- (1.) THIS petition has been filed for quashing the order dated 20.4.2011 passed by Addl. Chief Judicial Magistrate, Court No.5, Unnao in Criminal Case No.433 of 2009, State Vs. Kishan Dwivedi. A prayer has also been made to allow the application dated 16.4.2011 filed by the petitioner claiming benefit of set-off.
(2.) THE facts giving rise to the present petition are that an FIR was lodged against the petitioner on 21.5.2004 at Case Crime No.176 of 2004 under Sections 408, 409, 410, 413, 415, 418, 420, 464, 465, 468, 471 & 120-B IPC. THE petitioner was detained in jail since 25.11.2003. As many as six cases were registered against the petitioner. Although the petitioner was in jail but warrant-B was not served upon him and the investigation remained in process. THE Investigating Officer did not interrogate the petitioner and neither took him into custody on the basis of warrant B. On 24.8.2006, a report was submitted by the concerned police station in the court of Chief Judicial Magistrate, Unnao informing therein that the petitioner is named in the FIR and the investigation has been transferred to Zonal SIS, Lucknow. In spite of the report of the concerned police station, the petitioner was not taken into custody in Case Crime No.176 of 2004. As such, he moved an application on 6.9.2006 for being taken into custody in Case Crime No.176 of 2004. THE investigation continued for about three years and despite the application of the petitioner, warrant-B could not be prepared and served upon the petitioner on 28.6.2007 in Case Crime No.176 of 2004. Trial in Case Crime No.176 of 2004 commenced and the petitioner confessed his guilt and upon his confession, he has been convicted under Sections 408, 418, 420 & 468 IPC and sentenced to a maximum period of five years rigorous imprisonment with fine stipulations vide judgment and conviction dated 16.4.2011, which has not been challenged by the State Government or by the complainant before any superior court. THE trial court has proceeded to order that all the sentences shall run concurrently. THE petitioner has already served out about seven years' sentence in jail since 21.5.2004 i.e. from the date of commencement of investigation in Case Crime No.176 of 2004 and he has served out about four years nine months sentence from the date of his own application dated 23.8.2006 for submitting himself to the trial court in Case Crime No.176 of 2004. THE petitioner moved an application on 16.4.2011 before the trial court for setting off his period of detention spent during investigation against maximum sentence awarded to him. THE application dated 16.4.2011 for setting off his detention during investigation has been rejected vide order dated 20.4.2011. Hence this petition. Submission of learned counsel for the petitioner is that it was the duty of the Investigating Officer to have taken the petitioner into custody on the basis of warrant-B. If the Investigating Officer has failed to discharge his duty, then the petitioner cannot be made to suffer for it. It was in the knowledge of the investigating agency as well as in the knowledge of the court that the investigation was proceeding in Case Crime No.176 of 2004 although the petitioner was in jail in the other connected case. The petitioner was already in jail since 25.11.2003 and hence he was entitled for the benefit of set-off. He has placed reliance upon the judgments rendered in the case of Govt. of Andhra Pradesh and another etc. v. Anne Venkateswara Rao etc. etc., 1977 CRI. L. J. 935, Mohan Lal v. The State of U.P. and others, 1981 CRI. L. J. NOC 23. Learned counsel for the opposite parties, on the other hand, has submitted that the petitioner is not entitled for set-off and set-off has rightly been refused to the petitioner. He has placed reliance upon a judgment rendered by the Apex Court on 24.11.2009 in the case of Atul Manubhai Parekh v. Central Bureau of Investigation, 2010 CRI. L.J. 2113. I have heard learned counsel for the parties and perused the record.
(3.) AGAINST the petitioner six FIRs were lodged. He was taken into custody on 25.11.2003. After being taken into custody, investigation also proceeded in Case Crime No.176 of 2004 at District Unnao. The FIR itself disclosed that the petitioner was in detention in Kanpur Jail but in spite of that warrant-B was not procured and neither any effort was made by the Investigating Officer. A report was also submitted in the court of Chief Judicial Magistrate pointing out that the petitioner is named in the FIR and investigation was transferred to Zonal SIS, Lucknow. In spite of the report of the concerned police station, the petitioner was not taken into custody through warrant-B. All the FIRs were lodged simultaneously and it is to be noted that they were in respect of the same series of transaction. The petitioner made several applications for taking him into custody on the basis of warrant-B but his application was never allowed. First application was moved by him on 6.9.2006 for being taken into custody on the basis of warrant-B in Case Crime No.176 of 2004. Investigation continued for about three years. The Investigating Officer did not procure warrant-B. It seems that the Investigating Officer was totally negligent although it was in his knowledge that the petitioner was in custody. Sentence was awarded at Kanpur as well as at Unnao on the basis of confession. The question which falls for consideration is as to whether the said detention during the investigation period in Case Crime No.176 of 2004 has to be taken into consideration or not. Reliance placed by the learned counsel for the opposite parties on the case of Atul Manubhai Parekh (supra), in the facts of the present case, does not apply on account of the reason that the reason given in the said judgment was that a habitual offender may be convicted and sentenced to imprisonment at frequent intervals. If the period of pre-trial detention in various cases is counted for set-off in respect of subsequent conviction where the period of detention is greater than the sentence in the subsequent case, the accused will not have to undergo imprisonment at all in connection with the latter case, that is not the case here. In the present case, six FIRs were lodged simultaneously. Investigation was proceeding. It was in the knowledge of the Investigating Officer that the petitioner is in jail, in spite of that he did not procure warrant-B and so, for the negligence of the Investigating Officer, the petitioner cannot be made to suffer. Reliance placed by the learned counsel for the petitioner upon the case of Govt. of Andhra Pradesh and another etc. v. Anne Venkateswara Rao (supra) deals with the identical situation where a person was found to be under preventive detention and his period of detention was not set-off, then the Apex Court laid down the proposition of law in paragraph-8 of the aforesaid judgment, which is reproduced hereunder:- "8. There is however substance in the other point raised by the writ petitioners regarding the computation of the period during which the writ petitioner in each case should be held to have suffered imprisonment on conviction. In A.V. Rao's case (W.P.1865/76), he was already in detention under the Preventive Detention Act when the First Information Report was lodged on December 18, 1969 in connection with the sessions cases. Some of the co-accused in these cases were arrested and produced before the Magistrate for remand on December 19, 1969, but Rao was produced before the Magistrate sometime in April, 1970 after he was released from preventive detention. It was argued that he also could have been produced before the Magistrate for remand on December 19, 1970. On behalf of the respondent, State of Andhra Pradesh, it was contended that as Rao was already in detention under the Preventive Detention Act, it was not possible to produce him before the Magistrate for remand until the period of preventive detention was over. We do not find any justification in law for the position taken up by the State. Rao being already in custody, the authorities could have easily produced him before the Magistrate when the First Information Report was lodged. Nothing has been pointed out to us either in the preventive detention law or the Code of Criminal Procedure which can be said to be a bar to such a course. That being so we think that the claim that the entire period from December 19, 1969, when many of the co-accused were produced before the Magistrate, to April 18, 1970 should be treated as part of the period during which Rao was under detention as an undertrial prisoner, must be accepted as valid. A.V. Rao's appeal No.484 of 1976 is allowed to this extent." ;