ORDER
1. This is a Habeas Corpus Petition primarily on the ground that the petitioner has already undergone the sentence awarded to him if 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 these. The petitioner as per his own case was arrested on October 1, 1981 in connection with a case registered against him under Sec. 395,397,120B, 402/420″ IPC and he remained in jail until he Was enlarged on bail on February 23,1982 in Sessions case No. 7/1982. The pre-trial detention period of the petitioner in the aforesaid case was as under–
From October 1 1981
=4months 19days
to February 23, 1982
After the release on bail the petitioner was arrested in some other case under Sec. 307 IPC on June 19, 1983 and remained in jail till June 20, 1984 in sessions case No. 34/1984 and therefore the period of his denetion 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 April 26, 1993. Learned counsel has shown to us a receipt for depositing the fine and it can therefore be said that the fine has been deposited on April 26, 1993.
3. So far as the sessions case No. 34/1984 is concerned, the petitioner was sentenced on June 20, 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 mat whatever has been stated in the rejoinder is correct and the maximum sentence awarded to the petitioner under Sec. 395 IPC is two years.
4. From the above facts it can therefore be said that after his release on bail in sessions case No. 7/82 under Sec. 395, 397 and other sections of the Indian Penal Code the petitioner remained free and was arrested in another case under Sec. 307 IPC on June 19, 1983 and continued to remain in detention in that case and thereafter on June 20, 1984 the learned Sessions Judge convicted and sentenced him as aforesaid.
5. The question is as to whether so far as the case No. 7/82 under Sec. 395 and 397 IPC in which the maximum sentence of 6 years’ imprisonment was passed, the petitioner is entitled to set off even the period of detention in other case No. 34/1984 despite the fact that he was arrested in the other case after his release on bail in the previous case. In other words, the question is as to whether it can be said that the accused petitioner was in detention in Sessions case No. 7/82 during the period from June 19, 1983 to June 20, 1984 and therefore he is entitled to set off the said period from the sentence awarded?. A perusal of Sec. 428 Cr. P.C. is necessary and the said section reads as under
428. Period of detention undergone by the accused to be set off against the sentence of imprisonment Where an accused persons has, on conviction, been sentenced to imprisonment for a term not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction shall be set off against the term of imprisonment imposed on him on such conviction, and he liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
A bare reading of the aforesaid extracted Section 428 Cr. P.C. will show the said section is attracted only after conviction and the accused person is entitled to set off the period of detention undergone by him during the period of investigation, inquiry or trial of the same case before the date of conviction. So far as the accused-petitioner is concerned, he had been released on bail in Sessions Case No. 7/82 on February 23, 1982 and therefore iit cannot be said that during the period thereafter the accused petitioner was in detention during investigation, inquiry of trial of the same case. The matter would have been different if the accused petitioner was accused in more than one case and he would have continued to be in detention during the investigation, inquiry or trial, he could be entitled to set off in all cases, but in a case where he was released on bail and thereafter commits another offence and is arrested and is in detention in other case, it cannot be said that he was in detentionn during investigation, inquiry or trial of the same case. In other words, the period of investigation, inquiry or trial in other case after the accused was released on bail in the earlier case cannot be said to be the period of detention in the same case and cannot be entitled to set off the period after he had been released on bail. Learned counsel for the petitioner referred to two authorities in support of contention that the accused-petitioner is entitled to set off despite the fact that he has been released oniail in the earlier case. The first case which has been relied upon by the learned counsel for the petitioner is K. C. Das v. State 1979 Cr LJ 362. It will be seen from the illustration given by the learned Judges in that case and they considered the question that suppose the accused is arrested on January 1, 1977 and he is arrested in another case on January 1,1978 while the trial of the first case is proceeding. In the first case he is convicted and sentenced on January 31, 1978 to two years’ imprisonment. Under Section 428 Cr. P.C. the accused will be entitled to set off his period of detention from January 1, 1977 to January 31, 1978 against the term of imprisonment imposed on him in the first case. The learned Judges said that suppose in the second case the accused is convicted on March 31, 1979 and sentenced to three years’ imprisonment, the accused would be entitled to set off the pre-trial detention in the second case as well. In view of the learned Judges the accused can claim that the period of detention from January 1,1977 to March 31,1978 besetoff against the sentence of imprisonment imposed on him in the second case and not upto January 31, 1978. It will be seen that the learned Judges were not dealing with a case where the accused was arrested after he had been released on bail in the earlier case. Therefore, so far as the present case is concerned, it does not apply on the facts of this case and as said earlier we are of the opinion that if the accused after his release on bail in the earlier case is arrested in another case, it can be said that he remained in detention during investigation, inquiry or trial of the other case and not in the same case and therefore he will not be entitled to set off the period of his detention in the other case against the perioid of conviction and sentence in the earlier case. The other case on which reliance has been placed by the learned counsel for the petitioner is Chella alias Chela Ram v. State of Rajasthan, 1976 RLW 548 : (1977 Cri LJ 589). From that case it appears that the learned Judge was dealing with a case where the accused had been released on bail and thereafter he was arrested. That case does not apply to the facts of this case.
6. We are of the opinion that under Sec. 428 Cr. P.C. the words used ‘same case’ are of significance and if an accused person remains in detention in more than one cases he will be entitled to set off the period of his detention but in a case where the accused is released on bail and thereafter he is arrested in another case and remains in detention in the other case, he will not be entitled to set off the period of his detention during investigation, inquiry or trial of the subsequent case, so far as his period of detention in first case is concerned.
7. With the view which we have taken, it cannot be said that the accused has already undergone the sentence awarded to him and he is not entitled to set off the pre-detention period during investigation, inquiry or trial of the case No. 34/ 84, so far as sessions case No. 7/82 is concerned.
8. Consequently, the Habeas Corpus petition is dismissed.