The period between convictions for life imprisonment cannot be treated as under-trial prisoner period for the purpose of set off, as per relevant Supreme Court decisions and the Code of Criminal Procedure.

RAVI RANJAN, J.

Heard learned counsel for the petitioner and the State.

2. The petitioner has approached this Court for a direction to the respondent authorities for premature release of his son, namely, Ajit Kumar @ Ajit Prasad in terms of sentencing policy of the State Government. The son of the petitioner was convicted in Sessions Trial No.545/2001 arising out of Silao (Chabilapur) P.S. Case No.88 of 2001 and was sentenced to undergo life imprisonment vide judgment and order dated 26.02.2005 and 4.03.2005 respectively. Thereafter, he was also convicted in Sessions Trial No.499/2001 arising out of Bihar P.S. Case No.118 of 2001 and was sentenced to undergo life imprisonment vide judgment and order dated 16.04.2007 and 23.04.2007 respectively.

3. It has been urged on behalf of the petitioner that his son has completed 14 years of actual conviction and more than 20 years with remission in both the cases and, hence, he should be directed to be released prematurely as per the Bihar State Sentence Remission Policy.

4. A counter affidavit has been filed on behalf of the State. The stand of the State authorities, so far as conviction in Sessions Trial No.545/2001 is concerned, is that he has completed 14 years of actual imprisonment and 20 years of imprisonment with remission and, thus, he is entitled for his premature release but only after consideration of the opinion of the Presiding Officer as per the requirement under Section 432 of the Code of Criminal Procedure which is still awaited. In paragraph 9 of the counter affidavit, it has been undertaken that no sooner the opinion of the Presiding Officer is received, the proposal for premature release of son of the petitioner would be placed for consideration before the Sentence Remission Board.

5. However, so far as the second case is concerned, the stand of the State authorities in its supplementary counter affidavit is that the petitioner’s son has completed merely 13 years 05 months and 22 days of actual imprisonment as on 4.07.2017 and 17 years 02 months and 02 days of imprisonment along with earned remission and, thus, the aforesaid period is much less than the mandatory actual custody of 14 years without remission and 20 years with remission. So, his case, so far as the aforesaid Sessions Trial No.499/2001 is concerned, cannot be considered.

6. However, learned counsel for the petitioner, placing reliance upon the decision of the Supreme Court rendered in State of Maharashtra and another Vs. Najakat Alia Mubarak Ali [(2001) 6 Supreme Court Cases 311], has submitted that so far as the second case is concerned the period from the date of conviction in the first case till his conviction in the second case should be counted as under-trial prisoner also with respect to the second case (Sessions Trial No.499/01).

7. However, learned counsel for the State has placed reliance upon a subsequent judgment of the Supreme Court rendered in Atul Manubhai Parekh Vs. Central Bureau of Investigation [2010 AIR SCW 399] to impress upon this Court that once he was convicted in the earlier case, thereafter, he cannot be considered as under-trial prisoner in any case as he started serving his sentence as a convict in the concerned case and, thus, that period cannot be treated for counting the set off in the subsequent case.

8. We find force in the submission made on behalf of the State. The Division Bench of this Court in Butan Sah Vs. The State of Bihar and Ors. Rendered in 2015 (4) PLJR 396 has already considered this aspect of the matter and considering all the decisions of the Apex Court, the Division Bench has stated in paragraph nos. 39, 43 and 44 of the said judgment which is extracted and reproduced as under for better appreciation :

39. Clearly, therefore, the period, which a person spent, while serving a sentence of imprisonment as a convict in one case, would not be taken into account, and be treated, as a remand period or as a period undergone by him as an under-trial prisoner in th