Hari Swarup, J.
1. This petition has been filed for a writ in the nature of habeas corpus and for the grant of such other writ as the Court may deem proper to set the petitioner at liberty. The petitioner was prosecuted and convicted under Crime No. 141 of 1974 for the offences under Sections 147, 148, 149, 332, 307 and 302 of the Indian Penal Code. He was 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 while he was in custody because of his illness and that he was entitled to the benefit of this period for the purposes 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 be expired.
2. Learned Government Advocate has appeared and 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. In that other case the petitioner has been acquitted.
3. If 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, we 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 because no person can be deemed to be in jail with a sentence against him and not serving out that sentence. The petitioner was thus entitled to get the period spent by him in jail even if he was arrested on the basis of the warrant issued in connection with another case counted as against the sentence awarded to him in respect of Crime No. 141 of 1974.
4. In case the petitioner has served out the sentence, there can be no justification for his being detained in jail any longer. As the question involves the determination of facts, it would be appropriate that a direction be given to the State Government and the Jail authorities to make the calculation of the period of sentence served by the petitioner in the light of the observations made above and to release the petitioner as soon as the period runs out and to release him forthwith in case it has already run out.
5. In the result the petition is allowed. Let a mandamus be issued to the State Government and the Superintendent of Model Jail, Lucknow, requiring them to determine in accordance with this judgment if the petitioner has served out the sentence awarded to him in respect of Crime No. 141 of 1974. Within a period of three days from today and to release the petitioner from jail as soon as the period of sentence is served out by the petitioner. In case he has already served out the sentence, he should be released as soon as the determination is made. Let a copy of this order be given to the learned Government Advocate and the petitioner by tomorrow.