- (1.) In this writ application the petitioner has prayed for quashing the order dated 18-2-2005 passed by Shri. P.G. Prasad, the J.M. Jamtara in T.R. No. 1182/ 95 whereby, upon receipt of the judgment of the Appellate Court, the Court below has issued non-bailable warrant of arrest against the petitioner for serving the sentence and has also issued notice to the bailers.
(2.) The grievance of the petitioner is that in course of trail and before the his conviction he was in custody from 12-3-05 to 11-6-05 i.e. for a period of three months and his sentence being R.I. for three months, he is entitled for set off against the term of the imprisonment and as such the order issuing the warrant of his arrest is illegal and without jurisdiction. Notice was issued to the O.P. No. 2 who has appeared and filed a counter affidavit stating, inter alia, that the petitioner was convicted under Section 379 I.P.C. and was sentenced to undergo R.I. for a period of three months. Thereafter, he preferred Cr. Appeal No. 11/1996 of 2001 and in the said appeal the judgment of the Appellate Court was communicated to the Court below for executing the sentence and as such the Court below is duty bound to issue warrant of arrest against the petitioner for serving the sentence. It has been further stated that since the petitioner after his conviction and dismissal of the appeal has not surrendered in the Court, benefit under Section 428 Cr.P.C. cannot be given to him. It has been submitted that if the petitioner appears before the Court after confirmation of his conviction by the Appellate Court for serving the sentence, he shall be given benefit of the provisions laid down under Section 428 Cr. P.C.
(3.) Section 418 of the Code of Criminal Procedure provides procedure for execution of the sentenced of imprisonment, as thus:- Sec. 418 Execution of sentence of imprisonment- (1) Where the accused is sentenced to imprisonment for life or to imprisonment for a term in cases other than those provided for by Section 413, the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is already confined in such jail or other place, shall forward him to such jail or other place, with the warrant: Provided that where the accused is sentenced to imprisonment till the rising of the Court, it shall not be necessary to prepare or forward a warrant to a jail and the accused may be confined in such place as the Court may direct. (2) Where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in sub-section (1), the Court shall issue a warrant for his arrest for the purpose of forwarding him to the jail or other place in which he is to be confined; and in such case, the sentence shall commence on the date of his arrest.;