- (1.) M. M. Husain, J. The two petitioners, namely Shaboo and Ranga alias Israil, are detained in the District Jail of Bahraich for serving out con current sentences of six months R. I. under Section 325/149 I. P. C. and three months' R. I. under Section 147 I. P. C. awarded to them in Sessions Trial No. 89 of 1979, of the Sessions Division of Bahraich. Their contention in this petition moved under Article 226 of the Constitution of India is that after crediting the period during which they have remained in jails as undertrial in connection with Other crimes, they have already served out the sentences awarded to them in the aforesaid Sessions Tiral. Their prayer, therefore, is that a writ in the nature of habeas corpus or any other appropriate writ, order or direction be issued to the opposite parties to set them at liberty forthwith as their detention in jail is now illegal.
(2.) ONE Jitendra Singh lodged a first information report against the two petitioners at P. S. Kotwali Bahraich on 27-8-1978. A case under Sections 147 and 323/149 I. P. C. bearing Crime No. 409 of 1978 was registered against them on the basis of that report. The said case, when sent up for trial, was regis tered as S. T. No. 89 of 1979. Both the petitioners surrendered themselves in Court as soon as the case was registered against them. They were immediately bailed out and remained on bail till convicted by the trial Court on 11-4-1980. Even after their conviction they were granted interim bail by the trial Court. They filed Criminal Appeal No. 244 of 1980 in this Court against their conviction. They remained on bail during the pendency of the appeal also which was ultimately dismissed on 25-9-1981, and the two sentences of six months and three months' R. I. respectively, awarded to them by the trial Court for offences under Sections 325/149 and 147 I. P. C. were confirmed. After the confirmation of their sentences by this Court Shaboo was taken into custody on 5-12-1981, whereas Ranga surrendered himself on 7-12-1981. Both of them are in jail since then. Besides the aforesaid case, the two petitioners were also involved in "three other cases, namely, crime Nos. 562 of 1978, 528 of 1979 and 448 of 1981. They were taken into custody in connection with these cases and bailed out on different dates. In connection with Crime No. 562 of 1978 Shaboo remained in jail from 18-10-1978 to 5-12-1978 for forty-nine days, whereas Ranga remained in jail for sixty-one days from 3-11-1978 to 3-1-1979. Shaboo remained in jail for fifty-nine days i. e. from 18-9-1979 to 16-11-1979 in connection with Crime No. 528 of 1979, whereas Ranga remained in jail from 11-1-1978 to 28-2-1980 i. e. for sixty-one days in connection with that case, Shaboo again remained in jail for a total fifteen days in two instalments i. e. , from 25-9-1981 to 6-10-1981 and 12-10-1981 to 14-10-1981 in connection with Crime No. 484 of 1981, whereas Ranga remained in jail for twenty days;i. e. from 25-9-1981 to 14-10-1981 in connection with that crime. The petitioners contend that in connection with the sentences awarded to them in S. T No. 89 of 1979 they had to remain in jail, at the most, for six months. The periods during which they remained in jail in connection with Crimes No. 562 of 1978, 528 of 1979, and 484 of 1981, should be credited towards their sentences awarded in S. T. No. 89 of 1979, as laid down by Section 428 Cr. P. C. and after that set off they have already served out those sentences and should no longer be detained in jail.
(3.) THIS petition had earlier come up for hearing before a Bench consisting of H. N. Seth and S. S. Ahmad, JJ. Reliance was placed before their lordships upon two Bench decisions of this Court, namely Nasim v. State of U. P. ( 1978 A. W. C. 833), decided by Hari Swamp, J. and one of us, and, Onkar Singh v. Police Officer Prashashan (1979 A. W. C. 277), decided by Hari Swarup and U. G. Srivastava, JJ. In Nasim's case (supra) reliance was placed upon the Supreme Court's decision in Govern ment of Andhra Pradesh v. Anne Tenkateshwar Rao (A. I. R. 1977 S. C. 1096) The learned Judges who had earlier heard this petition came to the con clusion that in Government of A. P. v. A. V. Rao (supra) the Supreme Court, by a process of reasoning had held that in certain circumstances the period of deten tion in some other context can also be treated as period of sentence in connection with a case in which a person had eventually been convicted and the said period can be set-off against the sentence awarded to him. They further held that in their opinion detention in connection with some other case could not be consider ed or treated as a detention in connection with the case in which he had eventu ally been convicted and no question of setting off the period of detention in con nection with other case against the sentence awarded to him could possibly arise. The Hon'ble Judges referred the matter to a larger Bench with the following observation: "as in our opinion the views taken by Hari Swarup and D. N. Jha, JJ. in Nasim's case (supra) and that taken by Hari Swarup and U. C. Srivastava, JJ. in Onkar Singh's cass (supra) requires reconsideration, we direct that the papers be laid before the Hon'ble the Chief Justice for constituting a larger Bench to decide this petition " We are thus required to consider the intent and scope of Section 428 Cr. P. C. in the light of the Supreme Court's decision in Government of A. P. v. A. V. Rao (supra) and the two aforesaid Bench decisions of this Court in Nasim v. State (supra) and Onkar Singh v. Police Officer Prashashan (supra ).;