Kedar Paswan vs The Union Of India Through Cbi /Spe ...
2022 Latest Caselaw 414 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        Cr. M.P. No. 15 of 2022

              Kedar Paswan                          ...         Petitioner
                                         Versus

             The Union of India through CBI /SPE /Ranchi& Ors.
                                                ...    Opposite Parties


          Coram:    HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

         For the Petitioner            : Mr. Ajit Kumar, Sr. Adv.
                                         Ms. Akriti Shree, Adv.
         For the CBI                   : Mr. Rohit Sinha, Adv.
         For the Opposite parties      : Mr. Priya Shrestha, Spl. P.P.




04 / 11.02.2022           Heard the parties through Video Conferencing.
                          This criminal miscellaneous petition has been filed
              under section 482 Cr.P.C by the petitioner with a prayer for passing
              appropriate orders for release of the petitioner from custody.
                         Learned senior counsel for the petitioner submits that
             vide Judgment dated 18.11.2021 in Cr. Appeal (SJ) No. 457 of 2019,
             this Court has modified the order of sentence passed by the trial
             court and has categorically ordered that in case, the appellant-
             convict who is the petitioner herein, deposits the fine amount of Rs.
             15,000/-, he shall be released from custody forthwith unless his
             detention is required in any      other case and the petitioner has
             deposited Rs. 15,000/- bearing memo no. 1539 dated 24.11.2021 but
             due to the wrong interpretation done by the appropriate authority,
             the petitioner is not being released and unlawfully kept in custody
             in gross violation of the said judgment dated 18.11.2021 passed by
             this court. It is further submitted by learned senior counsel for the
             petitioner that the petitioner is not wanted or in custody in
             connection with any other case. It is further submitted that the
             petitioner was sentenced as under :
                                                       Sentence
 Convict           Offence             Imprisonment         Fine        Default



 Kedar        Section 13 (2) r/w 13    5 years R.I.    Rs. 10 lacs    6 months
 Paswan       (1) (d) P.C. Act                                        R.I.
              Section 120B r/w 420,    2 years R.I.    Rs. 10 lacs    6 months
              407, 467, 468, and 471                                  R.I.
              IPC r/w Section 13(2)
              r/w 13(1) (d) P.C. Act



              It is further submitted by the learned senior counsel for
the petitioner that it was ordered by learned trial court that the
sentence of imprisonment shall run concurrently and the period
already undergone by the convict during trial and the investigation
was ordered to be set off and this Court did not interfere with the
said part of the judgment of the trial court regarding concurrent
running of the sentences and the period already undergone by the
petitioner during the trial and investigation to be set off, hence, the
said part of the order of sentence still remains intact. It is then
submitted by the learned counsel for the petitioner that there is no
dispute regarding the sentence undergone by the petitioner and
payment of fine in respect of the offence punishable under section 13
(2) read with 13 (1) (d) of the Prevention of Corruption Act 1988 by
the petitioner. It is then submitted that there is also no dispute that
the petitioner has already undergone the period of more than 2 years
and 6 months that is more than the substantive sentence for the
offences punishable under sections 120B r/w 420, 407, 467, 468, and
471 IPC r/w Section 13(2) r/w 13(1) (d) P.C. Act and the additional
default sentence of 6 months. Therefore, it is submitted that the
opposite party nos. 2 and 3 be directed to release the petitioner
forthwith from the custody.
            Learned Spl. PP opposes the prayer and drawing
attention of the Court to the affidavit filed by the Superintendent of
Birsa Munda Central Jail submits that as per the Rule 491 of Bihar
Jail Manual, which reads as under:
       " 491. If a prisoner sentenced to a term of imprisonment in default of
  payment of fine is also,either at the same time or subsequently, sentenced to
  another term or to other terms of imprisonment, the imprisonment in
  default of payment of fine shall be kept in abeyance till the expiration of all
  the absolute sentences of imprisonment, and shall be annulled wholly or
   partially by the payment of the fine, in whole or in part, before the
  completion of imprisonment in default.

  Illustration .- A prisoner sentenced on the 9th June 1926 to two years'
  vigorous imprisonment and a fine of Rs. 100, or in default two months'
  rigorous imprisonment: on the 17th July ofthe same year he is sentenced on
  another account to an additional imprisonment for 18 months; and on the
  6th October 1927 he is sentenced on another charge to an additional
  imprisonment for two years. The sentence of two month's imprisonment in
  default of the payment of fine of Rs. 100 should begin from the 9th
  December 1931 (the date of expiration of all the absolute sentences of
  imprisonment being the 8th December) and shall be annulled wholly or
  partially by the payment of the fine, in whole or in part before the
  completion of the imprisonment in default.

  (Note .- This rule covers the case of a prisoner whose first sentence of
  imprisonment is only in default of payment of fine. The substantive
  sentences of imprisonment subsequently passed shall count from the date of
  the first sentence, and the imprisonment in default of payment of fine shall
  take effect last, although a portion of it may have already been served when
  the substantive sentences were awarded; unless the imprisonment is of a
  different denomination to that of the substantive sentences, in which case
  the imprisonment in default of payment of fine shall be completed before the
  substantive sentence of imprisonment shall take effect.)

       the sentence in default of payment of fine starts from the date
the modified conviction warrant has been issued and received by the
jail authority and as per the calculation, the date of release with fine
of the prisoner is 24.05.2021 and the petitioner has deposited the fine
amount of Rs. 15,000/- and he has not deposited the fine with regard
to the second sentence, hence, his release was not made and in
default by payment of fine, the imprisonment of R.I. started from the
date of modified conviction warrant, hence, the petitioner either has
to pay a fine amount imposed upon him with the sentence or in
default to remain in custody as per judgment dated 18.11.2021,
hence, learned Spl. PP defended the action of the jail authority.
      Considering the        submissions made at the Bar and after
carefully going through the materials in the record, it is pertinent to
mention here that the respondent nos. 2 and 3 have lost sight of the

fact that the learned trial court has ordered that the sentence of imprisonment shall run concurrently and the period already undergone by the convict during the trial and the investigation was ordered to set off which has remained intact. So far as the sentence regarding the offences punishable under Section 13 (2) read with Section 13 (1) (d) of the Prevention of the Corruption Act is concerned, there is no dispute that his substantive sentence has been reduced to the period in custody, the petitioner has already undergone and there is no dispute that the petitioner had been in custody from 31.01.2002 to 02.05.2002 and from 22.02.2019 to till date, which is no doubt, more than two years and six months. So far as the sentences for the offences punishable under Sections 120B read with Sections 420, 407, 467, 468 and 471 IPC read with Section 13 (2) read with Sections 13(1) (d) of the Prevention of the Corruption Act is concerned, the substantive sentence was two years and in default of payment of fine, the petitioner was to undergo R.I. for six more months which undisputedly, he has undergone in view of the order that the sentence of imprisonment shall run concurrently, and the period already undergone by the petitioner during trial and investigation be set off. So far as the contention of the respondent nos. 2 and 3 regarding Rule 491 of Bihar Jail Manual is concerned, the said rule is applicable when the court has not passed any order for concurrent running of sentences and that the period undergone by the convict is to be set off and once the order is passed by this court that the period undergone by the convict is to be set off, certainly such order will prevail upon the Room 491 of the Bihar Jail Manual, hence in the present case as already indicated above that specific order has been passed by the court regarding concurrent running of sentences and that the period undergone by the convict is to be set off, the said Rule 491 of Bihar Jail Manual can certainly not be an impediment for release of the petitioner from custody as he has already undergone the sentence of 2 years and the default sentence of 6 months. Thus this court is of the considered view that there is no justifiable reason for the respondent nos. 2 and 3 to keep the petitioner in custody in excess of two years and six months, which the petitioner has already undergone. Accordingly, the opposite party nos. 2 and 3 are directed to release the petitioner forthwith from the custody unless his detention is required in any other case.

This criminal miscellaneous petition is disposed of accordingly.

(ANIL KUMAR CHOUDHARY, J.) AFR-Smita/-