PRAHLAD Vs. STATE
LAWS(RAJ)-1952-10-14
HIGH COURT OF RAJASTHAN
Decided on October 03,1952

PRAHLAD Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.)THIS is an application by Prahlad under sec. 491 (1) (a) of the Code of Criminal Procedure, and has arisen in the following circumstances.
(2.)THE applicant was convicted by a First Class Magistrate of Jodhpur on the 20th of July 1949 and sentenced to two years' rigorous imprisonment. He was confined in the Central Jail at Jodhpur and remained there up to the 6th of January 1950. On that date he was sent to Ajmer to stand his trial in that State in connection with some offence. He remained in Ajmer Jail from the 6th of January 1950 to the 31st of January 1951 when he was convicted by the Ajmer court to one year's rigorous imprisonment. During this period he appears to have been treated as an under-trial prisoner in the Ajmer Jail, THEreafter, he remained in the Ajmer Jail for a further period up to the 23rd of December 1951 as a convict. THEn on that date he was sent back to the Central Jail at Jodhpur and has remained there all along as a convict. His case is that he was sentenced to two years' rigorous imprisonment by the Jodhpur court and to one year's rigorous imprisonment by the Ajmer court, i. e. , in all to a total period of three years' rigorous imprisonment. THE conviction in the Jodhpur court was on the 20th of July 1949 and therefore his sentence began to run from that date. Counting three years from the 20th of July 1949, the applicant claims that he should have been released on the 20th of July 1952 and that his detention thereafter by the Jail authorities at Jodhpur is against law.
The case of the State that the period from the 6th of January 1950 to 31st of January 1951, when the applicant was in the Ajmer Jail presumably as an under-trial prisoner, should not be counted towards the sentence of imprisonment passed on him by the Jodhpur court and therefore he has not served the full period of two years' rigorous imprisonment as ordered by the Jodhpur Court.

The question, therefore, is whether it is open to the State to exclude the period from the 6th of January 1950 to the 31st of January 1951 and to count the period of two years' rigorous imprisonment after excluding this period. The general principle of law is that a sentence of imprisonment begins immediately it is passed. Sec. 35 Cr. P. C. deals with those cases where a man is sentenced to two terms of imprisonment in the same trial and provides how the sentences are to run whether concurrently or consecutively. Sec. 397 of the same Code deals with cases of prisoners who are sentenced to two different terms of imprisonment by two different courts and provides how the sentences are to run. A perusal of these sections clearly shows that they are based on the general principle that the sentence of a convicted person begins at once after it has been passed and these sections provide the exceptions to the general rule.

In the present case also the sentence of the applicant began on the 20th of July 1949 immediately after his conviction and he was lodged in the Central Jail at Jodhpur on that very date. The question is whether this sentence which began on the 20th of July 1949 could be interrupted under any law in force in Rajasthan. It is admitted on behalf of the State that there is no law in force in Rajasthan which lays down that the period of imprisonment once begun can be interrupted. Reliance is, however, placed on sec. 11 (2) and sec. 12 of the Indian Extradition Act. Sec. 11 (2) specifically provides that "on the surrender of a person undergoing sentence under a conviction in British India, his sentence shall be deemed to be suspended until the date of his re-surrender, when it shall revive and have effect for the portion thereof which was unexpired at the time of his surrender". Thus there is a specific provision in what was formerly British India for suspension of sentence in case the accused was surrendered to another State. No such provision ever existed either in the former State of Jodhpur or in Rajasthan.

Sec. 12 provides that the provisions of Chapter III of the Indian Extradition Act shall, with necessary modifications, apply to the case of a person who, having been convicted of an offence in the territories of any State not being a Foreign State, has escaped into or is in British India before his sentence has expired. It is urged that in view of this provision, sec. 11 (2) applies to cases of convicted persons also who were transferred from what are now Part B States into what was formerly British India and that such persons were treated as under-trial prisoners in what was formerly British India and not as convicts. We are of opinion that this interpretation of sec. 12 of the Indian Extradition Act is not correct. The other provisions of Chapter III apply only to accused persons and that is why sec. 12 was enacted to cover the cases of convicts of what are now Part B States, if they are found in British India. If this section was not there, convicts could not be extradited from former British India while accused persons could be. But this would not in our opinion supply the deficiency which admittedly exists in the law in Rajasthan. In the absence therefore of any provision corresponding to sec. 11 (2) in the law of Rajasthan, it is not open to the jail authorities to treat the period during which the applicant was away at Ajmer and in jail as interrupting the period for which he was convicted and sentenced on the 20th of July 1949. |

Under these circumstances, as the applicant has all along been in jail whether in Jodhpur or in Ajmer since the 20th of July 1949 and as the total period for which he was sentenced by the courts of Jodhpur and Ajmer was three years and as that period expired on the 19th of July 1952, his further detention after that date is improper. We, therefore, order under sec. 491 Cr. P. C. that the applicant be released at once if not required in any other connection. .



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