1. The petitioner was convicted in Sessions Case No. 29 of 1971 and Sessions Case No. 79 of 1971 by the Additional Sessions Judge. Visakhapatnam, on 29-5-1972, and sentenced to one year and seven years on two counts, respectively, and the sentences were directed to run concurrently. The petitioner was an undertrial prisoner in the above cases from 19-6-1969 to 8-3-1970, i.e., for the period of 262 days, and also from 19-1-1971 to 28-5-1982, i.e., for a period of 496 days. It is therefore clear that he underwent imprisonment as an undertrial prisoner for a total period of 759 days. While the matters stand thus, the Sub-Divisional Magistrate, Parvathipur, ordered on 9-3-1970 in M.C. No. 4 of 1969 to furnish security with two sureties each for a sum of Rs. 2,000/- for one year. But the petitioner could not furnish the security, and he was therefore kept in prison for a period of on year, i.e., from 9-3-1970 to 9-3-1971.
2. The petitioner contends that if the period of undertrial imprisonment as well as the remission and also the period of imprisonment which he underwent as per the orders in M.C. No. 4 of 1969, the petitioner has to be released forthwith as he completed the entire period of imprisonment on two counts, and hence, he should be released forthwith. But the jail authorities did not accept this.
3. According to the counter the petitioner underwent a total period of imprisonment for 5 years 3 months and 20 days after giving the benefit of remission granted as per G.O. Ms. No. 1040 Home (Prl. A) dated 4-8-1972 and remission granted as per G.O. No. 1137 Home (Prl. A) dated 21-8-1982, remand period and ordinary remission earned, and thus, the respondents contend, if all these factors are taken into consideration and are deducted from the total period of sentence of 7 years, the prisoner has to undergo imprisonment for one year 8 months and 10 days, and that was unexpired portion of sentence as on 22-3-1982. In the counter they gave the details as follows :
Y. M. D. 1. Actual sentence undergone as on 22-3-1982. 2 2 12 2. State remission granted as per G.O. 1040 Home (Prl. A.) dated 4-8-1972. 0 3 0 3. State remission granted as per G.O. 1137 Home (Prl. A.) dt. 21-8-1972. 0 3 0 4. Remand period 2 0 29 5. Ordinary remission earned 0 6 9 6. Total sentence undergone 5 3 20 7. Sentence 7 0 0 8. Unexpired portion of sentence as on 22-3-1982. 1 8 10
The respondents, therefore, contend that the petitioner is due to be released from jail on 4-12-1984 in the ordinary course excluding remission, and if the remissions already earned and likely to be earned are excluded the date of release of the prisoner may be sometime in 1983, and this is if the petitioner does not get any punishment. The petitioner, therefore, cannot be released immediately, and the petitioner should undergo one year 8 months and 10 days from 22-3-1982.
4. Sri Padmanabha Reddy, the learned counsel for the petitioner contends that the respondents contention is untenable. According to him, the undertrial imprisonment as well as the remissions which the prisoner earned are taken into account together with the imprisonment of one year which the petitioner underwent as per the orders in M.C. No. 4/69, the petitioner should be treated to have undergone the entire period of imprisonment, and the question of unexpired portion as contended by the respondents in their counter does not arise. The learned Public Prosecutor on the other hand contends that the period of imprisonment which the petitioner underwent as per the orders in M.C. No. 4/69 cannot be included for giving benefit of set-off, since he has undergone sentence of imprisonment in a different case, i.e., in M.C. No. 4/69 and the detention period in M.C. No. 4/69 cannot be treated as undertrial imprisonment, and the court while passing the order of imprisonment in M.C. No. 4/69 did not direct that it should be run concurrently with the sentence of imprisonment passed in S.C. No. 29/71 and S.C. No. 79/71.
5. From the calculations given in the counter by the respondents they did not add the period of imprisonment of one year which the prisoner underwent in consequence of the order passed in M.C. No. 4/69. If that period of imprisonment is added, there is no necessity for the prisoner to undergo the imprisonment of one year 8 months and 10 days from 22-3-1982 as contended by the respondents in the counter.
6. The question is whether the period of imprisonment of one year which the prisoner underwent in connection with M.C. No. 4 of 1969 should be added or not
7. As stated above, Sri Padmanabha Reddy contended that it should be added, since the prisoner underwent that period of imprisonment of one year along with the imprisonments which he underwent in connection with the two Sessions cases.
8. The respondents wanted the prisoner to undergo imprisonment still for a period of one year 8 months and 10 days, because the period of imprisonment of one year which the prisoner underwent in consequence of the order in M.C. No. 4/69 was not added. In the counter itself the respondents admitted that the petitioner underwent one year imprisonment in consequence of the order passed in M.C. No. 4 of the 1969. That should, therefor, be taken into consideration along with the period of imprisonment which the prisoner underwent as an undertrial prisoner and also the regular sentences passed in the two sessions cases besides the benefit of remissions earned by him being taken into consideration.
9. It is true, that the petitioner underwent imprisonment of on year in a different case. But that does not make any difference so far as the provisions of S. 428 is included in the Criminal P.C. to give set-off to the period of detention or imprisonment which the prisoner has undergone before undergoing the regular sentence of imprisonment passed in the criminal case or in the sessions cases. The language employed in S. 428 makes it abundantly clear that the period of detention if the prisoner has undergone during investigation, enquiry or trial of the same case before the date of conviction shall be set-off against the term of imprisonment imposed on him on such conviction, and the liability of such prisoner to undergo imprisonment on such conviction shall be restricted to the remission if any of the terms of imprisonment imposed on him.
10. The learned Public Prosecutor wants to lay stress upon the expression 'the period of detention if any undergone by him during the investigation, enquiry or trial of the same case', and contends that the imprisonment which the prisoner underwent in M.C. No. 4/69 cannot be deemed to be the imprisonment during investigation, enquiry or trial of the above said sessions cases.
11. We find ourselves unable to agree with the construction given by the learned Public Prosecutor on this expression. If this expression is understood in its proper perspective, it would only mean that all the periods of imprisonment which the same prisoner underwent as an undertrial prisoner before the date of the conviction, which the prisoner has suffered should be given set-off against the terms of imprisonment imposed on him on such conviction. As the petitioner underwent the period of imprisonment of one year in consequence of the order in M.C. No. 4/69 before the date of the conviction in the Sessions cases mentioned above, that period also should be taken of imprisonment which he underwent as an undertrial prisoner for the purpose of getting set-off. When once a person has been convicted and sentenced to imprisonment, then all the period which he spent in all the cases, which precede the conviction and sentence awarded, and the main case will be deemed to be the period spent in serving out the sentences, because no person can be deemed to be in jail without serving the sentences passed against him. The petitioner is therefore entitled to get the periods spent by him in jail even if he was arrested on the basis of the orders passed in M.C. No. 4/69, against the sentence awarded to him in the Sessions cases mentioned above.
12. Similar view was taken by the Division Bench of the Allahabad High Court (Lucknow Bench) in Onkar Singh v. Police Officer, Prashasan, 1979 Cri LJ 1098. In that case the petitioner was convicted in Crime No. 141 of 1974 and sentenced to four years' imprisonment. The petitioner's contention is that the period of four years has expired but the petitioner has not still been released from jail. According to the petitioner he was put into hospital for some time during which he was in custody because of his illness and that he was entitled to the benefit of this period for the purpose of serving out the sentence. The petitioner's further contention is that when he was released on parole and had not surrendered and the parole had been cancelled, he was arrested in connection with the same case and the period which he served thereafter would be deemed to be out of the sentence awarded to him and that if the benefit of these two periods is given the period of four years will be deemed to have expired. The learned Government advocate contended that though the petitioner would be entitled to the benefit of the period which he spent in hospital, he would not be entitled to the benefit of the other period as he was put in jail not on the basis of the warrant issued in respect of this case but in respect of some other case.
13. The learned Judges observed that it the petitioner had been arrested in respect of the case in which he had been sentenced there can be no difficulty in holding that the petitioner was entitled to the benefit of the period he has been in jail. Even if it be assumed that the petitioner when lodged in jail had been put there on the basis of a warrant issued in respect of another crime, they see no reason why the petitioner will not be entitled to say that the period spent by him in jail should be counted towards his sentence. Once a person has been convicted and sentenced to jail then all the period which he spends in jail will be deemed to be the period spent in serving out the sentence.
14. In the view which we have taken, we have to hold that the respondents are not justified in refusing to include the period of imprisonment of one years which the petitioner underwent in consequence of the orders passed in M.C. No. 4/69 for the purpose of giving set-off on the ground that the prisoner underwent imprisonment in a different case.
15. In the light of the observations made above the Jail Authorities are directed to calculate and then give the benefit of period which he had already undergone in consequence of the orders passed in M.C. No. 4/69.
16. In the result, the writ petition is allowed. No costs. Advocate's fee Rs. 250/-.
17. Petition allowed.