BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/03/2010 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN AND THE HONOURABLE MR.JUSTICE T.MATHIVANAN H.C.P.(MD) No.174 of 2010 Seenathunnisha .. Petitioner Vs 1.The State of Tamil Nadu, rep. by Secretary to Government, Home Department, Fort St.George, Chennai-9. 2.The Additional Sessions Judge, Fast Track Court, Ramanathapuram. 3.The Superintendent of Police, Central Prison, Madurai. .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India for a direction to produce the body and person of the detenu namely Kamarudeen, Son of Sabeer Maideen, aged 60 years, now unlawfully confined at Central Prison, Madurai before this Court and set him at liberty forthwith and pay compensation to the detenu. !For Petitioner ... Mr.R.Senthilkumar ^For Respondents ... Mr.P.N.Pandidurai, Addl.Public Prosecutor for R1 and R3 :ORDER
(Order of the Court was made by P.MURGESEN, J.)
This Habeas Corpus Petition has been filed for a direction to produce the
body and person of the detenu namely Kamarudeen, Son of Sabeer Maideen, aged 60
years, now unlawfully confined at Central Prison, Madurai before this Court and
set him at liberty forthwith and pay compensation to the detenu.
2. The petitioner is the wife of the detenu Kamarudeen. The detenu
Kamarudeen is the first accused before the Trial Court. He was convicted by the
Trial Court for offence under Section 302 r/w 34 and sentenced to undergo life
imprisonment and to pay a fine of Rs.60,000/- in default of payment of fine
within one month, to undergo 2 years R.I.; convicted under Section 307 IPC and
sentenced to undergo 10 years R.I.; convicted under Section 326 IPC and
sentenced to undergo 5 years R.I.; convicted under Section 324 IPC and sentenced
to undergo 2 years R.I. The sentences were ordered to run concurrently.
3. Challenging the conviction and sentences imposed by the Trial Court, an
appeal has been filed before this Court in Crl.A.(MD)No.941 of 2004, wherein the
conviction of the first accused under Section 302 r/w 34 IPC and the life
imprisonment have been set aside, instead he was convicted under Section 304(I)
IPC and he was sentenced to undergo 7 years R.I.; the fine amount of Rs.60,000/-
imposed on him was retained for this offence; the conviction under Sections 307,
324 and 326 IPC were sustained; the sentence of 10 years for conviction under
Section 307 IPC was modified and he was sentenced to undergo 5 years R.I.; the
sentence imposed for the conviction under Sections 324 and 326 IPC were
confirmed. The sentences were ordered to run concurrently.
4. Now the only grievance of the petitioner is that her husband Kamarudeen
was in the prison for 43 days and that period has to be taken into consideration
for computing the sentence.
5. Learned Additional Public Prosecutor appearing on behalf of the
respondents 1 and 3 has given a tabulation received from Superintendent of
Prisons, Central Prison, Madurai-16, which reads as under:-
“The particulars required for HCP No.174/2010 filed by Seenathunisha, wife
of Kamarudeen Convict No.4288 are furnished as follows:-
The above prisoner was convicted under section 302 read with 34, 307, 326,
324 IPC and sentenced to undergo life with fine Rs.60,000 in default Rigorous
Imprisonment for 2 years, Rigorous for 10 years, Rigorous Imprisonment for 5
years, Rigorous Imprisonment for 2 years (to run concurrently) vide judgment in
S.C. No.109/99 dated 21.5.2004 of Additional Sessions Judge, Ramanathapuram
(Fine Rs.60000 paid at Court). Set off period was not given in the Conviction
Warrant.
On appeal the conviction under section 302 read 34 with modified to 304
part(i) IPC and sentenced to 7 years and sentence under other sections were
confirmed vide Judgment in C.A. 941/04 dated 30.08.2007 of Madurai Bench of
Madras High Court.
Hence Final Date of release falls on 16.04.2010. The calculation for
release is shown below:-
Date of admission : 21.05.2004
(+) 7 year 7
-------------
20.05.2011
(+) Leave 22 days 22
-------------
11.06.2011
(-) Remission earned
420 days 25 1 1
-------------
Final date of release 16.04.2010
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Hence Final Date of Release falls on 16.04.2010 (16th April Two Thousand Ten)”
According to the Additional Public Prosecutor, the final date of release of the
detenu, falls on 16.04.2010.
6. Learned counsel for the petitioner relied on a decision of the Hon’ble
Supreme Court in the case of State of Maharashtra and another v. Najakat Alia
Mubarak Ali, reported in 2001 Supreme Court Cases (Cri) 1106, and stressed that
the period already undergone must be given set off. In the above said case, the
Hon’ble Supreme Court has considered the provision of Section 428 Cr.P.C.
7. The purpose of Section 428 of Cr.P.C. is also for advancing
amelioration to the prisoner. In other words, the period of his being in jail as
an undertrial prisoner would be added as part of the period of imprisonment to
which he is sentenced.
8. There are two requisites postulated in Section 428 of the Code.
(1) During the stage of investigation, enquiry or trial of a particular case the
prisoner should have been in jail at least for a certain period.
(2) He should have been sentenced to a term of imprisonment in that case.
9. If the above two conditions are satisfied then the operative part of
the provision comes into play i.e. if the sentence of imprisonment awarded is
longer than the period of detention undergone by him during the stages of
investigation, enquiry or trial, the convicted person need undergo only the
balance period of imprisonment after deducting the earlier period from the total
period of imprisonment awarded. The words “if any” in the section amplify that
if there is no balance period left after such deduction the convict will be
entitled to be set free from jail, unless he is required in any other case. In
other words, if the convict was in prison, for whatever reason, during the
stages of investigation, enquiry or trial of a particular case and was later
convicted and sentenced to any term of imprisonment in that case the earlier
period of detention undergone by him should be counted as part of the sentence
imposed on him.
10. In Govt. of A.P. v. Anne Venkatesware, reported in 1977 SCC (Cri) 508,
the Hon’ble Supreme Court observed that it is true that the section speaks of
the ‘period of detention’ undergone by an accused person, but it expressly says
that the detention mentioned refers to the detention during the investigation,
enquiry or trial of the case in which the accused person has been convicted. The
section makes it clear that the period of detention which it allows to be set
off against the term of imprisonment imposed on the accused on conviction must
be during the investigation, enquiry or trial in connection with the ‘same case’
in which he has been convicted.
11. In the present case, admittedly the detenu was in the prison for 43
days. Having tested the present case in the light of the above judgment of the
Hon’ble Supreme Court, we have no hesitation to hold that the detenu is entitled
to set off for 43 days.
12. In the result, this Habeas Corpus Petition is allowed and the detenu
is entitled to the benefit of set-off in the sentence awarded to him. If the
detenu had already completed the imprisonment period including the set off
period of 43 days, he may be released from the prison forthwith, unless his
presence is required in connection with any other case.
13. The counsel for the petitioner has submitted that he is not pressing
the claim against the second respondent. Hence the claim of the petitioner
against the second respondent is dismissed.
KM
To
1.The Secretary to Government,
Government of Tamil Nadu,
Home Department, Fort St.George,
Chennai-9.
2.The Additional Sessions Judge,
Fast Track Court,
Ramanathapuram.
3.The Superintendent of Police, Central Prison, Madurai.