THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY
WRIT PETITION No.13865 of 2023
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioner, seeking the following relief:
"....to issue a Writ or order or direction more particularly in the nature of WRIT of MANDAMUS declaring the high handed action of the respondent no.2 who did not releasing the prisoner Erpula Ramu @ Velpula Ramu convicted in CC No.1 of 2017 on the file of JFCM at Mahaboobabad dated 21-03-2018 even after completion of conviction sentence are illegal improper arbitrary, unconstitutional, violating the natural Justice and without jurisdiction, depriving the prisoners' rights CONSEQUENTLY, direct the respondents to release Petitioner's son by name Erpula Ramu @ Velpula Ramu from the prisoner from the 2nd respondent Jail forthwith immediate effect without any further delay..."
2. Briefly stated, vide judgment dated 13.01.2016 passed in S.C.No.23 of 2015 by the Special Judge for Trail of cases under POSCO Act-cum-I Additional Sessions Judge, Warangal, Erpula Ramu @ Velpula Ramu, son of the petitioner, was convicted and sentenced to undergo Rigorous Imprisonment (R.I) for Life and to pay a fine of Rs.10,000/- in default to suffer Simple Imprisonment (IDSI) for One (1) month for the offence under Section 376(2)(1)(i)(n) IPC; R.I for three (3) years and to pay a fine of Rs. 500/- IDSI for One (1) month each for the offences under Sections 366-A and 347 IPC, R.I for two (2) years and to pay a fine of Rs.500/-, IDSI for One(1) month for the offence under Section 496 IPC and all the 2 sentences were directed to run concurrently. While the son of the petitioner was undergoing the aforesaid imprisonment, he was convicted and sentenced to undergo R.I for a period of three(03) years for the offence under Section 420 IPC vide judgment dated 21.03.2018 passed in C.C.No.1/2017 by the Principal Judicial First Class Magistrate, Mahabubabad. Since the accused was in judicial custody from 30.11.2015 to till the date of pronouncement of judgment i.e, 21.03.2018, the said period of detention undergone by him was set off under Section 428 Cr.P.C. It is further case of the petitioner that aggrieved by the conviction and sentence passed in S.C.No.23 of 2015 dated 13.01.2016, her son preferred Criminal Appeal No.241 of 2016 on the file of this Court and in the said appeal, this Court vide order dated 10.01.2023 granted bail and the son of the petitioner submitted surety bonds and release orders were also passed. It is further case of the petitioner that as per the conviction orders passed in C.C.No.1 of 2017, the convict prisoner is in judicial custody from 30.11.2015 to till the date of pronouncement of orders i.e, 21.03.2018 and the said period of detention was given set off under Section 428 of Cr.P.C. It is the case of the petitioner that while undergoing life imprisonment, her son being as under trial prisoner participated in the trial in C.C.No.1 of 2017 on the file of Principal Judicial First 3 Class Magistrate, Mahabubabad and while undergoing the sentence of imprisonment for life and convicted and sentenced to undergo R.I for three years, for the offence under Section 420 IPC and three years period shall commence from 30.11.2015 to 29.11.2018 and as such, he is entitled to be released from the jail as both the sentences run concurrently. Therefore, the petitioner made a representation dated 13.05.2023 to the respondent No.2 along with the bail order but the jail authorities failed to release the son of the petitioner under wrong impression that three years sentence period not yet completed and kept the petitioner's son in Jail without any valid reason and the said action amounts to illegal detention of her son. Therefore, the petitioner prays this Court to direct the respondent No.2 to release her son forthwith.
3. A counter affidavit has been filed by the respondent No.2 inter alia stating that petitioner's son-Velpula Ramu, Convict Prisoner No.4631, was received by transfer from Central Prison, Warangal and admitted in Central Prison, Cherlapally, on 10.06.2021 to undergo the following sentences:
i) RI for Life and fine of Rs. 10,000/- IDSI for (1) month U/s376(2)(1)(n) IPC; RI for (3) years and fine of Rs. 500/- IDSI for (1) month each U/s 366-A & 347 IPC, RI for (2) years and fine of Rs. 500/-IDSI for (1) month U/S 496 IPC, (All Sentences Run Concurrently) (fine paid) in S.C. No. 23/2015 in Cr. No. 365/2014, of P.S. Hanmakonda, on the file of the Hon'ble I Addl. District & Sessions Judge, at Warangal, Dt: 13.01.2016.4
ii) RI for (03) years U/s. 420 IPC in C.C. No. 01/2017, on the file of the Hon'ble Principal Judicial First Class Magistrate, Mahabubabad, Dt: 21.03.2018.
It is further stated that as per Section 427 of Cr.P.C., the said conviction and sentence imposed in C.C.No.1/2017 will run concurrently with the initial conviction and sentence of life imprisonment. It is further stated that the said prisoner was released on bail in the first case i.e., S.C.No.23/2015 in Cr.No.365/2014, on 12.03.2023 vide Dis.No.163/2023, Dt:09.03.2023 of the I Addl. District and Sessions Judge, at Warangal, on 12.03.2023. As such, the condition of concurrency as per Sec. 427 of Cr.P.C. could not attract since offences are in different crime numbers.
S.C.No.23/2015 in Cr.No.365/2014
U/s. 376(2)(i)(n), 366A, 347 & 496 IPC
DD.MM.YYYY
Date of Sentence : 13.01.2016
Sentence Awarded (+) : 00.00.0020
_____________
Date of Release : 12.01.2036
Remand Period (-) : 24.03.0000
_____________
Date of Release : 18.09.2035
Released on Bail : 12.03.2023
_____________
It is further stated that the prisoner was involved in other offence in C.C.No.1/2017 under Section 420 IPC, in which the learned Principal Judicial First Class Magistrate, Mahabubabad, had convicted for R.I for three (3) years. Same punishment has begun 5 from 12.03.2023 as per Rule No.231(3) of Telangana State Prison Rules, 1979 as such subsequent conviction and sentence is to be considered for consecutive execution from the date of release in the first case. It is further stated that, in view of the above, the subsequent conviction sentence of three (03) years will commence from 12.03.2023 thereby expiring on 20.11.2023 and the same is detailed as follows.
C.C. No. 01/2017, U/s. 420 IPC
DD.MM.YYYY
Date of Sentence : 12.03.2023
Sentence Awarded (+) : 00.00.0003
_____________
Date of Release : 12.01.2026
Remand Period (-) : 22.03.0002
_____________
Date of Release : 20.11.2023
_____________
It is further stated that in view of the above, the Convict Prisoner No.4631, Velpula Ramu, S/o. Venkanna, was not released from the prison on 12.03.2023, since he was presently undergoing the remaining conviction sentence of three(03) years in C.C.No.01/2017 on the file of the Principal Judicial First Class Magistrate, Mahabubabad, with effect from 12.03.2023 and ultimately prayed to dismiss the writ petition.
4. The learned counsel for the petitioner has vehemently contended that initially, the son of the petitioner was convicted for 6 the offences under Sections 376(2)(i)(n), 366A, 347 and 496 IPC vide judgment dated 13.01.2016 passed in S.C.No.23/2015 and he is undergoing imprisonment of life in Central Prison, Cherlapally and the son of the petitioner was also convicted and sentenced to undergo R.I for three years for the offence under Section 420 IPC vide judgment dated 21.03.2018 passed in C.C.No.1 of 2017 by the learned Principal Judicial Magistrate of First Class, Mahabubabad. It was ordered that since the accused was in judicial custody from 30.11.2015 to till the date of pronouncement of judgment i.e, 21.03.2018, the said period of detention undergone shall be set off under Section 428 Cr.P.C. The learned counsel for the petitioner relying on Sections 427 and 428 Cr.P.C, submitted that three years period which commenced from 30.11.2015 was completed by 29.11.2018 and therefore, the son of the petitioner is entitled to be released from the jail.
5. It is apt and appropriate to extract Sections 427 and 428 of Cr.P.C, which reads as follows:
"Section 427: Sentence on offender already sentenced for another offence:
(i) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence;7
Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
(ii) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
"Section 428: Period of detention undergone by the accused to be set off against the sentence of imprisonment Where an accused person has, on conviction, been sentenced to imprisonment for a term , not being imprisonment in default of payment of fine, 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 on 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.
Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section."
6. A careful reading of sub-Section (2) of Section 427 of Code of Criminal Procedure, makes it abundantly clear that if a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to the imprisonment for a term, or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. Admittedly, in the instant case, the son of the petitioner is in judicial custody since 30.11.2015 in C.C.No.1/2017 on the file of Principal Judicial 8 Magistrate of First Class, Mahabubabad. While the said case is under trial, the son of the petitioner was convicted and sentenced to undergo imprisonment for life vide judgment dated 13.01.2016 passed in S.C.No.23 of 2015. As the son of the petitioner was already in judicial custody, the learned Magistrate ordered that the period of detention undergone by the accused i.e, from 30.11.2015 to till the date of pronouncement of judgment i.e, 21.03.2018, shall be given set off under Section 428 Cr.P.C. It is the case of the petitioner that the balance period of imprisonment, her son has to undergo is only 8 months 9 days. Whereas the respondents contend that since the offences are in different crimes, the sentences imposed against son of the petitioner do not run concurrently and the sentence of R.I for three (3) years imposed on the son of the petitioner in C.C.No.1/2017, has to be considered for consecutive execution from the date of release in the first case and therefore, the son of the petitioner is entitled to be released on 20.11.2023.
7. In the considered opinion of this Court, the version of the respondent No.2 which is impugned in the present Writ Petition is not in accordance with the language employed in Sub-Section (2) of Section 427 of Code of Criminal Procedure. Though an attempt is made by the learned Government Pleader for Home to justify the 9 impugned action, in the considered opinion of this Court, in view of the clear language of Sub-Section (2) of Section 427 of Cr.P.C, the same is not sustainable. A reading of sub-Section (2) of Section 427 of Cr.P.C makes it abundantly clear that if a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to the imprisonment for a term, or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. Admittedly, in this case, the son of the petitioner is a life convict and therefore, when a person is sentenced to imprisonment for life, the said sentence is for the whole of the remaining period of the convict's life and the question of any convict serving the other sentences after the expiry of the sentence of life imprisonment is not possible and therefore, the provisions of Section 427(2) Cr.P.C have to be given a harmonious interpretation so that the absence of any specific order or direction to the effect that the other sentences imposed shall run concurrently with the life sentence awarded, does not make any difference. As the son of the petitioner was in judicial custody from 30.11.2015 to till the date of pronouncement of judgment i.e, 21.03.2018, in view of the orders passed in C.C.No.1 of 2017, the said period of detention was set off under Section 428 Cr.P.C and as the balance period of imprisonment 10 being run concurrently with the life imprisonment, this Court is of the opinion that the son of the petitioner is entitled to be released forthwith.
8. For the aforesaid reasons, the Writ Petition is allowed declaring that the sentence imposed in C.C.No.1 of 2017 vide judgment dated 21.03.2018 passed by the Principal Judicial First Class Magistrate, Mahabubabad, shall run concurrently with the sentences imposed in S.C.No.23 of 2015 vide judgment dated 13.01.2016 passed by the Special Judge for Trail of cases under POSCO Act-cum-I Additional Sessions Judge, Warangal, and consequently, the detenu-Erpula Ramu @ Velpula Ramu, is entitled to the benefit arising out of the same and the respondent No.2 is directed to take action accordingly, forthwith. There shall be no order as to costs.
Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed. No order as to costs.
___________________________ C.V. BHASKAR REDDY, J Date: 13.10.2023 scs