- (1.) Correctness of the view taken by Single Bench of this Court in Joginder Singh V. State of Haryana etc. , Criminal Writ Petition No. 1494 of 2010 decided on 14.01.2011 (Annexure P-1) having been doubted by a Coordinate Bench in the instant case, that the matter has been referred to this larger Bench. Following are the points of reference to be considered by us:- (a) When the sentence of a convict shall commence? (b) Whether the period undergone by an accused as under-trial can be taken into consideration for awarding remissions or not? (c) Whether the period undergone by an accused as an undertrial is to be considered as a part of the sentence or not?
(2.) The ratio of law laid down in Joginder Singh's case , as evident from the relevant paragraph, is as under:- "4. The solitary submission made by learned counsel for the petitioner is that the total sentence of the petitioner should be considered to be the period he has undergone during trial and after conviction and thereafter, he should be allowed remission as per paragraph 645 of the Punjab Jail Manual. Section 428 of Code of Criminal Procedure envisages that the period of detention, if any, undergone by an accused during the investigation, inquiry or trial before the date of conviction, shall be set o against the term of imprisonment imposed upon 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 imprisonment imposed on him. Thus, Section 428 of the Code mandates that sentence includes the period undergone by an accused during the trial also.
(3.) It would be necessary to give brief facts of the present case to understand the controversy:- "Dharam Pal alias Swami Kalyani petitioner was named as an accused in a case FIR No. 65 dated 29.03.2003 registered at Police Station Mahesh Nagar, Ambala under Sections 376 and 506 IPC. The Court of Additional Sessions Judge, Ambala held the petitioner guilty of offences punishable under Sections 376 and 506 IPC and sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 2,000/- under Section 376 IPC and further to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 500/- under Section 506 IPC. Both the sentences were ordered to run concurrently. The aggrieved petitioner filed Criminal Appeal No. 1153-SB of 2005, which was dismissed by this Court vide order dated 24.02.2010. ;