- (1.) HARI Swarup, J.:-This petition has been filed under Article 226 of the Constitution for a writ in the nature of habeas corpus. The petitioner, according to him, was arrested in 1972 and was released on bail on 10-7-1975 in connection with a crime which ultimately came to court in the form of Sessions Trial No. 283 of 1973. The petitioner was again arrested on 15-2-1976 in connection wit! another case. The petitioner was involved in some other criminal cases also. All of them ended without a conviction on 9-6-1976. The petitioner was convicted in Sessions Trial No. 283 of 1973 on 28-2-1978 and was sentenced to rigorous imprisonment for five years.
(2.) THE petitioner's contention is that while counting the period of sentence undergone by the petitioner the period between 15-2-1976 to 12-6-1976 had not been counted even though he was entitled to its being set off under Section 428 CrPC. Learned Government Advocate appearing on behalf of the State has contended that the petitioner is not entitled to the ret off of this period because he was arrested and kept in detention during this period not because of the trial of Sessions Trial No. 283 of 1973 in which the petitioner had been granted bail, but in respect of other crimes. According to him such a case is not covered by Section 428 CrPC. The contention of the learned Government Advocate is that for getting the benefit of Section 428 CrPC the convicted person must be kept in jail on being arrested in connection with that case only and the period which he is made to suffer because of his arrest in connection with another case will not be liable to be set off under Section 428 CrPC. Section 428 of the Code of Criminal Procedure runs as under :- "Where an accused person has, on conviction, been sentenced to imprisonment for a term, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed or. him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of the imprisonment imposed on him." It is not denied that the period 15-2- 1976 to 12-6-1976 falls within the period of inquiry or trial of the petitioner for the offence in respect of which the petitioner was ultimately convicted on 28-2-1976 and sentenced to five years' rigorous imprisonment. In Section 428 the words "during the investigation, inquiry or trial" refer only to the period the trial had continued. If an accused person is ultimately convicted then any period spent by him in prison during this span of time will have to be set off against the term imposed on him ultimately. We find no justification for reading the words "on account of" in Section 428 CrPC as suggested by the learned Government Advocate. Section 428 CrPC refers only to the period of time and not to the causation or reason for the person's remaining in jail. In the case of Govt. of A. P. v. A. V. Rao, AIR 1977 SC 1096 the convicts had not even been arrested in respect of offences for which they were ultimately convicted but had to remain in jail during the period of investigation, inquiry and trial because of their being kept in detention under the Preventive Detention Act, still it was held by the Supreme Court that the convicts will be entitled to get the benefit of Section 428 CrPC it was observed :- "...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 under-trial prisoner, must be accepted as valid." A similar view was taken in respect of N. V. Krishnaiah also in the same case. It cannot, therefore, be held that because during the enquiry or trial of Sessions Trial No. 283/73 the petitioner was arrested in connection with another crime the petitioner will not get the benefit of Section 428 CrPC.
(3.) EVEN on the assumption that the contention of the learned Government Advocate were correct, the petitioner would be entitled to the set off claimed by him because the petitioner was initially arrested in connection with the same case in which he was ultimately convicted and sentenced. He was granted bail in that case but was arrested on 15- 2-1976 in connection with another case. As soon as he was arrested the bail stood cancelled. Hence the petitioner had to be deemed to be in custody even in connection with Sessions Trial No. 283 of 1973 which ultimately ended in his conviction. It is contended by the learned Government Advocate that the custody cannot be deemed to be in respect of two matters simultaneously. We do not find that the case, Govt. of A. P. v. A. V. Rao (Supra) relied upon by him lends support to his contention ; rather it goes against the point he has urged. It was observed in that case : "......As regards the alleged anomaly of a mas having to suffer two kinds of detention at the same time, one preventive and the other punitive, we do not find this to be a valid objection. The position is not different from the case where a man is sentenced on different counts to a term of rigorous imprisonment and another term of simple imprisonment and the sentences are directed to run concurrently...... If that be so, there can be no bar to the preventive and punitive detentions continuing simultaneously." If it is possible for a person to get the benefit of Section 428 CrPC during the period of preventive detention, we see no reason why a person who is wanted in two criminal cases and remains in jail in connection therewith, benefit cannot be given to him under Section 428 CrPC in respect of the case which ultimately ends in his conviction and award of sentence of imprisonment. ;