Man Singh vs State Of Raj on 26 May, 2010

    1] D.B. CRIMINAL PAROLE WRIT PETITION NO.4649/2010
         Satya Narayan Vs. State of Rajasthan

      2] D.B. CRIMINAL PAROLE WRIT PETITION NO.4090/2010
         Man Singh Vs. State of Rajasthan & Ors.


            Date of Order           ::    26.5.2010


         HON'BLE MR. JUSTICE PRAKASH TATIA
      HON'BLE MR. JUSTICE SAJJAN SINGH KOTHARI


Mr. R.S. Gill           ] for the petitioners
Mr. Kaluram Bhati       ]
Mr. K.R. Bishnoi, Public Prosecutor


      Though these petitions have been preferred as D.B.

Criminal Parole Writ Petitions but in fact these petitions are not

parole writ petitions and are D.B. Criminal Misc. Petition under

Section 482 Cr. P.C., therefore, these petitions are treated as

D.B. Criminal Misc. Petitions.



      The facts of the case are that the petitioners-Man Singh

S/o. Mukh Ram and Satya Narayan S/o. Jai Lal faced trial in

Sessions Case No.5/81 for the offence under Sections 148,

364/149 and 302/149 I.P.C. and were convicted by judgment

dated 17.8.1982 passed by the Sessions Judge, Churu.           The

petitioners were sentenced to undergo (i) life imprisonment and

a fine of Rs.50/-, in default of payment of fine to further undergo

three months' R.I. for offence under Section 302/149 I.P.C.,

(ii) Five years'   R.I. and   a fine of Rs.50/-, for offence under

Section 364/149 I.P.C. and (iii) Eight months' R.I. for the

offence under Section 148 of I.P.C.        All the sentences were

ordered to run concurrently.
        The    petitioners   preferred      D.B.    Criminal   Appeal

No.314/1982, which was dismissed by the Division Bench of this

Court on 26.4.1997.



       In the warrant of committal to jail on a sentence of

imprisonment or fine issued by the Sessions Judge, Churu dated

13.10.1982, a note has been appended that the sentence

suffered by the petitioners-convict in judicial custody and police

custody shall not be counted while counting the total sentence of

the petitioners.



       Section 428 Cr. P.C. provides "that where an accused has,

on conviction, been sentenced to imprisonment for a term, 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 the

liability of such person to undergo imprisonment on such

conviction shall be restricted to the reminder, if any, of the term

of imprisonment imposed on him".             Therefore, the period

undergone by the petitioners in jail during investigation, inquiry

or trial of this case could not have been taken out from counting

of the total period for which the petitioners can be kept in jail.



       In the judgment dated 17.8.1982 also, there is no order

that   the   imprisonment   which    has    been   suffered   by     the
      petitioners in judicial custody or police custody shall not be

     counted as the sentence suffered obviously for the reason that it

     would have been contrary to the Section 428 Cr. P.C.          In the

     Division   Bench   judgment   the   sentence   could   have    been

     challenged and, therefore, the issue was not decided by the

     Division Bench while deciding the D.B. Criminal Appeal of the

     petitioners.   Be that as it may, the warrant can be              in

     consonance with the judgment and in warrant no condition can

     be imposed so as to enlarge the period of accused sentence

     beyond the statutory provision.



           In view of the fact that the final decision was given by the

     Division Bench, therefore, this D.B. Criminal Misc. Petitions under

     Section 482 Cr. P.C. are allowed.     The condition mentioned in

     the warrant dated 17.8.1982 being contrary to law and contrary

     to the judgment in pursuance of which the warrant was issued, is

     set aside. The consequential effect be given by the concerned

     authorities.



     (SAJJAN SINGH KOTHARI), J.               (PRAKASH TATIA), J.

Sanjay/