Hon'ble Abhai Kumar, J.
The present habeas corpus petition has been preferred on behalf of Permeshshwar Das alias Parmeshwari Das and Dattar Singh, resident of Village Ganeshpura, Police Station Babina, District Jhansi.
Counsel of the petitioners submitted that the petitioners were convicted and sentenced by the trial court vide judgement and order dated 08.05.1991 passed by 2nd Additional Chief Judicial Magistrate, Jhansi in Criminal Case No. 454 of 1990 (State Vs. Parmeshwari) under Section 323 of six months rigorous imprisonment, under Section 452 I.P.C three months rigorous imprisonment with fine for a sum of Rs. 200/- and in default one month further imprisonment and under Section 506 I.P.C one month rigorous imprisonment with direction that all the sentences shall run concurrently.
They preferred an appeal against the judgement and order of conviction which was dismissed. Against that a criminal revision was preferred which was also rejected on 07.08.2015. Thereafter the petitioners were directed to be taken into custody. They were sent to jail on 30th November, 2015. They were in jail for about 17 days after conviction and after dismissal of appeal. Hence they have completed maximum sentence of six months awarded under Section 323 I.P.C. However in spite of completing the period of sentence, they were not released by the jail authority. Hence the present petition dated 13.05.2016 was filed before this Court. He further contended that even the fine was deposited on 04.04.2015. Photocopy of the receipt has been annexed as annexure no. 4 to the writ petition. Hence the detention of the applicants for more than six months period is illegal and as such the present habeas corpus petition is liable to be allowed with cost. A direction be issued to the concerned authorities to release the petitioner forthwith.
Learned A.G.A for the State opposed the prayer and contended that the judgment is of May, 1991. He submits that there was no communication to the jail authorities that all the sentences should run concurrently. Copy of the judgement was not provided, hence there is no mistake on part of the respondents.
We have considered the submissions made on behalf of both the parties.
From perusal of the impugned judgement, it is clear that both the petitioners were convicted and sentenced under Section 323, 452, 504 and 506 I.P.C. The maximum period of sentence awarded is six month R.I. under Section 323 I.P.C and in other Section the period of sentences are three month and one month's R.I. Under Section 452 I.P.C sentence awarded is three months R.I. It is not disputed that a fine for a sum of Rs. 200/- has already been deposited by the petitioners on 04.04.2016.
In para 10 of the writ petition it has been mentioned that petitioners were in jail for 17 days after conviction by the trial court after and the appeal was dismissed by the lower appellate court and thereafter they are continuously in jail since 30.11.2015.
The petitioners were in jail since 30.11.2015 and earlier they were in jail for 17 days. Thus both the petitioners have completed six month imprisonment. Hence in view of the above, they should have been released after 14th May, 2016, and after that judicial custody thus is illegal.
In counter affidavit filed by Sri A.K. Mishra, Senior Superintendent, District Jail, Jhansi it has been stated that when the warrant was issued in the District Jail there was no communication that the sentence awarded in different Sections would run either concurrently or separately. Since it was not mentioned in the warrant, hence he has to serve out the sentences separately. After getting the information vide letter dated 23.05.2016 when the request was made to provide a copy of judgement dated 08.05.1991, it was informed that the record has already been weeded out on 16.06.1997. The report was that due to mistake the record was weeded out.
Hence in view of the above facts and circumstances when the order of conviction and sentence was communicated, complete information was required to be transmitted to the jail authority. Hence the authorities concerned are required to be more cautious in near future. Now even without adjusting the 17 days period, six months sentence has already been completed on 30th May, 2016. Hence if the petitioner has not been released as yet they have to be released forthwith.
Accordingly the present petition hereby is allowed.
Let a copy of this order be supplied to learned Government Advocate, for follow up action.
Order Date :- 31.05.2016.
Vinod.