appreciate the purpose of this application and the point raised on behalf of the petitioner. The petitioner was convicted on 3-5-1943, by a first class Magistrate, Gaya, for an offence under Secs.411 and 379 read with Section 75, Indian Penal Code. He was sentenced to rigorous imprisonment for two years and a fine of Rs. 300 in default to undergo rigorous imprisonment for six months under Section 411, Indian Penal Code; no separate sentence was passed under Section 379, Indian Penal Code. Against his conviction the petitioner filed an appeal before the Sessions Judge of Gaya, who was pleased to admit the appeal on 13-5-1943, but refused to grant bail. The Sessions Judge delivered his judgment on 21-9-1943, in which he upheld the sentence of two years rigorous imprisonment and the fine of Rs. 300 but was of the view that the said sentence should be under Section 879, Indian Penal Code, rather than under Section 411, Indian Penal Code. He then went on to state in the judgment that the appellant who was in jail must work out his sentence and that the fine must be paid, or the appellant would suffei imprisonment in default as ordered by the trying Magistrate. Against the decision of the Sessions Judge the petitioner moved this Court by filing Criminal Revision No. 1157 of 1943, which appears to have been summarily dismissed by Varma and Reuben JJ on 18-11-1943. The order of this Court was communicated to the Sessions Judge who recorded on it: "Seen. Note result. Copy to D.M. File" and then appended his signature to the note. So far as the Courts were concerned, there was the sentence of two years rigorous imprisonment commencing from 3-6-1943 to be served by the petitioner and in addition whatever sentence he may possibly have to serve in default of payment of fine.

(3.) It should be observed that the petitioner at some time or other was sent to Buxar Jail from where he was transferred to Deoghar Sub Jail. On 29 January 1943 the Superintendent of Deoghar Sub Jail wrote to the Sessions Judge of Gaya a letter in which be informed that Court: From the entries in the Sub-Jail register it appears that one prisoner Bhawani Prasad, Chandra convicted and sentenced to undergo 2 years register imprisonment and fined Rs. 300/-. in default 6 months R.I under Section 411/75, Indian Penal Code by Mr. S.W. Rahman, Magistrate, 1 class Gaya on 3-6-48 was released from this sub-jail by an order of your Court dated 11-12-1943, communicated to this, office through the Superintendent Buxar Central Jail and received here as 23-12-1943. The said order is unfortunately not available in this office at present. Under the circumstances 1 have the honour to request you to the so good as to kindly let me have a copy of the release order for sending a copy of the same to the Senior Dy. Magistrate Gaya, who is pressing for it. To this a report was placed before the Sessions Judge to the effect that no release order was issued by the Sessions Judge against the conviction and the Sentence of the petitioner. The Sessions Judge then, passed the order on 31-1-1945: "Inform accordingly," Accordingly a letter was sent, by the. Sessions Judge of Gaya to the Superintendent Sub-Jail, Santal Parganas, on 7-2-1945, in "Which the latter was informed that the revision application of the petitioner had been dismissed by the High Court, and hence no release order could be issued in respect of the conviction and sentence passed against the petitioner on 8-5-1948, which was the subject-matter of Criminal Appeal No. 144 of 1948 before the Sessions Judge. According to the petition the petitioner was suddenly arrested at Deoghar on 10-11-1947, by the Government railway Police Jagidin in connection with a theft case and that on 10-11-1947, by the Superintendent Sub-Jail informed the Sub-divisional Officer that a case under Section 225(b). Indian Penal Code was pending against the petitioner. The border-sheet of the Magistrate Shows that after various adjournments, the case against" the petitioner" under Section 225(b) was dismissed, and we understand that there was a final report so. Far as the case of theft was concerned.