IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/10/2002
CORAM
THE HONOURABLE MR.JUSTICE V.S.SIRPURKAR
AND
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
H.C.P.NO.2015 OF 2002
Kora Karuppan @
Chinnathambi
aged 43 years
S/o.Chinnapaiyan
Sahadevan Kottai
Perambattu village
Tirupathur Taluk
Vellore District .. Petitioner
-Vs-
Superintendent of Prisons,
Central Prison,
Salem-7. .. Respondent
Prayer: Petition filed under Article 226 of the Constitution of India
for issue of a writ of Habeas Corpus to produce the petitioner from the
Central Prison, Salem, where the petitioner is illegally confined under the
care and custody of the respondent and set him at liberty.
For Petitioner :: Mr.Ramaiah for
M/s.Ram and Ram
For Respondents :: Mr.I.Subramanian, Public
Prosecutor assisted by
Mr.A.Navaneethakrishnan,
Addl.Public Prosecutor.
:ORDER
(Order of the Court was made by V.S.SIRPURKAR, J.)
The question in this case is really concluded by the reported decision
of the Supreme Court in STATE OF MAHARASHTRA AND ANOTHER VS. NAJAKAT ALIA
MUBARAK ALI reported in 2001 SCC (Cri)6 1106, wherein it is held by the
Supreme Court that the words “of the same case” appearing in Section 428 of
Criminal Procedure Code are not to be understood as suggesting that the
set-off is allowable only if the earlier jail life was undergone by him
exclusively for the case in which the sentence is imposed. The Supreme court
has observed thus:
“The period during which the accused was in prison subsequent to the
inception of a particular case, should be credited towards the period of
imprisonment awarded as sentence in that particular case. It is immaterial
that the prisoner was undergoing sentence of imprisonment in another case also
during the said period. The words “of the same case” were used to refer to
the pre-sentence period of detention undergone by him. Nothing more can be
made out of the collocation of those words. It must therefore, be held that
Section 428 of the Code permits the accused to have the period undergone by
him in jail as an under trial prisoner set off against the period of sentence
imposed on him irrespective of whether he was in jail in connection with the
same case during that period.
2. The facts are peculiar in this habeas corpus petition. The
petitioner was undergoing sentence in various crimes. In that way, the
petitioner appears to be a regular jail bird. He points out that he was taken
in custody on 18.5.1998 in respect of four crimes, they being Crime Nos. 2422
of 1992, 2420 of 1992, 2421 of 1991 and 2429 of 1992 and all these crimes were
committed within the jurisdiction of Dharmapuri Town Police Station. It seems
that the petitioner was absconding after these crimes and was apprehended for
the first time on 18.5.1998 and has continued to be inside till all the four
cases based on these crime numbers are decided.
3. It is contended by the petitioner that these four cases in respect
of the aforementioned crime numbers were C.C.Nos.146 of 1996, 143 of 1997, 144
of 1997 and 13 of 1998. They were all tried by Judicial Magistrate of I Class
No.1, Dharmapuri. The petitioner points out that in the first of these cases,
he was sentenced to suffer three years of rigorous imprisonment, while in
others, the same Court awarded the same sentence and directed to be made
concurring with the sentence awarded under C.C.No.146 of 1996. The argument
of the learned counsel is very simple. He says that if that is so, then the
C.C.No.146 of 1 996 becomes the basic case. If for that, the petitioner was
sentenced to suffer three years of rigorous imprisonment, he had already
suffered rigorous imprisonment in between the period 18.5.1998 to 8.4.200 2
when the judgment was declared. He points out that in all the four matters,
the petitioner was in remand during this period of 18.5.1998 to 7.4.2002 and
therefore he had completed three years of sentence period in C.C.No.146 of
1996 and since the sentence in other three cases was ordered to run
concurrently with the sentence in C.C.No.146 of 1996, that would be completion
of the three years period.
4. As against this, the jail authorities point out that while the
petitioner was in remand for C.C.No.146 of 1996, the remand in C.C.Nos.143 of
1997, 144 of 1997 and 13 of 1998 could not be given advantage to him insofar
as the calculations to be made in the light of the language of Section 428 of
Cr.P.C. Precisely that question has been decided by the Supreme Court in the
aforementioned matter by a majority judgment. The Supreme Court has very
precisely held that the accused can suffer incarceration of more than one
sentence at one and the same time. It is not necessary that the period of
incarceration should be calculated separately or should be so calculated as
regards only the first offence and not against the following offences.
5. It is apparent from the record that while the petitioner was in
remand for the offence in C.C.No.146 of 1996, he was also under remand for the
other cases such as C.C.Nos.143 of 1997, 144 of 1997 and 13 of 1998. It is
the admitted position and very fairly admitted by the learned Public
Prosecutor and the Senior Advocate Mr.I.Subramanian that the accused
undoubtedly used to be produced under Prisoner’s Transit Warrant in all the
four cases. Therefore, it is apparent that while the petitioner was suffering
an incarceration on remand in the crime related to C.C.No.146 of 1996, he was
also in remand in the other three cases. When we read the Supreme Court
judgment, it is apparent that the Supreme Court has accepted this principle
that the accused could be in remand for more than one offence. Once this
position is clear, then it is apparent that the petitioner has undergone the
sentence of three years from 18.5.1998 till the judgment was declared in these
cases on 8.4.2002. Under such circumstances, we are of the clear opinion that
the above Supreme Court case applies on all fours.
6. The learned Senior Counsel tried to argue that if the judgments
were to be seen separately of the three Supreme Court judges, it would be
apparent that the judgment of R.P.Sethi,J was a minority judgment taking a
view that the remands would have to be calculated separately for separate
offences and that the accused could not be sought to be in a common remand for
more than one offence. The learned counsel further goes on to suggest that
the judgment of Justice S.N.Phukan, J also in a way supports this when the
learned Judge says in paragraph 44 thus:
“The only question which according to me needs consideration is the
true effect of the expression “same case” as appearing in Section 428 of the
Code of Criminal Procedure. The provision is couched in clear and unambiguous
language and states 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
one undergone by him during investigation, enquiry or trial in connection with
the “same case” in which he has been convicted. Any other period which is not
connected with the said case cannot be said to be reckonable for set-off. The
view of learned Brother Mr.Justice Thomas according to me accords the
legislative intent. Acceptance of any other view would mean necessary ( sic
necessarily) either adding or subtracting words to the existing provision,
which would not be a proper procedure to be adopted while interpreting the
provision in question.”
7. However, we find that the learned Judge has ultimately agreed with
the views expressed by Justice Thomas in which the learned Judge holds that
there could be a common remand also. We have no doubt that in this present
case, there was a common remand and therefore the accused was also suffering
the incarceration prior to his conviction in all the four cases. In that
view, there would be no question of retaining the petitioner in jail.
Hence, the Habeas corpus petition is allowed and the petitioner is
directed to be released forthwith unless he is required in some other case.
Index: Yes
Internet: Yes
usk
To
1.The Superintendent of Prisons,
Central Prison,
Salem-7.
2.The Public Prosecutor,
High Court,
Madras.