The period of set off as contemplated under Section 428, Cr.P.C. would be the period when in that case a person is first under remand custody as an under-trial and then he is sentenced. The distinction between the nature and status of detention must be kept in mind, and the period spent serving out a sentence as a convict cannot be considered as a remand period as an under-trial in another case.

By the Court.- The petitioner is in custody in District Jail, Sitamarhi consequent to his conviction in different cases. By this writ application, he seeks release from custody on the ground that if proper calculation is made then he has served out his sentences and/or there is no case in which he can be retained or detained in custody.

2. The facts are not in dispute. State has filed detailed counter-affidavit. We have heard the learned counsel for the petitioner and Mr. Tej Bahadur Singh, senior advocate, learned A.A.G.-VII on behalf of the State and with their consent this writ application is being disposed of at this stage itself.

3. The present writ application involves interpretation and application of Sections-427 & 428 of the Code of Criminal Procedure. 1973. The primal question that is to be answered is, whether while a person is serving out a sentence, having been convicted in one case and who has been remanded during the said period of sentence custody in another case, can the period of remand be taken into consideration for the purposes of set-off against the sentence which is then passed upon conviction in the second case as well?

4. Learned counsel for the petitioner has principally placed reliance on two Division Bench judgments of this Court in the case of Shambhu Nath Singh v. State of Bihar arid others, since reported in 2003 (1) East Cr C 675 (Pat) : 2003 (1) PWR 747 and in the case of Hari Shankar Sah v. State of Bihar and others, since reported in 2003 (3) PWR 322. Both these decisions have, in fact, followed and applied the judgment of the Apex Court in the case of State of Maharashtra v. Najakat Alia Mubarak Ali, since reported in (2001) 6 SCC 311. His submission further would be that the view of the State Government in this regard as apparent from the Circular No.4987 dated 10th November, 2010 as contained in Annexure-4 to the writ application and Annexure-A to the Court affidavit is correct and the subsequent circular staying its operation issued by Jail Directorate being Circular No.5659 dated 22nd December, 2010 being Annexure-3/1 to the writ application and Annexure-A/1 to the counter-affidavit is wrong and contrary to law.

5. On the other hand, learned Additional Advocate General-VII places reliance on the decision of the Apex Court in the case of Atul Manubhai Parekh v. Central Bureau of Investigation, since reported in (2010) 1 SCC 603 : 2010 (1) East Cr C 138 (SC) which has taken note of Najakat Alia Mubarak Ali (supra) and other decisions.

6. The facts leading to the present controversy are not in dispute and are noted hereunder.

7. We are concerned with three cases in which petitioner have been convicted on different dates. In two of those cases he was in custody prior to conviction as well for different periods. For convenience we choose to refer to the three cases as the first case, the second case and the third case.

8. The first case is Purnahia P.S. Case No.19 of 2005 which was instituted under Section 25 (1-B) and Section 26 of the Arms Act. In this case, he was in pre trial judicial custody as an under trial prisoner for the period 23.4.2005 to 25.7.2006. i.e., 1 year 3 months and 2 days. In this case, he was convicted and sentenced on 26.7.2006 with 3 years of rigorous imprisonment and fine, on failure to pay which additional 3 months imprisonment was awarded. If the period of sentence of 3 years and 3 months fine default period is taken into account then from the date of sentencing his date of release would 25.10.2009. But, in view of the Section 428 of the Code of Criminal Procedure he is entitled to and has been given benefit of set off of under-trial period of 1 year 3 months 2 days which would prepone his date of release, thus, to 23.7.2008.

9. In the second case, i.e., Purnahia P.S. Case No. 18 of 2005 appertaining to Sessions Trial No. 374 of 2005 instituted under Section 364-A of the Indian Penal Code he was convicted on 13.1.2007 and taken into custody for serving life sentence