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Shiv Raj Vs. the Superintendent, Central Jail - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1977CriLJ79
AppellantShiv Raj
RespondentThe Superintendent, Central Jail
Excerpt:
- .....operation. it was however, indicated that the respondent had no record of petitioner's pre-conviction detention and so the counsel for the petitioner submitted an application in order to make an appropriate application to the respondent for allowing his client the benefit of section 397-a of the code of criminal procedure by supporting his application with the necessary data. but in spite of that the respondent has refused to release the petitioner as, according to him, necessary clarification allowing the benefit of the provisions of section 397-a either from the retrospective date or after the date of the issue of the amendment was not received by him from the concerned departments. the petitioner has submitted that there was no need of any clarification in view of the.....
Judgment:
ORDER

Mian Jalal-Ud-Din, J.

1. This is an application on behalf of the petitioner for initiating contempt proceedings against the respondent the Superintendent. Central Jail, Jammu.

2. The petitioner has averred that he was convicted by the Sessions Judge, Udhampur on 29th of April, 1'974 and was sentenced to various terms of imprisonment under Sections 397, 394 and 392 E.P.C. Sentences were ordered to run concurrently. On appeal the petitioner's conviction was altered to Section 324, R.P.C. and sentence was reduced to 3 years' rigorous imprisonment. According to the petitioner he was arrested on 26th of June, 1973, and he remained under-trial prisoner from 26th June, 1973 to 29th of April, 1974, when he was convicted. The grievance of the petitioner is that he approached the respondent for giving him the benefit of Section 397-A of the Code of Criminal Procedure according to which the period of detention undergone by the accused during the investigation, inquiry or trial of the same case is to be set off against the terms of imprisonment that was imposed on him. But the respondent refused to afford benefit of this Section to the petitioner who, thereupon, approached the High Court by means of Criminal Miscellaneous Application No. 28 of 1976. This application was disposed of by this Court on 21-5-1976 in which the Advocate-General conceded that Section 397-A Cr.P.C. had retrospective operation. It was however, indicated that the respondent had no record of petitioner's pre-conviction detention and so the counsel for the petitioner submitted an application in order to make an appropriate application to the respondent for allowing his client the benefit of Section 397-A of the Code of Criminal Procedure by supporting his application with the necessary data. But in spite of that the respondent has refused to release the petitioner as, according to him, necessary clarification allowing the benefit of the provisions of Section 397-A either from the retrospective date or after the date of the issue of the amendment was not received by him from the concerned departments. The petitioner has submitted that there was no need of any clarification in view of the pronouncement of their Lordships of the Supreme Court on the subject that the section has got retrospective operation. The act of the respondent in defying the judgment amounts to contempt of the court which is to be dealt with according to law. The petitioner, it is claimed is entitled to be released after availing of the benefit of Section 397-A of Code of Criminal Procedure and by now he should have been released. Keeping him in detention against the law of the realm and against the directions given by the High Court amounts to flagrant abuse of law and the defiance of the directions of this Court.

3. Rule was issued and the respondent was called upon to file his objections. In his objections the respondent has slated that he never defied the order of the Court and the Supremacy of the law. He bona fide felt that that provisions under Section 397-A. of the Criminal Procedure Code are not retrospective in operation but only prospective. In this connection the respondent contacted the higher officers of the Government for seeking guidance and direction in this behalf. As the provision of law is debatable the respondent was not in a position to give his own opinion without the guidelines. In this way the respondent cannot be held liable for the alleged Contempt of the Court.

4. On merits, it is stated that the information regarding the detention of the petitioner is being collected. According to the information from the Superintendent Sub-Jail, Udhampur, the petitioner remained in Judicial Lock-up from 17-9-1973 to 28-4-1974 i.e., 7 months and 11 days.

5. I have heard the learned Counsel for the petitioner and the Additional Advocate-General appearing for the respondent.

6. The petition involves the determination of the twofold points:

1. Whether the Amendment Act No. V of 1976 is retrospective in operation and applies to pending cases; and

2. Whether the petitioner has been guilty of Contempt of Court ?

Section 397-A which was inserted in the Code of Criminal Procedure by Act No. 5 of 1976 provides that where an accused person 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 remainder, if any, of the term of imprisonment imposed on him. Act No. 5 of 1976 received the assent of the Governor on 13th of March, 1976 and was published in the Government Gazette dated 16th of March, 1976. The accused petitioner in the present case was convicted on 29th of April, 1974, by the Sessions Judge, Udhampur. The conviction was altered and the sentence was reduced to three years' rigorous imprisonment by the High Court on 5th of May, 1975. The question is whether the accused petitioner can claim the benefit of the newly inserted provisions of Section 397-A. Now that section, according to my view, embraces a case where a person has been convicted before Act No. 5 of 1976 came into farce and is undergoing the sentence of imprisonment at the time the said Act came into force. The judicial construction of the newly added Section is that it applies to all the pending cases in which the convict is undergoing sentence in execution of the warrant of the court. According to the plain language of the Section, the benefit can be claimed by all the convicts who are undergoing sentence of imprisonment at the time of the enforcement of Section 397-A. In other words the section retrospectively applies to the cases of convicts undergoing various terms of sentence of imprisonment. In this view of mine I am fortified by the pronouncements of their Lordships of the Supreme Court in two reported cases; : 1975CriLJ182 and : 1975CriLJ243 . In fact this position was conceded even by the Advocate-General appearing in an earlier petition before the Court.

7. From what has been stated above, it is clear that the accused petitioner, in the present case, is entitled to the benefit of Section 397-A and the period of' detention undergoing by him during investigation and trial can be set off against the substantive sentence of imprisonment awarded by the Court.

8. It was conceded before me on both sides that after computing the period of detention spent by the accused during investigation and trial the terms of imprisonment of the petitioner has expired. If that is so, then the accused petitioner deserves to be released forthwith if not otherwise required in any other case.

9. To me it appears that the respondent cannot be held guilty of contempt inasmuch as he has been labouring under misconception as to the correct interpretation of the section. It was the duty of the administrative department under whose control he is working to have given him guidelines and to have apprised him of the correct legal position. In his objections he has categorically stated that he tried to seek clarification on this debatable proposition but was left in the lurch. He expressed before me that he had no intention whatsoever to defy the orders of the Court.

10. I, therefore, accept this explanation of his and purge him of the contempt, The rule is, therefore, discharged.


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