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Chattisgarh High Court

Upendra Singh @ Kabra vs State Of Chhattisgarh on 13 April, 2026

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               HIGH COURT OF CHHATTISGARH AT BILASPUR

                            WPCR No. 481 of 2025

Upendra Singh @ Kabra S/o Ambika Prasad, Aged About 60 Years At
Present, Convicted Prisoner No. 2052/136, R/o Village - Belma, Police
Station - Khijar Saray, District - Gaya, State - Bihar.
                                                              --- Petitioner(s)
                                     versus
1 - State Of Chhattisgarh Sector-19, Atal Nagar, Nawa Raipur (C.G.)
2 - Director General (Prison), Jail And Correctional Services, Sector-19,
Atal Nagar, Nawa Raipur (C.G.)
3 - Superintendent Of Jail, Central Jail, Bilaspur, District - Bilaspur (C.G.)
4 - Collector, Bilaspur, District - Bilaspur (C.G.)
5 - Superintendent Of Jail, Central Jail, Durg, District - Durg (C.G.)
6 - Collector, Durg, District - Durg (C.G.)
                                                            --- Respondent(s)

(Cause Title Taken from Case Information System) Order Sheet

13/04/2026 Heard Mr. S.C.Verma, learned Senior Advocate assisted

by Ms. Katyayani Vishnupriya and Mr. Chandrabhushan

Kesharwani, Mr. Naqeeb, Mr. Manharan Lal Sahu, learned

counsel for the petitioner. Also heard Mr. Nitansh Jaiswal, learned

Deputy Government Advocate for the State/respondents.

Mr. Verma, learned Senior Advocate appearing for the

petitioner submits that the petitioner has undergone more than

the period for which he was sentenced and as such, the petitioner

may be released from jail and he may also be compensated for

the wrongful confinement.

It is submitted by Mr. Verma that the petitioner was

prosecuted for Crime No. 233/2001 registered at Police Station

Bhilai-3 for the offence under Section 120-B, 364-A, 344, 346,

394 and 395 of IPC which was registered as Session Trial No.

181/2002 wherein learned 4th Additional Sessions Judge, Durg

passed judgment of conviction and sentences on 23.05.2007

and sentenced as 5 years, life imprisonment, 1 year, 7 years,

rigorous imprisonment respectively and fine amount of Rs.

5000/-, 1,00,000/-, 2000/- 50,000/-, and in default of payment of

fine amount, 1 year, 3 years, 3 months, 1 year rigorous

imprisonment, was awarded. With respect to Crime No. 233/2001

and Session Trial No. 181/2002, the petitioner has served his

total sentences of life imprisonment and by the order of remission

of remaining sentence from respondent State, the petitioner has

been released on 16.08.2022. The petitioner was first time

arrested on 29.07.2001 in connection with Crime No. 233/2001

registered at Police Station Bhilai under Section 120B, 364A,

344, 346, 394 & 395 of IPC and remained till 22.05.2007 as an

under trial prisoner. On dated 22.05.2007 petitioner escaped from

custody and surrendered on 10.02.2010. Meanwhile on

23.05.2007, the learned Trial Court passed judgment of

conviction and sentence in Crime No. 233/2001. The petitioner

again escaped from custody on dated 06.02.2013 and rearrested

on dated 26.03.2013. Till now, the petitioner is in jail. Total period

undergone by the petitioner is 21 years. The respondent State

registered cases against the petitioner for escaping from custody

and committing another offences of similar nature, hence the

competent Court i.e. learned Additional Session Judge, Durg

passed its judgment of conviction and sentences in S.T. No.

130/2013, 121/2013, 276/2013 for offence under Section 120B,

224, 332 (4 counts) of IPC and section 395 read with 397 of IPC

wherein learned Trial Court sentenced the petitioner and passed

an order for all sections directing the sentences to run

concurrently except offence under section 395 read with 397 of

IPC,. The relevant portion of the judgment dated 24.04.2018,

reads as under:

"यह न्यायालय आरोपी उपेंदर् उर्फ कबरा को दी गई भारतीय दंड संहिता की धारा

120 बी, 224, 332 (4 बार), 150 (2 ख) एवं धारा 146 रेलवे अधिनियम की सजा

साथ-साथ चलेगी किंतु भारतीय दंड संहिता की धारा 395 सहपठित धारा 397 के

अंतर्गत दी गई सजा भारतीय दंड सहिता की धारा 120 बी, 224, 332 (4 बार), 150

ृ क से (2 ख) एवं धारा 146 रेलवे अधिनियम की सजा भुगताये जाने के पश्चात पथ

भुगतायी जावे।"

It is further submitted that the petitioner along with another

co-accused person filed criminal appeal before this Hon'ble Court

which was registered as CRA No. 814/2018 with connected

matter CRA No. 1624/2018, whereby this Hon'ble Court was

pleased to pass its judgment dated 30.04.2019 and partly

allowed the appeal filed by the petitioner and another co-accused

and its paragraph No. 27, offence under Section 150(2B) of

Railway Act has been converted into 150(1)(e) thereby sentences

of life imprisonment has been converted into 6 years which period

has already been undergone and the Hon'ble Court pleased to set

off the sentences, which was under gone by the petitioner. The

petitioner again filed CRMP before this Hon'ble Court for

considering the matter under Section 428 of Cr.P.C for setoff

imprisonment already undergone by the petitioner which was

registered as Cr.M.P No. 251/2021 and 2749/2019, however,

both the petitions were dismissed on dated 17.05.2021 and

15.01.2021 respectively. The petitioner filed SLP before Hon'ble

Apex Court challenging both the orders of this Hon'ble Court

which was registered as Diary No. 23810/2021, however, the

Hon'ble Apex Court was pleased to dismiss the said SLP on

13.07.2023.

Mr. Verma submits that the petitioner has remained in jail

since 29.07.2001 and served his total actual sentences of about

21 years for three cases of similar nature, a part from crime No.

233/2001, meanwhile on 16.08.2022 petitioner was released from

custody after getting remission of remaining sentence from

respondent State but petitioner is in jail for serving his another

offences of under Section 395 read with section 397 of the IPC,

which was imposed upon petitioner on 24.04.2018, which is being

run concurrently. The petitioner served his sentence of under

Section 395 read with 397 of IPC after passing conviction and

sentence dated 24.04.2018 and in total 7 years and 3 months

which is exceeding sentences which was imposed upon him

because respondent authorities are wrongly calculating the

sentences of the petitioner and have kept him in imprisonment

which amounts to wrongful confinement of the petitioner. As on

date, respondent authorities have detained petitioner in

imprisonment by wrongly calculating or misinterpreting the

judgment of conviction and sentences imposed upon the

petitioner. Whereas similar situated another 5 co-accused have

been released after completion of sentences imposed upon them

except the petitioner. The petitioner is also entitled for release

under Rule 359 of Jail Manual, 432 of the Cr.P.C and the Prisoner

Release on Probation Act, 1954, Rule 1962 but the respondent

authorities are sitting idle in case of petitioner. The petitioner

obtained remission of near about 7 years apart from actual

sentences imposed upon petitioner. Total year of sentences

served by the petitioner including obtained remission is near

about 27 years but he has not been released by the respondent

authorities.

Mr. Verma submits that as per the calculation made by the

respondent authorities, the petitioner would be released from jail

only ion 16.08.2029. Mr. Verma places reliance on the judgment

of the Apex Court in State of Maharashtra v. Najakat Ali

Mubarak Ali {(2001) 6 SCC 311} and The Superintendent of

Prison & Another v. Venkatesan @ Senu @ Srinivasan @

Bhaskaran @ Radio @ Prakasam {Cr.A. No. 1371/2025,

decided on 22.04.2025}.

Mr. Verma lastly submits that though he has not filed any

formal interim application seeking release of the petitioner on bail,

he prays that if this Court deems fit, as this petition may take

some time for its final disposal, till then, the petitioner may be

released on bail on the terms and conditions as may be deemed

appropriate.

On the other hand, Mr. Nitansh Jaiswal, learned Deputy

Government Advocate appearing for the respondent/State,

placing reliance on the return filed, submits that the petitioner is

not entitled to any relief, whatsoever.

Section 428 of the Cr.P.C. states that the period of

detention undergone by an accused during investigation, inquiry

or trial shall be set off against the term of imprisonment imposed.

The contention of the learned counsel for the petitioner is that the

respondents appear to have been miscalculating the period

because the petitioner has multiple convictions.

A three-Judge Bench of the Apex Court, in Najakat Ali

Mubarak Ali (supra), has observed as under:

"18. Reading Section 428 of the Code in the above perspective, the words of the same case are not to be understood as suggesting that the set off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment

in another case also during the said period. The words of the same case were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words."

Further, the said judgment has been considered by the

Apex Court in in Venkatesan (supra), which has further been

referred to the Larger Bench. The relevant paragraphs of the said

judgment reads as under:

"10. However, we do not wish to allow the appeal only on the above ground. This appeal involves a serious question as to proper interpretation of Section 428, Cr. PC, notwithstanding that there are at least half a dozen decisions on such provision. As the narrative hereafter would unfold, interpretation of Section 428, Cr. PC is not found to be consistent and an authoritative decision seems to be the need of the hour.

xxx xxx xxx

20. Najakat Alia Mubarak Ali (supra), with all its shortcomings, is still a decision of a three-Judge Bench and, therefore, would obviously bind us as a precedent.

xxx xxx xxx

29. Consistency, certainty, predictability and finality of judicial decisions are the hallmarks of a sound justice delivery system. The relevance and significance of the principle of stare decisis have

to be borne in mind. In situations such as this, the Court has to satisfy itself that for the public good or for any other compelling reason an endeavour needs to be made so that certainty and continuity in interpretation of law are maintained. Najakat Alia Mubarak Ali (supra) was considered in Maliyakkal Abdul Azeez (supra) and Atul Manubhai Parekh (supra). The coordinate Benches have not followed the majority view in Najakat Alia Mubarak Ali (supra).

In view of our inability to reconcile the divergent views expressed in Najakat Ali Mubarak Ali (supra) itself and though such decision has been held in Atul Manubhai Parekh (supra) to be confined to its facts, under compelling circumstances, we feel it prudent to refer the matter to the Hon'ble the Chief Justice of India to consider the desirability of constituting a Bench of appropriate strength for proper interpretation of Section 428, Cr. PC. Ordered accordingly.

30. The direction for set-off in the impugned order shall remain stayed until further orders; however, if Venkatesan has been released, he may not be taken back in custody."

Considering the facts situation of the case that the

petitioner has already served/remain in custody for a substantial

period of more than 7 years and with respect to the issue in hand,

the judgment rendered in Najakat Ali Mubarak Ali (supra) holds

the field as on date, we deem it proper that in the peculiar facts

and circumstances, the petitioner, who is presently lodged in jail

and serving out the sentence awarded to him in S.T. No.

130/2013, 121/2013 and 276/2013, vide judgment dated

24.04.2018, which further stood modified by the judgment dated

30.04.2019 passed by a Division Bench of this Court in Cr.A. No.

814/2018 and connected matters, be released on bail on his

executing bail bond with two heavy local sureties (one of the