Surendra Vikram Singh Rathore, J.@mdashThis Jail Appeal has been preferred against the order dated 1.102004 passed in Crime No. 173/2000, under section 2/3 U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 (hereinafter referred to as ''Act), Police Station Hardoi, District Harden.
2. It transpires from the record that the appellant along with some other persons was tried for the offence under section 2/3 of the Act During pendency of the case, Appellant Ram Sewak moved an application before the Trial Court that he wants to confess his guilt and he be punished for the period already undergone by him in the said offence. The confessed his guilt on 1.10.2004 and on the basis of his confession, by the impugned order, he was held punished under section 3 of the Act, and was sentenced to undergo rigorous imprisonment for two years and was also imposed fine of R& 5000/ in default of payment of fine he was sentenced to undergo simple imprisonment for a period of seven days.
3. The only argument of the learned Counsel for the appellant is that the appellant has already served out his sentence and he is not being released by the jail authorities.
4. After filing of this appeal on 3.3.2010 it was brought to the notice of the Court that the appellant has already served out the sentence imposed upon him and he is still in jail, therefore, a report from the Superintendent of District Jail Hardoi was called for to explain as to why this appeal has been sent from jail.
5. Superintendent, District Jail, Hardoi in his report dated 19.11.2010 has reported that appellant Ram Sewak is undergoing sentence in the following other cases also:
(1) Case Crime No. 163/2000, S.T. No. 315/2000, under sections 395, 397 IPC, Police Station Tadiyawan, District Hardoi, in which he has been sentenced to undergo imprisonment for a period of 10 years vide judgment dated 13.1.2004. (prior to the date of impugned judgment)
(2) Case Crime No. 353/2002, S.T. No. 831/2003, under sections 148, 302/149, 307/149 IPC, Police Station Kotwali Dehat, he is undergoing life imprisonment with fine of Rs. 10,000/ and in default payment of fine he has to undergo two yean imprisonment He was convicted by judgment dated 15.9.2004 (prior to the date of impugned judgment) It was further reported that in view of the provisions of para 36(2) of Jail Manual other sentence shall run along with the sentence of imprisonment for life and the appellant has completed the substantive sentence imposed on him but he has to undergo imprisonment which is imposed on him in default of payment of fine which is only for seven days.
6. I have gone through the record. A perusal of the record shows that the appellant was convicted with two years R.L and there is no dispute to the fact that he has already completed his sentence but in other murder case he was already undergoing imprisonment for life. In this case he has also been imposed fine of Rs. 5000/.
7. Section 3 of the Act provides for the punishment, relevant part of which reads as under
"Section 3(1) of the Act says that �A gangsters, shall be punished with imprisonment of either description for a term which shall not be less than two years and which may extend to ten years and also with fine which shall not be less than five thousand rupees."
8. Keeping in view that the appellant has himself voluntarily confessed his guilt before the Court and on the basis of his confession he was imposed the minimum sentence provided under the Act The grievance of the appellant is that he has already served out his sentence and has not been released in this case. Fine imposed on the appellant is also the minimum as provided in section 3 of the Act and in default of payment of fine only 7 days imprisonment was awarded. By no stretch of imagination it can be said to be excessive. It was mandatory for die Trial Court to impose fine upon the appellant as mentioned in section 3 of the Act The appellant is a hardened criminal he is already undergoing sentence of life imprisonment in a murder case also. He was also convicted in a dacoity case and he was undergoing.
9. Now the question for consideration is as to why the appellant has not been released while he has already served out his sentence in mis case. For this purpose sections 427 and 428 Cr.P.C. and paras 36 and 38 of Jail Manual are important which reads as under
�427. Sentence on offender already sentenced for another offence.
(1) 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:
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.
(2) 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.
428. Period of detention undergone by the accused to be set off against the sentence or 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, any, of the term of imprisonment imposed on him.
Regulation, 36 (fail manual).Special examination of warrants in certain cases.When a person, already undergoing a sentence of imprisonment or transportation or imprisonment in default of furnishing security, is sentenced to imprisonment of transportation, the warrant should be examined to see if the provision of section 379 of the Code of Criminal Procedure, 1896, have been followed.
When a person already undergoing imprisonment is imprisoned in default of furnishing security, the warrant should be examined to see if the provisions of section 120 of the Code of Criminal Procedure, 1898, have been followed.
When a person has been imprisoned for failure to give security, (he warrant should be examined to see whether the nature of the imprisonment (simple or rigorous) is in accordance with the provisions of subsections (5) and (6) of section 123 of the Code of Criminal Procedure.
When two or more sentences of imprisonment have been passed in default of payment of fines the warrant should be examined to see whether such sentences are consecutive as concurrent sentences cannot be passed in such a case in view of section 35(1) of the Code of Criminal Procedure.
In the case of an error in the warrant the Superintendent should refer the matter to the Court concerned, or in case he considers it necessary, he may make a reference to the Inspector General for the orders of the State Government under section 17 of the Prisoners Act, 1900. The dates of commission of the offences, the sentences passed and the names of ''the Courts passing the sentences should be clearly mentioned in the report.
Regulation 38 (Jail Manual). Date of release when the sentence includes fine.When a prisoner is sentenced to imprisonment of which the whole or any portion is in default of the payment of any fine and the fine is not immediately paid, the date of release, if the fine is subsequently paid, and the date of release, if the fine is not so paid, shall be separately calculated and entered on the convict''s warrant and history ticket as well as in the register. When any portion of the fine is subsequently paid, the date of release shall be altered accordingly."
10. Chapter III of IPC deals with punishment. Some sections are also relevant in this matter:
Section 63. Amount of fineWhere no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive.
Section 64. Sentence of imprisonment for nonpayment of fineIn every case, of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable [with imprisonment or fine, or]with fine only, in which the offender is sentenced to a fine,]
it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, in which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.
Section 65. Limit to imprisonment for nonpayment of fine, when imprisonment and fine awardableThe term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed onefourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine.
Section 68. Imprisonment to terminate on payment of fine.The imprisonment which is imposed in default of payment of a fine shall terminate when ever that fine is either paid or levied by process of law."
11. A cumulative study of the aforementioned provision of Cr.P.C. , I.P.C. and Jail Manual makes it abundantly clear that where the convict is undergoing sentence of imprisonment for life and during the said period he is further imposed another sentence in another case then such subsequent sentence shall start running from the date of his conviction. But the sentence which has been awarded in default of payment of fine shall run only after the completion of the earlier substantive sentence.
12. In the facts of this case, the appellant was already undergoing sentence of imprisonment of life in a murder case, therefore, the substantive sentence start running from the date of his conviction in this case, and he has already served out his sentence but he will have to serve out the sentence which has been imposed on him in default of payment of fine. The sentence imposed upon the appellant by the Trial Court is the minimum that could have been awarded under section 3 of the Act. Only seven days imprisonment has been awarded in default of payment of fine and it can not be said to be disproportionate or excessive rather it is on much lower side.
13. In view of the aforesaid provision there is no illegality in the detention of the appellant. The appellant will have to serve out the period which he has to undergo in default of payment and fine after he has served out the substantial sentence in the case in which he has been convicted. Keeping in view the criminal history of the appellant he does not deserve any sympathy of the Court.
14. Accordingly this appeal has absolutely no force and deserves to be dismissed and is accordingly dismissed.
15. Office is directed to send back the Lower Court Record without delay, as the trial of other coaccused persons appears to be still pending.
