The High Court and the Sessions Judge are liable to pay compensation for the illegal detention of a person due to their negligence in not communicating the modified sentence to the Jail Authority and in not issuing a modified jail warrant.

Umesh Chandra Banerjee, J.

The Constitutional mandate that no person shall be deprived of his life or personal liberty except, according to the procedure established by law is the main thrust of submission in the matter under consideration.

2. Before adverting to the rival contentions be it noted here that the Law Court exists for remedying the wrong so as to do complete justice to a person who seeks justice and in the event of failure to make the same available to the seeker of justice the Law Court will fade away into insignificance resulting in total break down of the society-A situation which cannot be said to be permissible on the wake of 21st century. Law Court exists for the society and ought always to rise up to the occasion as and when situation so warrants, 3. It is at this juncture that certain factual details ought to be adverted to in order, however, to appreciate the contentions raised in the matter.

4. The petitioner was sent up for trial to answer a charge under s. 302 of the Indian Penal Code before P. Dutta, Sessions Judge, Howrah, in Sessions Trial No. XVI of 79 arising out of Malipanchghara P.S. Case No.6 dated 8th April, 1979. The learned Sessions Judge, Howrah, by a judgment and order dated 23rd April, 1979 convicted the petitioner under s. 302 Indian Penal Code and passed a sentence of life imprisonment. The records depict that against the order of conviction and sentence the petitioner preferred an appeal before this Court and the same was admitted and registered as Criminal Appeal No. 233 of 1979. The above-noted Criminal Appeal being Criminal Appeal No. 233 of 1979 was heard by this Court and by its order dated 21st November, 1980, upon altering the conviction from s. 302 IPC to s. 304(ii) IPC reduced the sentence to 7 (seven) years, rigorous imprisonment.

5. The factual score depicts further that 7 (seven) years period of imprisonment, in terms of the order of this Court, expired on 22nd April, 1986 but as the facts depict the petitioner was not released on that date. It is this non-release of the petitioner after the finality of the order which has been very strongly argued by Mr. Bagchi, appearing in support of the petitioner, to be wholly unauthorised and illegal and violative of the fundamental rights as guaranteed under Article 21 of the Constitution.

6. Before dealing with the matter any further, one redeeming feature on the factual score ought to be noted at this juncture viz., that even after the expiry of the seven year period the petitioner continued to remain in jail and having had no other alternative, a Habeas Corpus Petition was filed on behalf of the petitioner, being Criminal Miscellaneous Case No. 2801 of 1993 before a Division Bench of this Court presided over by Khastgir, J. (as she then was). In the order itself the Bench observed:

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In asmuch as Ayodhya Rajbhar is in custody since 23rd April, 1979 his period of imprisonment as per prison rule has expired on 22.4.86, Strange enough, even after the expiry of 7 years term of imprisonment the said Ayodhya Rajbhar has not been released and is still in custody at Dum Dum Central Jail. The notice of this application has been served upon the learned Public Prosecutor. This Court has specially fixed the matter on 14.6.93 to enable the learned Advocate for the State to obtain necessary instruction in the matter and also directed production of the record of the appeal. Unfortunately learned Advocate appearing for the State has not been able to obtain necessary information and/or instruction from the proper authorities.

Under those circumstances, this Court is of the view that the petitioner is entitled to an order as prayed for. The State has not filed any affidavit-in-opposition controverting the facts as stated in the affidavit on behalf of such detenu. Under those circumstances this Court passes an order as prayed for and directs the Superintendent, Dum Dum Central Jail to