Gupta, J. - (1.)These are a group of four appeals from a common Judgment of the Andhra Pradesh High Court partly allowing two writ petitions, writ petition No. 1865 of 1976 filed by A. V. Rao, and writ petition No. 1870 of 1976 made by N. V. Krishnaiah. The High Court rejected the petitioners prayer for setting off under Section 428 of the Code of Criminal Procedure, 1973 the periods during which they were in preventive detention against the terms of imprisonment imposed on them on their conviction in a sessions trial, but accepted their contention that they were entitled to the benefit of the remission system under the Prisons Act, 1894 for the period during which they were in jail as undertrial prisoners before their conviction:Criminal Appeals Nos. 418 and 419 of 1976 by State of Andhra Pradesh are directed against the part of the High Court's Judgment granting the writ petitioners the benefit of the remision system under the Prisons Act treating for this purpose the period of undertrial detention on the same footing as a term of imprisonment on conviction. Appeal No. 418 arises out of a writ petition No. 1865 of 1976 filed by A. V. Rao and Appeal No. 419 is from writ petition No. 1870 of 1976 made by N. V. Krishnaiah. The writ petitioners have also filed appeals against the part of the Judgment disallowing their prayer for set off under Section 428 of the Code of Criminal Procedure. Criminal Appeals Nos. 484 and 485 of 1976 are by A. V. Rao and N. V. Krishnaiah respectively. All the four appeals are on certificate of fitness granted by the High Court.
(2.)The relevant facts are as follows. A. V. Rao, appellant in appeal 484 of 1976 and respondent in appeal 419 of 1976, was in detention under the Preventive Detention Act when on December 18, 1969 a first information report was filed naming him among others as an accused in a case involving offences under Sections 120A and 120B read with S. 395, and Section 120B read with Section 447 of the Indian Penal Code, which gave rise to sessions cases Nos. 106 of 1970 and 6 of 1971 on the file of the Additional Sessions Judge, Hyderabad. The detention order under the Preventive Detention Law was revoked by the State Government on April 11, 1970 and Rao was released on the next day April 12. He was then produced before the Magistrate in connection with the sessions cases on April 13, 1970 there is some doubt about this date because the record at some places mentions the date as April 18, but the discrepancy in not of any significance on the questions arising for decision in these appeals. On April 10, 1972 Rao was convicted along with others and sentenced to various terms of imprisonment for the offences charged against him, the maximum sentence was rigorous imprisonment for four years. The sentences were directed to run concurrently. His appeal against the order of conviction was dismissed by the High Court on November 28, 1975. He filed writ petition 1865 of 1976 asking for an order on the Government of Andhra Pradesh to set off under Section 428 of the Code of Criminal Procedure, 1973 the time between December 19, 1969 and April 13, 1970 against his term of imprisonment treating the said period as the period of detention undergone by him as undertrial prisoner, and to take into account during which he was in detention as undertrial prisoner for the purpose of remission of his sentence under the Prisons Act. The petitioner further claimed that had he been free at the time when the F. I. R. was lodged on December 18, 1969 he would have surrendered immediately and would have been produced before the court for remand on the next day as some of the co-accused in the case had been; it was submitted that if the "concerned authority" who could but did not "take immediate and necessary steps to produce the petitioner" before the Magistrate, the petitioner should not be made to suffer.
(3.)The facts of N.V. Krishnaiah's case (supra) are similar. Krishnaiah, appellant in appeal No. 485 and respondent in appeal No. 419, was also an accused in the sessions cases 106 of 1970 and 6 of 1971 with A. V. Rao and others. He however was not in detention when the F. I. R. was lodged. He was arrested in connection with the sessions cases on December 19, 1969 and was in detention on remand from December 21, 1969 to April 9, 1972. He was also convicted by the Additional Sessions Judge on April 10, 1972 and the maximum sentence in his case too was rigorous imprisonment for four years. He also preferred an appeal to the High Court against the order of conviction. The High Court granted him bail and he was released on bail on April 29, 1972. He was arrested under the Maintenance of Internal Security Act, 1971 on June 26, 1975. The High Court dismissed the appeal on November 28, 1975. A warrant of arrest issued by the Additional Sessions Judge on December 1, 1975 was served on him on December 30, 1975, on which date the detention order under the Maintenance of Internal Security Act was also revoked. On these facts Krishnaiah in his writ petition sought on order on the State of Andhra Pradesh to treat the "period from June 26, 1975 to November 28, 1975 as remand period" and to set off under Section 428 of the Code of Criminal Procedure this period during which he was under preventive detention against the term of imprisonment imposed on him on conviction in the sessions cases. It was also contended that the warrant issued by the Additional Sessions Judge on December 1, 1975 should have been served on him immediately, that it was no fault of his that " the concerned authority" chose to serve the warrant on December 30, 1975, and that during this period of one month he should be deemed to have been serving the sentence imposed on him. A further prayer was made that the entire period during which he was under detention be taken into account for remission of his sentence under the Prisons Act.