Hazrat Ali and another Vs. The State [4 LNJ (2015) 375]

Case No: Criminal Miscellaneous Case No. 27830 of 2014

Judge: Md. Nizamul Huq,

Court: High Court Division,,

Advocate: Mr. Amit Talukder,Mr. Md. Shafiqul Islam,,

Citation: 4 LNJ (2015) 375

Case Year: 2015

Appellant: Hazrat Ali and another

Respondent: The State

Subject: Sentencing,

Delivery Date: 2014-12-04


HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Md. Nizamul Huq, J.
And
S. H. Md. Nurul Huda Jaigirdar, J.

Judgment on
04.12.2014
}
}
}
}
Hazrat Ali and another
...Petitioners
-Versus-
The State
. . .Opposite Party
 
 
Code of Criminal Procedure (V of 1898)
Section 35A
In the original Act, the sentence of death or imprisonment for life was mentioned and the power of the Court was given by the word “may take into consideration.” But in the amended Act, the sentence was only death and duty was given to the Court that it shall deduct the time of imprisonment in hajot and as such Act No. 19 of 2003 has been given retrospective effect with the pending cases and benefit of Section 35A of the ‘Code’ is to be given to the petitioners. We also get that even at this stage in considering this rule, we can give benefit of section 35A of the ‘Code’ which was not given in the trial and appellate judgment. . . . (20)
 
Code of Criminal Procedure (V of 1898)
Section 491
Mere mentioning of the section will not debar anybody from the relief. Moreover, this is not the question of legality of the judgment and order of conviction and sentence, when the petitioner under section 491 of the ‘Code’ may be a bar, but this question of keeping a person in jail beyond the time he is required to stay in jail and as such we find that when the question is whether the person is being detained in jail beyond his term of sentence, this petition is maintainable. . . . (21)
 
19 BLC (AD) 204; 19 DLR (SC) 242; Abdul Wadud Vs. The State, 48 DLR (AD) 6; Adnan Afzal Vs. Sher Afzal, 21 DLR (SC) 123; Mohammad Ali Shanu Vs. The State, 13 MLR (AD) 121; Bakul Mia Vs. Govt. of Bangladesh and others, 46 DLR (AD) 530; Thirumalai Chemicals Limited Vs. Union of India and others, 6 SCC 739; Hitendra Vishun Thakur and others Vs. State of Moharashtra and others, AIR 1994 (SC) 2623; Farid Ali Vs. The State, 4 BLC 27 and 13 MLR (AD) 121 ref.
 
Mr. Md. Shafiqul Islam with
Mr. Md. Shahjahan, Advocates
. . . For the petitioners.

Mr. Amit Talukder, Deputy Attorney General
. . . For the State.

Mr. Khondoker Mahbub Hossain with
Mr. Munsurul Haque Chowdhury, senior advocates and
Mr. M. A. Mobin, advocate
. . . Amicus curiae
 
Criminal Miscellaneous Case No. 27830 of 2014
 
JUDGMENT
Md. Nizamul Huq, J.
 
This Rule was issued calling upon the Deputy Commissioner Sylhet and other opposite parties to show cause as to why the applicant petitioners Hazrat Ali, son of Jabed Ali of village-Hararam, Police Station- Kaligonj, District- Lalmonirhat, Koyedi No. 437A and Jalil Mia @ Abdul Jalil, son of Ishaque Ali of village-Hararam, Police Station- Kaligonj, District- Lalmonirhat, Koyedi No. 1284A now being detained in Dhaka Central Jail-2 Kashimpur, Gazipur as convicts in Sessions Case No. 125 of 1997 arising out of Beanibazar Police Station Case No. 6(5)92 and G.R. No. 36 of 1993 under section 302/34 of the Penal Code shall not be brought before this Court to be dealt with in accordance with law so that this Court may satisfy itself that they are not been detained in custody illegally, improperly and without lawful authority, and/or pass such other or further, order or orders as to this Court may deem fit and proper.

The petitioners were convicted in Sessions Case No. 125 of 1996 by the Additional Sessions Judge, 1st Court, Sylhet by order of conviction and sentence dated 13.09.2001 convicting the petitioners under section 302/34 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for life and to pay a fine of Tk. 2,000/- in default to suffer rigorous impriso-nment for 06(six) months more. Then there was a jail appeal in this Court being jail appeal no. 117 of 2002 filed by the petitioners and that was also dismissed by judgment and order dated 25.06.2003.

The petitioners were arrested by police on 23.05.1992 and was forwarded to the Court and on that date they were sent to jail hajot. During the whole period of trial they were in custody and ultimately the trial was concluded on 13.09.2001 and they are still in jail in connection with the conviction and sentence mentioned above. An application was filed on behalf of the petitioners to the Additional Sessions Judge, 1st Court, Sylhet for treating their custody in jail hajot for more than 09(nine) years as part of their sentence but that was rejected by the learned judge. The petitioners in various ways requested the jail authority to release them from jail complying with section 35A of the Code of Criminal Procedure hereafter to be referred to as the ‘Code’ but the authority concerned refused to release them by saying that the trial Court did not say in the judgment that the period of remaining in hajot during the trial about 09(nine) years and 03(three) months shall be reduced from the sentence. The petitioners then sent the notice demanding justice to the opposite parties praying for releasing them from the jail on 06.06.2014 but that was not complied with. The Senior Jail Super Dhaka Central Jail -2, Kashimpur, Gazipur informed the learned advocate for the petitioners vide memorandum no. 44.07.3300.080.02.00.009.12-2195 dated 23.06.2014 and memorandum no. 44.07.3300.082.02.04.14-2308 dated 26.06.2014 informing that the petitioner no.1 Hazrat Ali has earned remittance of 04(four) years 01(one) month 07(seven) days that is 1447 days upto may,2014 and accordingly his date of release is 05.08.2027and more remittance may be given in future and his date of release may occur before that. As there was no order in judgment that the time in hajot shall be excluded from the sentence he will not get the benefit of section 35A of the ‘Code’. As regards the petitioner no.2 Jalil Mia @ Abdul Jalil, it was informed that he has received the remittance of sentence for 1372 days that is 03(three) years 09(nine) months 22(twenty two) days upto 30.03.2014 and his expected date of release is on 21.03.2027 if he deposit the fine otherwise it will be 2109.2027. Getting no way left the petitioners filed this application under section 491 of the ‘Code’ and obtained this Rule.

Mr. S.M. Shafiqul Islam with Mr. Md. Shahjahan, the learned advocates appeared for the petitioners while Mr. Amit Talukder, the learned Deputy Attorney General appeared for the state.

Mr. S.M. Shafiqul Islam, the learned advocate appearing for the petitioners submits that the accused petitioners were arrested on 23.05.1992 and already they have received remittance of sentence for 04(four) years 01(one) month 07(seven) days and 03(three) years 09(nine) months 22(twenty two) days respectively and the judgment and order of conviction and sentence was passed on 13.09.2001 that means they were in jail hajot for 09(nine) years 03(three) months and 20(twenty) days and remittance have been given to them for about 04(four) years which make it clear that from the sentence of 30(thirty) years they will get benefit of about 13(thirteen) years. If section 35A of the ‘Code’ is applied upon them. He further submitted that in the jail, sentence of 9(nine) months constitute one year and life sentence is equivalent to sentence of 30(thirty) years but one is to serve 22 (twenty two) years 6(six) months to complete the life sentence. The petitioners have served more a 13(thirteen) years and they have received benefit of 13 (thirteen) years. As such it is clear that they have served out their sentences and they are entitled to be released forthwith. The authority by denying to release them have done illegality and as such the petitioners are to be released. 

During hearing of the matter it appears to us that some question of law having public interest is involved in this matter and as such we decided to take assistantce of some senior lawyers as amicus curiae to reach at a proper decision and in this respect Mr. Khondoker Mahbub Hossain, Mr. Munsurul Haque Chowdhury, the senior advocates and Mr. M.A. Mobin, advocate were appointed to assist us in the matter as amicus curiae. Receiving our information they all appeared before us and submitted on the following point.

“whether section 35A of the Code of Criminal Procedure will be applicable in the facts and circumstances of the instant case and whether the accused petitioners will get any benefit out of that”.
 
Mr. Munsurul Haque Chowdhury, the learned senior advocate appearing as amicus curiae submitted that in our country, the sentence of imprisonment for life is equivalent to 30(thirty) years. But under the law, one is to serve the sentence of 22(twenty two) years 6(six) months to complete the life sentence. He placed a decision reported in 19 BLC(AD) page-204 and then placed paragraph 24 of that decision where the meaning of life sentence have been discussed-

“It can be stated that sentence of “imprisonment for Life” as used in Bangladesh is utterly a misnomer; indeed it appears to be an erroneous interpretation. The way it has been interpreted, the word “Life” does not bear its normal linguistic meaning. In other words, a person sentenced to imprisonment for life does not necessarily spend his life in prison, although section 45 of the Penal Code defines “Life” as the life of a human being unless the contrary appears from the context. The given interpretation has been arrived at with the aid of section 57 of the Penal Code, which provides that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30(thirty) years. This last mentioned section read with relevant provision of the Jail Code effectively means that a person sentenced to imprisonment for life will be released after spending a maximum of 22 years in prison. Under section 35A of the Code of Criminal Procedure the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence. Thus we find that in many serious murder cases, where the trial lasts for many years, the accused who is found guilty and sentenced to imprisonment for life gets released after serving a total of 22  years including the period spent in custody during trial. Hence, the sentence of imprisonment for life imposed at the time of delivery of judgment appears to be a lenient sentence and may in the minds of some appear to be not a proper sentence, especially when some horrific facts are disclosed in evidence.”
 
Baising on this decision he submitted that a person sentenced to imprisonment for life will be released after spending maximum of 22years imprisonment and under section 35A of the ‘Code’, the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence. Thus an accused who is found guilty and sentence to imprisonment for life gets release after serving a total of 22years including the period he spent in custody during trial.
 
He further submitted that this being a decision of the Appellate Division is binding upon all and as such in the instant case also the petitioners will be released after serving of 22years including the period they spent in custody during trial. He then submitted that the trial Court judgment in this case was passed on 13.09.2001 and the jail appeal was disposed off on 25.06.2003 and section 35A of the ‘Code’ was inserted in Act No. 16 of 1991 which came on 5.5.1991. It was then replaced by Act No. 19 of 2003 on 08.07.2003. He submitted that as it was replaced, operation of the Act will be from 1991 and not from 2003. As such the benefit of this section 35A of the ‘Code’ will be applicable from 1991 and the instant case the petitioners were convicted by the trial Court on 13.09.2001 and as the word shall was used, the petitioners shall get benefit of section 35A of the ‘Code’ in the instant case also. As we consider that the first information report of this case was filed on 22.05.1992 then also it can safely by considered that in this case, section 35A of the ‘Code’ will be applicable and accordingly according to him both the petitioners are entitled to get the benefit of section 35A of the ‘Code’. Mr. Munsurul Haque Chowdhury placed before us section 35A of the ‘Code’ when it was enacted as Act No. 16 of 1991.

“35A Term of imprisonment in cases where convicts are in custody:- where a person is in custody at the time of his conviction and the offence for which he is a convicted is not punishable with death or imprisonment for life, the Court may in passing the sentence of imprisonment take into consideration the continuous period of his custody immediately proceedings his conviction.”

Upon perusal of this, he submitted that power is given to the Court to take into consideration the continuous period of his custody and in case of conviction and sentence not with death or imprisonment for life. But the law has changed in 2003 by Act No.19 section 35A of the ‘Code’ has been replaced by a new section 35A of the ‘Code’ which runs as follows-

“35A. Deduction of imprisonment in cases where convicts may have been in custody:- 1) Except in the case of an offence punishable only the death, when any Court finds an accused guilty of an offence and upon conviction and sentence, such accused to any term of imprisonment simple of rigorous, it shall deduct from the sentence of imprisonment, the total period the accused may have been in custody in the mean time in connection with that offence. 2) If the total period of custody prior to conviction refer to sub-section-1 is longer than the period of imprisonment to which the accused is sentenced, the accused shall be deemed to have been served out the sentence of imprisonment and shall be released at once, if in custody unless, required to be detained in connection with any other offence, and if the accused is also sentenced to pay a fine in addition to such sentence, the fine shall be remitted.”

This Act as it stands shows that it is the duty of the authority to deduct from the sentence of imprisonment the total period, the accused may have been in custody and that this is applicable to all cases except punishable only with death.

Mr. Munsurul Haque Chowdhury further submitted that as Act No. 19 of 2003 has been replaced in place of Act No. 16 of 1991, the benefit of section 35A of the ‘Code’ will be on the basis of Act No. 19 of 2003 but it will take effect from the date Act No. 16 of 1991 came into operation and in the instant case the petitioners will get benefit of section 35A of the ‘Code’. Moreover, the appeal being a continuation of the trial proceeding, the instant case was disposed of on 25.06.2003 when the judgment of jail appeal was passed. At that time Act No. 19 of 2003 although has not come into operation but the petitioners will get benefit of section 35A of the ‘Code’ as Act No. 19 of 2003 came into operation after replacing Act No. 16 of 1991. He last of all submitted that considering all these aspects and on calculation, it is found that the petitioners have served out the sentence and they are entitled to be released.

Mr. M.A. Mobin, the learned advocate appearing as amicus curiae submitted that the Act No. 19 of 2003 will have retrospective effect as it has come in place of Act No. 16 of 1991 by amending some rights. In support of his submission he placed before us the case of Mohammad Alam and 03(three) others versus the State reported in 19 DLR (SC) page 242 and submitted that

“Law –Altered during the pendency of the case-Law existing at the commencement of the trial will govern the case, unless the new law is expressly or impolitely given a retrospective effect.”

With this he submitted that when the Law is altered during the pendency of an action, the rights of the parties are to be decided according to the Law as it existed when the action was began, unless the new statutes shows a clear intention to vary such rights. Where the legislature has made its intention clear that the amending Act should have retrospective operation, there is no doubt that it must be so construed, even though the consequences may entail hardship to a party. But even without express words to that effect, retrospective effect may be given to an amending Law, if the new Law manifests such a necessary intendment. With regard to the procedural Law, the general principle is that alternatives in procedure are retrospective unless there be some good reasons against such a view. If a statute deals merely with the procedure in an action, and does not affect the rights of the parties, it will be held to apply prima facie, to all actions pending as well as future. It is only if it be more than a mere matter of procedure, i.e. if it touches a right in existence at the passing of the new Act, that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of the new Act.

He then submitted that in the instant case the new statute shows a clear intention to very such rights because in the original Act, the sentence was death or imprisonment for life and that the power of the Court was given by the word “may take into consideration” but in the amended Act the sentence was only death and duty was given to the Court to deduct the time of imprisonment in jail hajot by the word “shall” and as such according to him it should be decided that Act No. 19 of 2003 has got retrospective effect with the pending cases and he submitted that the benefit of section 35A of the ‘Code’ should be given to the petitioners. This decision of 19 DLR (SC) page 242 has been considered and accepted in a case of Abdul Wadud Versus the State reported in 48 DLR (AD) page 6 in considering the legal position of an amendment in procedural Law.

Mr. Mobin then submitted the decision in the case of Adnan Afzal versus Sher Afzal reported in 21 DLR (SC) 123 and submitted that after the coming into operation the West Pakistan Family Courts Act-1964, proceedings pending before the Criminal Courts also came under the jurisdiction of this Court. In that decision, it was held that

“The combined effect of sections 5 and 20 of the Family Courts Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, dismissing or curtailing the rights already possessed by a litigant with regard to the schedule of matters. The Family Courts Act has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has thus brought about only procedural change and not affected any substantive right. According to general rule of interpretation,, a procedural statute is to be given retroactive effect unless the law contains a contrary indication. There is no such contrary indication in the West Pakistan Family Courts Act, so the Act affected also the pending proceedings and the District Magistrate was right in holding that Courts of Magistrate has no longer any jurisdiction either to entertain, hear and adjudicate upon a matter relating to maintenance.”
 
Mr. M. A. Mobin lastly submitted that even at the Appellate Division stage after passing the judgment of conviction and sentence by the trial Court and the appellate Court, the benefit of section 35A of the ‘Code’ can be given to the petitioners. In support of his submissions he placed before us the case of Mohammad Ali Shanu Versus the State reported in 13 MLR(AD) 121 and submitted that in that case the petitioners were convicted by the trial Court under section 394/34 of the Penal Code and the said conviction and sentence was affirmed by the High Court Division. In this case the FIR was lodged on 06.09.1986, trial Court convicted the petitioner on 02.06.1991, then the High Court Division as Appellate Court dismissed the appeal on 31.01.2006 and the Appellate Division passed the judgment on 10.12.2007. In the Appellate Division the benefit of section 35A of the ‘Code’ was given to the petitioners and with the following observation, the petition was dismissed.

“As regards the sentence, the learned advocate submitted that the accused has been languishing in custody about a year before the trial has commenced under the provision of law, the accused is entitled to get the benefit of the said period to be deducted from the total period of conviction. The said submission has substance and accordingly, the actual period spent in custody prior to trial is liable to be deducted from the period of sentence”.
He then submitted that in the instant case also the petitioners were not given benefit of section 35A of the ‘Code’ in the trial Court and in the appellate Court but they are entitled to get it even at this stage. As such he submitted that the petitioners shall get the benefit of section 35A of the ‘Code’ and the rule is to be made absolute.

Mr. Khondakor Mahbub Hossain, the learned senior advocate appearing as amicus curiae submitted that in this case as the order was passed by the Tribunal legally petition under section 491 of the ‘Code’ does not lie. He submitted that in a petition under section 491 of the ‘Code’ the Court cannot see the propriety of the order and it cannot go into the merit of the case as to whether the conviction and sentence was legal or not. As such this petition filed under section 491 of the Code of Criminal Procedure where no remedy has been given to the accused petitioner under section 35A of the ‘Code’ legally or illegally, this Court cannot consider that matter and pass any order in this respect. Later on he submitted that this petition under section 491 of the ‘Code’ can be transferred into a petition under section 537 read with section 561A of the ‘Code’ and the power of this Court under section 537 read with section 561A of the ‘Code’ can be applied. In support of his contention he placed before us the case of Bakul Mia versus Govt. of Bangladesh and others reported in 46 DLR(AD) 530 wherein it has been stated

“Where there has been a judgment and conviction passed by a Court, the High Court Division cannot interfere under section 491 on the ground of irregularities.”

He submitted that if a petition is filed for transferring the petition filed under section 491 of the ‘Code’ to a petition under section 537 read with section 561A of the ‘Code’, then the Court can allow it and proceed to see the legality or illegality of the order and pass appropriate order in this case. But he submitted that this petition has not been filed and as such consideration of this petition under section 491 of the ‘Code’ as petition under section 537 read with section 561A of the ‘Code’ is not sustainable. Consequently according to him this Rule has got no merit and is liable to be discharged.

Mr. Hasan Arif, the learned senior advocate on request of us being present in the Court room submitted that if it is found that the period of confinement in the custody is beyond the sentence passed, then certainly the confinement becomes wrongful confinement and in that position a petition under section 491 of the ‘Code’ is maintainable. He submitted that the Court cannot see whether the conviction and sentence passed are legal or not but if it is found that whatever the sentence upon the petitioner has been passed and the petitioner is to serve following the Jail Code, if it is found that he has served out the sentence and ought to have been released earlier but the jail authority has not released him, then this Court can pass order under section 491 of the ‘Code’ to direct the jail authority to release the petitioner from jail custody. As such according to him, this petition filed under section 491 of the ‘Code’ is maintainable if on calculation, it is found that the petitioners have served out the sentences following the law and then they are entitled to be released.

The learned Deputy Attorney General placed the decision of the case of Thirumalai Chemicals Limited Versus Union of India and others reported in (2011) 6 SCC 739 wherein it has been held

“Therefore unless the language used plainly manifesto in express terms or by necessary implication a contrary intention a statute divesting vested rights is to be construed as prospective, a statute merely procedural is to be construed as retrospective and a statute which while procedural in its character affects vested rights adversely is to be construed as prospective.”

He then submitted another decision in the case of Hitendra Vishun Thakur and others versus State of Moharashtra and others reported in AIR 1994(SC) 2623 wherein it has been held in paragraph 25 that
  1. A statute which affects substantive right is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually, impossible is presumed to be retrospective in its application, should not be given an extended meaning, and should be strictly confined to its clearly defined limits.
  2. Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even through remedial, is substantive in nature.
  3. Every litigant has a vested right in substantive law, but no such right exists in procedural law.
  4. A procedural statute should not generally speaking be applied retrospectively, where the result would be to create new disabilities or obligations, or, to impose new duties in respect of transactions already accomplished.
  5. A statute which not only changes the procedure but also creates a new rights and liabilities, shall be construed to be prospective in operation, unless otherwise provided, either expressly a by necessary implication.”
He then submitted another decision in the case of Farid Ali versus the State reported in 4 BLC 27 wherein it has been held

“Sentence- Normal sentence under section 302 of the Penal Code is death but under some extenuating circumst-ances it may be imprisonment for life but such sentence can never be 30(thirty) years taking the aid of section 57 of the Penal Code.”

By placing the decisions mentioned above, the learned Deputy Attorney General submitted that the benefit of section 35A of the Code will not be applicable in the facts and circumstances of the case. He submitted that section 35A of the Code was enacted in 1991 and at that time, for any sentence of death or imprisonment for life, the said section was not applicable. When the Act was amended on 08.07.2003, the jail appeal was not pending, because the jail appeal was dismissed on 25.06.2003. As such the petitioners here also shall not get the benefit of section 35A of the Code. He then submitted that no Court in their judgment and order has given the benefit to the petitioners as such on this Count also, the petitioners are not entitled to get any benefit of section 35A of the Code. Last of all he submitted that there is no rule that the imprisonment for life shall be treated as imprisonment for 30(Thirty) years. It is a fact that the government allows release of one convict sentenced for life imprisonment when he has served sentence of 30(thirty) years but it is not a rule. The petitioners cannot claim it as their right. As such he submitted that on the points he submitted, the petitioners cannot be released at this stage and the rule is liable to be discharged.

Last of all in reply to submissions made above, Mr. Md. Shahjahan, the learned advocate appeared for the petitioner along with Mr. Md. Shafiqul Islam and submitted that if it is found that the petitioner is in custody beyond the legal period which he ought to have been served out then this Court can order to release him under section 491 of the Code of Criminal Procedure. In reply to the submission of amicus curiae Mr. Khondaker Mahbub Hossain, he submitted that the simple question is whether the petitioners have served out their sentence imposed by law or not. If it is found that the petitioners have served out their sentence and ought to have been released earlier, then the Court can pass order under section 491 of the Code to release them. He further submitted that the question is not whether this is a petition under section 537 read with section 561A of the ‘Code’ or section 491 of the ‘Code’, but it is to be seen whether the persons detained have served out their sentence and if the Court is satisfied that they have served out the sentence beyond time then this Court can pass order under section 491 of the Code of Criminal Procedure. The question is not the validity of the conviction and sentence and nobody is arguing regarding the merit of this case on that point and as such there is no bar to file an application under section 491 of the Code of Criminal Procedure. Even if it is found that the petition under section 491 of the Code of Criminal Procedure is not maintainable, in this case which is not, this Court without waiting for a petition to be filed for transfer can consider the petition as under section 537 read with section 561A of the ‘Code’ and pass necessary orders under the law. For this problem the petition cannot be held to be not maintainable and the petitioners cannot be deprived of the proper order as required under the law. He then submitted that in the facts and circumstances of the case, it is clear that the petitioner have served out their sentences as section 35A of the Code will be applicable to them and hence they are being detained illegally and improperly and as such the rule is to be made absolute.

We have heard the learned advocate for both the sides and the learned amicus curiae and perused the application and the materials on record. The accused petitioners were arrested by police on 23.05.1992 and forwarded to the Court and since then they are in custody. The petitioners were convicted in Sessions Case No. 125 of 1996 under section 302/34 of the Penal Code and each of them were sentenced to suffer rigorous impriso-nment for life and to pay a fine of Tk.2,000/- in default to suffer rigorous imprisonment for 06(six) months more. Against this judgment and order of conviction and sentence dated 13.09.2001, the petitioners filed Jail Appeal No. 170 of 2002 which was also dismissed by judgment and order dated 25.06.2013. Thereafter the petitioners filed the application for inclusion of the period of suffering hajot which could be entertained under section 35A of the ‘Code’. But by order no.90 dated 08.07.2010 that prayer was refused by the trial Court. The petitioners tried to satisfy the jail authority as regards the application under section 35A of the ‘Code’ but the authority refused to release them on the understanding that the trial Court did not say in the judgment that period of remaining in the hajot during trial shall be deducted from the sentence and when this has not been stated in the judgment, the benefit of section 35A of the ‘Code’ cannot be given to the petitioners. But we find here that the trial Court judgment was passed on 13.09.2001 and the jail appeal was disposed of on 25.06.2003 and section 35A of the ‘Code’ was inserted by Act No. 16 of 1991 dated 05.05.1991 and it was then replaced by Act No. 19 of 2003 dated 08.07.2003. When it was replaced, operation of the Act No. 19 of 2003 will be from 05.05.1991 and not from 08.07.2003 and the benefits given in Act No. 19 of 2003 is to be given. Thus we find that these petitioners shall get the benefit of section 35A of the Code as given in Act No. 19 of 2003, and the order no. 90 is not legal.

The petitioner no.1 for his good behavior manner and activities has been awarded exemption for 04(four) years 01(one) month 07(seven) days till 1st day of July, 2014 as per Jail Code and the petitioner no.2 has got the said exemption for 3(three) years 9(nine) months and 22(twenty two) days till 30th March, 2014 and they have suffered sentence from 13.09.2001 and till today they are in custody that means they have suffered till today i.e. 04.12.2014 for 13(thirteen) years, 2(two) months and 22(twenty two) days and before judgment they have suffered 9(nine) years, 3(three) months 20(twenty) days in hajot and as such they have suffered 22(twenty two) years 6(Six) months 12(twelve) days except the exemption given to them. We have already found from the judgment passed on 19BLC(AD) 204, that a person serving sentence of life imprisonment is to serve a maximum of 22 years in jail, which makes it clear that even without calculating the days of exemptions given the petitioners have already served their sentences and they are entitled to be released forthwith. The case will be far better, if the exemptions are taken into consideration. 

In consideration of the reported decisions referred by Mr. M.A. Mobin, the amicus curie, we get that in the original Act, the sentence of death or imprisonment for life was mentioned and the power of the Court was given by the word “may take into consideration.” But in the amended Act, the sentence was only death and duty was given to the Court that it shall deduct the time of imprisonment in hajot and as such Act No. 19 of 2003 has been given retrospe-ctive effect with the pending cases and benefit of Section 35A of the ‘Code’ is to be given to the petitioners. We also get that even at this stage in considering this rule, we can give benefit of section 35A of the ‘Code’ which was not given in the trial and appellate judgment, if we follow 13 MLR (AD) 121 case.

In considering the submission made by Mr. Khondaker Mahbub Hossain, we get that he has submitted that in this case, the petitioners are not entitled to get benefit of section 35A of the ‘Code’ as the application has been filed under section 491 of the ‘Code’. We respectfully differ with his submission that we have already got that mere mentioning of the section will not debar anybody from the relief. Moreover, this is not the question of legality of the judgment and order of conviction and sentence, when the petition under section 491 of the ‘Code’ may be a bar, but this is a question of keeping a person in jail beyond the time he is required to stay in jail and as such we find that when the question is whether the person is being detained in jail beyond his term of sentence, this petition is maintainable.

Thus we find that this petition filed under section 491 of the ‘Code’ is maintainable, the petitioner shall get the benefit of section 35A of the ‘Code’ and that the petitioners have served the sentence as required under the law, and as such we have got no hesitation to hold that the petitioners are being detained in jail illegally, improperly and without any lawful authority and they are entitled to be released forthwith.

The rule is thus made absolute. The petitioners 1) Hazrat Ali, son of Jabed Ali and 2) Jalil, son of Ishak Ali are directed to be released forthwith if not wanted in connection with any other case.

Before parting, we want to note our heartiest gratitude on the participation, deliberation of the amicus curiae mentioned above and we respectfully remember their services, arguments advanced and we admire and say that the deliberations have immensely helped us in reaching to the decision of this case. Very respectfully we acknowledge their services herein.

Inform the opposite parties at once.  

Ed.