1. This is an application from Jail by the applicant who is convicted under Section 304 part (2) of the Indian Penal Code and sentenced to suffer R.I. for three years and to pay a fine of Rs. 300 in default to suffer further R.I. for six months.
2. The petitioner was arrested on January 31, 1975 on a charge under Section 302, Indian Penal Code. He was tried also under the same charge but as a result of the evidence before the Court, the offence was reduced to Section 304 part (2) and the above mentioned sentence was imposed upon him. The only effective prayer that is made in this matter is that the period of detention as an under-trial prisoner from January 31, 1975 to October 20, 1975 when he was convicted should be directed to be deducted from the sentence imposed upon him, under Section 428 of the present Code of Criminal Procedure. This is a right of the accused person and he should not have to make such an application at all. However, the peculiar manner in which the sentence has been pronounced in this case seems to have compelled the petitioner to get a clear direction from this Court.
3. The learned trial Judge discussed the evidence and after convicting the accused under Section 304 part (2) in the substantive part of his judgment this is what he observes:
Under the circumstances, the act committed by the accused shall be regarded as culpable homicide not amounting to murder. He is punishable under Section 304 part (2) I.P.C. In my opinion, the accused should be awarded three years' R.I. with Rs. 300/- fine in default a further R.I. for six months. This would be sufficient to meet the ends of justice.
This is how the judgment actually terminates. However, the learned Judge has added what may now be considered as an operative part of the judgment and has styled it as an order. That order is in the following terms:
Accused Jeevansing Gurubakshasing Rajmestry alias Ganny, is convicted under Section 304 part (2) I.P.C. and sentenced to suffer R.I. for three years and pay a Rs. 300/- fine in default suffer further R.I. for six months. The sentence shall be exclusive of the term for which the accused was in detention during investigation, enquiry or trial. The accused is acquitted of the charge under Section 302 I.P.C.
It is because of such an order that the Jailer perhaps found it difficult to grant reduction of the period of detention between January 31, 1975 and October 20, 1975. It appears that if this period is deducted, which in law must be, the accused would be coining out of the jail any moment. We are of the view that the learned trial Judge was clearly in error in adding the direction to the operative part of his judgment that the sentence shall be exclusive of the period of detention. No Court seems to have such a right to impose such a sentence. The sentence must be thought of independently on the basis of the nature and the gravity of the offence. The concession which the accused person, gets under Section 428, Criminal Procedure Code as a matter of right is a Legislature's flat and that has nothing to do with the quantum of sentence which a Court is inclined to impose.
4. In the substantive part of the judgment where the reasons to bring down the offence from Section 302 to 304 part (2) are mentioned, the learned Judge already expresses himself with regard to the sentence and states that in his opinion the sentence of three years R.I. with a fine of Rs. 300 or in default further R.I. for six months would meet the ends of justice. If this was his idea about the adequacy of the sentence, to add later on in the part of the operative portion of the judgment that the sentence shall be exclusive of the detention period is to actually increase the sentence by adding the period of detention. The judgment should be pronounced only once and the quantum and the severity of the sentence must be correlated to the facts and circumstances of the case and the nature of the offence committed. It is also permissible, nay, in fact necessary, these days under the new Code to consider not only the evidence but also the offender and the circumstances in which the offence is committed. This being so, the Court must independently make up its mind to pronounce certain quantum of punishment. The deduction under Section 428 then becomes a statutory deduction on the footing that the Court has already washed its hands of the accused not only by convicting him but pronouncing an adequate sentence.
5. We may illustrate this point a little further. Suppose in the present case where the learned Judge felt that three years sentence was sufficient to the accused, for no fault of any one the case is dragged on for three years, would the Judge say that the person is sentenced to three years exclusive of the custody period. It virtually amounts to imposing a sentence of six years. That is not the intention of the Legislature and the custody period should not be permitted to influence the mind of the Court in pronouncing adequate and reasonable sentence. The principles on which the sentences are determined are well-known and they need not be reiterated. We are thus satisfied that the learned Judge was clearly in error in adding the direction to his operative part of the judgment.
6. We therefore quash that direction, viz. that the sentence shall be exclusive of the term for which the accused was in detention during investigation, enquiry or trial. On the contrary, we pronounce that the operative part of the sentence shall be three years R.I. and to pay a fine of Rs. 300 in default to suffer R.I. for six months under Section 304 part (2), Indian Penal Code. The period of detention undergone by the accused must be given credit to from this sentence and the total sentence of the accused must be worked out on that footing only.
7. We thus allow this application and direct that the authorities concerned will give the accused credit of his period of detention under Section 428, Criminal Procedure Code on the footing that the only sentence in the case is three years R.I. and fine of Rs. 300 in default to suffer R.I. for six months under Section 304 part (2).