Allahabad High Court
Budhai vs State Of U.P. Thru. Prin. Secy. ... on 4 August, 2023
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:51736
Court No. - 12
Case :- APPLICATION U/S 482 No. - 3727 of 2023
Applicant :- Budhai
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrt. Lko.
Counsel for Applicant :- Upendra Prakash Pathak
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Singh,J.
1. In pursuance of the earlier order dated 24.07.2023, Mr. A.K. Singh, D.I.G. Headquarter, Prison, Mr. Subedar Yadav, Jailer, Central Jail, Varanasi as well as Mr. Shailesh Kumar Singh, Deputy Jailer, Headquarter are present before this Court.
2. Heard learned counsel for the applicant, Shri V.K. Singh, learned Government Advocate assisted by Shri Ran Vijai Singh, learned A.G.A. for the State and perused the material brought on record.
3. This application has been filed for quashing the order dated 27.03.2023 passed in S.T. No. 93 of 2005 arising out of Case Crime No. 42 of 2005, under Section 8/21 NDPS Act, P.S. Badosarai, District Barabanki with the further prayer to direct the Senior Superintendent, Central Jail, Varansi to release the applicant.
4. Learned counsel for the applicant submits that applicant was wrongly detained in jail after issuance of his release order dated 13th September, 2022 passed in Jail Appeal No. 902 of 2021 in relation to S.T. No. 336 of 2006 arising out of Case Crime No. 12 of 2005, under Section 376 I.P.C. and Section 3(2)(v) of SC/ST Act, P.S. Badosarai, District Barabanki. It is further submitted that the applicant was convicted in aforesaid case on 11.03.2008 and was awarded life imprisonment with fine of Rs.10,000/-, in default of payment of which, he was to further undergo R.I. for one year. Thereafter, the applicant was convicted in present Special Trial No. 93 of 2005 (supra) vide order dated 14.05.2008 for a period of 10 years with fine of Rs.1 lac, in default of payment of which, he was to further undergo R.I. for two years.
5. Submission of the learned counsel for the applicant is that the applicant had served out the sentence in the present case on 28.04.2016 and thereafter, in default of payment of fine amount, he also served out two years of rigorous imprisonment, as awarded by the court below. Later on, the applicant was released on bail in the aforesaid Jail Appeal No. 902 of 2021 arising out of S.T. No. 336 of 2006 on 04.08.2022 and release order was issued on 13.09.2022, but the applicant was not enlarged and was informed that he has to deposit the fine amount of Rs.1 lac, as ordered in the present case. It is further submitted that the applicant deposited Rs.1 lac on 27.04.2023 and thereafter, he was enlarged on bail. It is vehemently submitted that the applicant was wrongly confined by the jail authorities after being enlarged on bail and depositing of fine amount, therefore, he is entitled for compensation.
6. Shri V.K. Singh, learned Government Advocate, while drawing the attention of the Court towards the provisions of Section 429(2) Cr.P.C. as well as Para 40 of the U.P. Jail Manual, submits that as the applicant was serving out the sentence in relation to judgment and order dated 11.03.2008 passed by the Sessions Judge in S.T. No. 336 of 2006, under Section 376 I.P.C. and Section 3(2)(v) of SC/ST Act , in which, life imprisonment was awarded. In the meantime, the applicant was also convicted in the present case on 14.05.2008 and both the sentences were undergoing concurrently. It is also submitted that the applicant was enlarged on bail in aforesaid Jail Appeal No. 902 of 2021 on 04.08.2022 and the release order was issued on 13.09.2022, but due to default in payment of fine in the present case, the applicant could not be enlarged.
Submission of the learned Government Advocate is that initially the applicant was serving out the substantive sentence for the punishment of life imprisonment for the offence under Section 376 I.P.C. and Section 3(2)(v) of SC/ST Act in pursuance of the order passed by the Additional Sessions Judge, Barabanki in S.T. No. 336 of 2006 dated 11.03.2008 and thereafter, the applicant was convicted in the present case on 14.05.2008. As both the substantive sentences were going concurrently, after completion of the substantive sentence in S.T. No. 336 of 2006, the sentence in relation to default of fine has to be counted, but in the present case, as the life imprisonment was serving out by the applicant, therefore, the argument of learned counsel for the applicant has no force and there is no illegality in not enlarging the applicant. In support of his argument, learned Government Advocate draws the attention of the Court towards the decision of the Bombay High Court in case of Emperor Vs. Punjabi Lalaji Thakerda, 1939 ILR 160 and submits that identical question was answered by the High Court.
7. It is lastly submitted that the applicant served out sentence after 13th September, 2022 upto 27.04.2023 in default of payment and the fine of Rs.1 lac was deposited by him on 27.04.2023 therefore, the applicant is only entitled for refund of the amount in the ratio of the period, he had already served out the sentence. Learned Government Advocate fairly submits that the said amount shall be calculated by the jail authorities and the same shall be refunded to the applicant, forthwith.
8. Considering the arguments advanced by the learned counsel for the applicant, learned Government Advocate and going through the contents of the application, impugned order as well as other relevant documents, it is undisputed fact that the applicant was not entitled for release in the present case, until he deposits the fine or serve out the sentence in default of fine. Admittedly, the applicant served out sentence for the default of fine after 13th September, 2022 upto 27th April, 2023, on which date, he deposited the fine of Rs.1 lac.
In view of above, the jail authorities are directed to calculate the entitlement of the refund of amount for the aforesaid period to the applicant and communicate the same to him. It is further directed that the said calculation/report shall also be placed before the court below, who, in turn, is directed to pass appropriate order for refund of the amount, so calculated.
9. With the aforesaid observations, the application stands disposed of.
10. Jail Appeal No. 902 of 2021 is hereby de-linked and may be listed before the appropriate Bench.
Order Date :- 4.8.2023
VKS
