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2009 Supreme(Mad) 3468
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA & THE HONOURABLE MRS. JUSTICE R. BANUMATHI
Daulath
Versus
The State of Tamil Nadu, rep. by its Secretary to Government, Home (Prison) Department & Others
Habeas Corpus Petition No.1083 of 2009
Decided On : 01-09-2009
For the Petitioner:P.S. Kothandaraman, Advocate.
For the Respondents: V.R. Balasubramanian, Addl. Public Prosecutor.
Headnote:A. TAMILNADU PREVENTION OF DANGEROUS ACTIVITIES OF BOOTLEGGERS, DRUG OFFENDERS, FOREST OFFENDERS, GOONDAS, IMMORAL TRAFFIC OFFENDERS, SAND OFFENDERS, SLUM GRABBERS AND VIDEO PIRATES ACT, 1982 - (TN ACT 14 OF 1982) - SECTION 3 - CONSTITUTION OF INDIA - ART. 226 - HABEAS CORPUS PETITION -
The petitioner challenged the continued detention of his son, as illegal and prayed for quashing his further detention and his consequent release. In the instant case the detenu was convicted and sentenced to undergo imprisonment for a term and was subsequently convicted and sentenced in two different cases. The detenu questioned his continued detention after the expiry of detention period in the first case on the ground that the subsequent sentences imposed on him telescoped into the first one. Though agreeing with the argument of the petitioner in part the court disposed of the petition and HELD that in the instant case as the trial court while sentencing the accused had not taken into account about his earlier sentence and directed concurrent serving of the same, the prisoner would serve the sentence consecutively.
B.CRIMINAL PROCEDURE CODE, 1973 - SECTION 427 -
The general rule is that a sentence commences to run from the time of it being passed, but S. 427 Cr.P.C. creates an exception in the case of person already undergoing imprisonment and postpones the operation of subsequent sentence until after the expiry of the previous sentence. As a result, subsequent sentence shall start running after the expiry of first sentence of Imprisonment. The court however pointed out that the aforesaid general rule can be changed by an order of the court as the same was discretionary. (Para 22)
Result: Habeas Corpus disposed off with direction.
R. Banumathi, J.
Petitioner is the mother of detenu-Savith @ Sayeed Yusuf who is the convict in batch of cases. Habeas Corpus Petition has been filed alleging that custody of the detenu from 05. 2009 is illegal and seeking for a direction to set him at liberty.
2. The points falling for consideration are:-
1. When the accused is simultaneously in custody for more than one cases and convicted in two or more cases and when undergoing substantive sentence in one case, is he eligible to invoke the benefit of set off for any period in the subsequent case?
2. In the absence of a direction that the sentence of imprisonment in different cases would run concurrently whether conviction in the second Group of cases will begin to run after the expiry of the conviction period in the first Group?
3. Petitioners son, Convict No.5031 Javith @ Sayeed Yusuf was convicted u/s.379 IPC concerned in Udumalpet Police Station in Crime Nos.21/2007, 10/2007, 13/2007, 14/2007 and 16/2007 [C.C.Nos.21/2007, 57/2007, 58/2007, 59/2007 and 60/2007 on the file of Judicial Magistrate, Udumalpet] and sentenced to undergo R.I. for two years. The set off was allowed for a period of 267 days from 1. 2007 to 010. 2007. The date of release after expiry of two years sentence is 010. 2009. After deduction of set off period of 267 days, the date of release was 09.01.2009. So far as the first group of cases, there is no dispute.
4. In the second group of cases, by the Judgment dated 08.01.2008, Petitioners son was convicted u/s.379 and 75 IPC concerned in B-7, Coimbatore Police Station in Crime Nos.668/2005 and 509/2005 and B-6, Coimbatore Police Station in Crime No.927/2005 [C.C.Nos.422/2006, 423/2006 and 424/2006 on the file of J.M.No.III, Coimbatore] and sentenced to undergo R.I. for three years. In the Judgment, trial court has ordered set off from 31.07.2005 to 20.11.2006 [476 days] and from 21.08.2007 to 08.01.2008 [140 days] totaling 616 days. In the second Group of cases, after the set off the period of sentence was 480 days [1096-616 = 480 days]. A little later, we would advert to the point as to the date from which it would start run. But before doing so, we would deal with the contentions raised as to the set off period u/s.428 Cr.P.C.
5. Contention of the prosecution is that for the second group of cases, set off period is allowable only for the period from 37. 2005 to 20.11.2006. Specific case of the prosecution is that the convict was ineligible for set off for the period from 010. 2007 to 08.01.2008. Contention of the prosecution is that while the convict was undergoing conviction in some other cases, he is ineligible for set off in another case as remand trial prisoner.
6. Like wise, in the third group of cases, by the Judgment dated 30.03.2009, Petitioners son was convicted u/s.379 IPC concerned in Tirupur South Police Station in Crime No.146/199 [C.C.No.264/2001 on the file of J.M.No.II, Tirupur] and sentenced to undergo R.I. for one year. Petitioner has filed the warrant in the third Group of cases. As per which, Court has ordered set off of 625 days as under:-
Vernacular (Tamil) Portion Deleted
The learned Additional Public Prosecutor contended that the period has to be restricted to the date of conviction in the first case and that convict becomes ineligible for set off from 11.08.2008 to 30.03.2009 and the convict would be eligible only for set off period of 392 days.
7. Like wise in the Group III-A cases, by the Judgment dated 30.03.2009, Petitioners son was convicted u/s.379 IPC concerned in Tirupur South Police Station Crime No.140/1999 [C.C.No.125/2003 on the file of Judicial Magistrate No.II, Tirupur] and sentenced to undergo R.I. for one year. The sentence in Group III and III-A cases was ordered to run concurrently and the Court has ordered set off of 424 days as under:-
Vernacular (Tamil) Portion Deleted
The learned Additional Public Prosecutor contended that the convict is ineligible for set off from 11.08.2008 to 30.03.2009 and
