Heard learned counsel for the petitioner, learned counsel representing the State as also the learned counsel representing the private respondent no.5.

2. Petitioner has moved this Court for a writ in the nature of certiorari to quash the letter no.1917 dated 19.09.2017 issued by the Superintendent of Divisional Jail, Khagaria in connection with Mansi (Chautham) P.S. Case No.192 of 1988 by which he has informed to the learned court below that the calculation done by the Superintendent of Divisional Jail, Munger regarding the period spent by the petitioner in custody in connection with this case is not correct and that the petitioner has not completed 10 years of custody and accordingly he cannot be released.

CASE OF THE PETITIONER

3. Mr. Ajay Kumar Thakur, learned counsel representing the petitioner submits that the petitioner in the present case was convicted by the learned trial court in this case vide Session Trial No.184/89 vide judgment and order dated 24.12.2016, he was sentenced to undergo life imprisonment under Section 302 I.P.C. and also to pay a fine, but the said judgment of the learned trial court was later on set aside by a Division Bench of this Court in Cr. Appeal (DB) No.60 of 2017 and the Hon’ble High Court vide judgment and order dated 29.08.2017 was pleased to convert the conviction from under Section 302 of the I.P.C. to Section 304 (Part II) of the I.P.C. and accordingly directed to suffer rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- and in default of payment of fine to suffer rigorous imprisonment for two years.

4. It is his submission that when a fresh warrant of conviction was issued in this case, the petitioner filed an application in the trial court claiming that he had completed ten years in custody and therefore he should be released, a report was called for by the learned trial court from the Superintendent, Divisional Jail, Munger. The Divisional Jail Superintendent, Munger vide memo no.2322 dated 10.09.2017 informed that the period spent by the petitioner in custody in connection with this case is 9 months 9 days. Thereafter, the period spent by the petitioner in Khagaria Jail was also called for. On the basis of the letter no.2297 dated 07.09.2017 sent by the Superintendent, Munger Jail, learned counsel claims that accused had spent in custody ten years twenty-five days and therefore from the order dated 13.09.2017 passed by the learned trial court, it would appear that he was directed to be released in the light of the judgment of the Hon’ble Court, but when the petitioner was not released, he had to again move the court and thereafter the Superintendent, Divisional jail, Khagaria vide letter no.1917 dated 19.09.2017 informed that there was some defect in the earlier report and the convict has not completed ten years and the period shown to have spent in Khagaria Jail for 7 months 4 days cannot be calculated in completing the period of custody.

5. It is the claim of the petitioner that the Superintendent, Divisional Prison, Munger vide his letter as contained in Annexure-4 to the application, had initially informed the learned court that the petitioner has remained in custody now for a total period of 9 months 9 days, thereafter when the learned trial court directed to calculate the entire period of custody of the petitioner in the present case, the Superintendent, Divisional Jail, Munger had submitted a report vide Annexure-5 to the writ application stating that the total period of custody of the petitioner is 10 years 25 days. On the same date, vide letter no.2296 dated 07.09.2017 as contained in Annexure-6 to the writ application, the Superintendent of Divisional Jail, Munger informed the Superintendent of Divisional Jail, Khagaria that in Munger Jail the total period spent by the petitioner in connection with this case was 9 months 9 days.

6. One of the submissions of the learned counsel representing the petitioner is that in the present Sessions Trial No.184/89