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IN THE HIGH COURT OF JUDICATURE AT PATNA
I. A. ANSARI & SAMARENDRA PRATAP SINGH, J.
Butan Sah – Appellant
Vs.
State of Bihar & others – Respondents
Criminal Writ Jurisdiction Case No. 423 of 2014
Decided On : 17/07/2014
set off - Criminal Procedure - 31, 427, 428, 64 - The court discussed the provisions of set off as embodied in Section 428 of the Code of Criminal Procedure and its application to the period of imprisonment undergone by the petitioner. The court highlighted that the provisions of set off apply only to the period spent as an under-trial prisoner during investigation, enquiry, or trial in the same case in which the person is subsequently convicted. The court also emphasized that the period of imprisonment spent as a convict cannot be set off against the period of imprisonment following a subsequent conviction in a different case.
Fact of the Case:
The petitioner, convicted in multiple cases, sought release from custody based on the application of set off under Section 428 of the Code of Criminal Procedure. The court analyzed the provisions of set off and its application to the petitioner's case.
Finding of the Court:
The court found that the provisions of set off apply only to the period spent as an under-trial prisoner during investigation, enquiry, or trial in the same case in which the person is subsequently convicted. The court concluded that the period of imprisonment spent as a convict cannot be set off against the period of imprisonment following a subsequent conviction in a different case.
Issues: The issues raised in the present writ petition were whether the subsequent sentence of imprisonment passed against a person already undergoing imprisonment for a previous conviction would be covered by the provisions of set off as contained in Section 428 of the Code of Criminal Procedure and whether the provisions of set off would be available against the period spent while undergoing imprisonment in the previous case or confined only to the period undergone during the investigation, enquiry, or trial of the subsequent case.
Ratio Decidendi: The provisions of set off apply only to the period spent as an under-trial prisoner during investigation, enquiry, or trial in the same case in which the person is subsequently convicted. The period of imprisonment spent as a convict cannot be set off against the period of imprisonment following a subsequent conviction in a different case.
Final Decision: The court held that the petitioner had not completed the sentences of imprisonment passed against him and therefore, no direction for release could be passed at that stage. The petitioner would be released upon completing the period of his sentences of imprisonment passed at different trials.
I. A. ANSARI, J.
The petitioner, who is in custody in District Jail, Siwan, consequent to his conviction in as many as 8 (eight cases, agitates, in this writ petition, made under Articles 226 and 227 of the Constitution of India, that he ought to have been released from custody if the provisions of set off, as embodied under Section 428 of the Code of Criminal Procedure, were correctly applied inasmuch as he has, contends the petitioner, served out the sentences, which have been passed against him in the cases aforementioned.
2. The material facts and stages, which have given rise to the present writ petition, fall in a narrow compass and may be set out, in brief, as under :
(i) The petitioner was arrested in connection with Siwan Mufassil Police Station Case No. 221 of 2010 under Section 379 of the Indian Penal Code and remanded to custody on 2-2- 2011 and, on the basis of the statements, allegedly made by the petitioner, he was arrested and remanded to custody in 7 (seven) other criminal cases, all cases having been registered under Section 379 of the Indian Penal Code.
(ii) Besides Siwan Mufassil Police Station Case No. 286 of 2010, wherein the petitioner was remanded to custody, on being arrested, on 14-2-2011, he came to be arrested in seven other criminal cases, which are described hereinbelow with respective dates of remand:
(a) Siwan Mufassil Police Station Case No. 48 of 2010, wherein the petitioner was remanded to custody on 18-2-2011;
(b) Siwan Town Police Station Case No. 221 of 2010, wherein the petitioner was remanded to custody on 2-6-2011;
(c) Siwan Town Police Station Case No. 167 of 2010, wherein the petitioner was remanded to custody on 9-6-2011;
(d) Siwan Town Police Station Case No. 164 of 2010, wherein the petitioner was remanded to custody on 12-7-2011;
(e) Siwan Town Police Station Case No. 157 of 2010, wherein the petitioner was remanded to custody on 12-7-2011;
(f) Doraunda (M.H. Nagar) Police Station Case No. 103 of 2010, wherein the petitioner was remanded to custody on 16-7-2011;
(g) Siwan Town Police Station Case No. 120 of 2011, wherein the petitioner was remanded to custody on 29-8-2011.
(iii) The petitioner pleaded guilty to the charge of theft under Section 379 of the Indian Penal Code and, consequent upon his pleading guilty, he was convicted in all the eight cases mentioned hereinbefore, and sentences were accordingly awarded in each case. The respective dated of judgment and order of conviction and sentence, period of sentence and also the period, already undergone by the petitioner till the filing of this writ petition, are as under :
(a) Siwan Town Police Station Case No. 157 of 2010, wherein the judgment of conviction and sentence was passed, on 1-12-2013, and the petitioner has been sentenced to undergo simple imprisonment for a period of 2 (two) years and 5 (five) months, out of which the petitioner had already undergone sentence for 2 years 4 months 20 days;
(b) Siwan Town Police Station Case No. 164 of 2010, wherein the judgment of conviction and sentence was passed, on 1-12-2013, and the petitioner has been sentenced to undergo simple imprisonment for a period of 2 (two) years and 5 (five) months, out of which the petitioner had already undergone sentence for 2 years 4 months 20 days;
(c) Siwan Town Police Station Case No. 221 of 2010, wherein the judgment of conviction and sentence was passed, on 2-12-2013, and the petitioner has been sentenced to undergo simple imprisonment for a period of 2 (two) years and 6 (six) months, out of which the petitioner had already undergone sentence for 2 years 6 months;
(d) Doraunda (M.H. Nagar) Police Station Case No. 103 of 2010, wherein the judgment of conviction and sentence was passed, on 2-12-2013, and the petitioner has been sentenced to undergo simple imprisonment for a period of 2 (two) years and 6 (six) months, out of which the petitioner had already undergone sentence for 2 years 4 months 16 days;
(e) Siwan Town Police Statio Case No. 120 of 2
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