Kerala High Court
Benson vs State Of Kerala And Ors. on 23 August, 2007
Equivalent citations: 2008CRILJ573, 2007(3)KLJ264
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, Antony Dominic
JUDGMENT K.S. Radhakrishnan, J.
1. This case has been placed before us on a reference by Justice R. Basant after having noticed some incongruity between the decisions of the Supreme Court in State of Maharashtra v. Najakat and a Division Bench decision of this Court in Chacko v. State of Kerala wherein Najakat's case was not referred to. Learned Judge expressed doubts as to how the observations made in paragraph 8 of the decision in Najakat's case are to be understood and applied in the light of the decision in Chacko's case.
2. Question centres round the methodology to be applied by the criminal courts when a plea of set off is claimed under Section 428 of the Code of Criminal Procedure, in short 'the Code'. Fair procedure is the soul Article 21 and the essence of Section 428 of the Code flows from that Article. Prison justice is also the concern of the convicting courts and judicial warrant which deprives one's life and liberty should also satisfy the test of fair procedure established by law. Universal Declaration on Human Rights proclaimed by the U.N. General Assembly on December 10, 1948 finds its expression in Article 9 thereof which provides that no one shall be subjected to arbitrary arrest, detention or exile. Section 428 was incorporated with the above objective in mind and it is advantageous to have a look on the object and reasons, which is extracted below:
The Committee has noted the distressing fact that in many cases accused persons are kept in prison for very long period as under trial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as under trial prisoner. Indeed, there may even be cases where such a person is acquitted. No doubt, sometimes courts do take into account the period of detention undergone as under trial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is not always the case so that in many cases the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The Committee has also noted that a large number of persons in the overcrowded jails of today are under trial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs. The new clause provides for the setting off of the period of detention as an under trial prisoner against the sentence of imprisonment imposed on him. The Committee trusts that the provision contained in the new clause would go a long way to mitigate the evil.
The scope of Section 428 of the Code came up for consideration before the apex court in Broucher Plerre Andre v. Superintendent Central Jail Tihar wherein the apex court held that Section 428 is absolute in its terms. It provides for set-off of the pre-conviction detention of an ace used person against the term of imprisonment imposed on him on conviction. In terms of the decision in Boucher's case, set off was available not only against the substantive imprisonment but also m respect of imprisonment in default of payment of fine. Initially when Section 428 was incorporated in the Code in the year 1973, the expression "not being imprisonment in default of payment of fire" did not find a place therein. Subsequent to the decision of the apex court in Bourcher's case after the expression "sentence of imprisonment of fine" the expression "not being imprisonment in default of payment of fine" was inserted by Code of Criminal Procedure (Amendment) Act, 1978. Amendment was necessitated because there was a doubt whether the detention period of imprisonment referred to in Section 428 would apply to imprisonment in default of fine. Amendment was necessitated to clarify that it would not apply to imprisonment in default of fine. Later by Code of Criminal Procedure (Amendment) Act, 2005 proviso was added stating that cases referred to in Section 433A, such period of detention shall be set off against the period of fourteen years referred to in that Section. Proviso came into force with effect from 23-06-2005. Bourcher's case was subsequently followed by the apex court in Hardev Singh v. State of Punjab . Later in Suraj Bhan v. Om Prakash the apex court held that Section 428 does not contemplate any challenge to the conviction or sentence but it confers benefit on a convict reducing his liability to undergo imprisonment out of the sentence imposed for the period which he had already served as an under trial prisoner. Apex Court in Government of Andhra Pradesh v. Anne Venkateswara Roa held as follows:
Section 428 provides that the period of detention of an accused as an under trial prisoner shall be set off against the term of imprisonment imposed on him on conviction. The section only provides fro a "set off' it does not equate an "under trial detention or remand detention with imprisonment on conviction". The provision as to set off expresses a legislative policy; this does not mean that it does away with the difference in the two kinds of detention and puts them on the same footing for all purposes.
It is therefore evident that the benefit of set off relating to pre conviction detention under Section 428 should not be misconstrued to mean that the pre conviction detention is equated with the imprisonment after conviction.
3. Two judges bench of the Supreme Court in Raghubir Singh v. State of Haryana also examined the scope of Section 428 of the Code and took the view that Section 428 provides for the setting off of the period of detention as an under trial prisoner against the sentence of imprisonment imposed on him. The Court held that in order to secure the benefit of Section 428 the prisoner should show that he had been detained in prison forth purpose of investigation, inquiry and trial of the case in which he is later on convicted and sentenced. The court therefore found that if a person is undergoing the sentence of imprisonment imposed by a court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in the latter case even though he was under detention during such period. After holding so the court entered the following finding.
In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence. It is not the period of detention undergone by him during the investigation, inquiry or trial of the same case in which he is later on convicted and sentenced to undergo imprisonment. He cannot claim a double benefit under Section 428 of the Code i.e., the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offences as well.
4. We may point out that in Raghubir Singh's case the apex court had not referred to any of its previous judgments dealing with the scope of Section 428 including the decision in Anne Venkateswara Rao's case. Later the apex Court in State of Maharashtra v. Najakat supra expressed its dissent from the above quoted view expressed by the apex court in Raghubir Singh's case. In paragraph 11 of the judgment in Najakat's case, the apex court specifically stated that the aforesaid view was sought to be reconsidered. In Najakat's case also majority judgment did not refer to any of the previous decisions of the apex Court including that of Anne Venkateswara Rao's case, but expressed the following view;
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 in 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 to 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.
In conclusion, majority judgment in Najakat's case, it is held as follows:
We have no reason to think that the High Courts mentioned above have gone wrong in taking the view that Section 428 of the Code permits the accused to have the period undergone by him in jail as an under trial prisoner setoff against the period of sentence imposed on him irrespective of whether hi was in jail in connection with the same case during that period. We therefore respectfully dissent from the view expressed by the two judge Bench of this Court in Raghbir Singh v. State of Haryana supra.
Later another bench of the Supreme Court in Maliyakkal Abdul Azzez v. Assistant Collector Kerala followed Najakat's case and reaffirmed the principle laid down in Anne Venkateswara Rao's case and held as follows:
In Government of Andhra Pradesh and Anr. v. Anne Venkateswara and Ors. (supra), it was observed that Section 428 provides for set off of the period of detention of an accused as an under trial prisoner against the term of imprisonment imposed on him on conviction, it only provides for a "set off but does not equate an "under trial detention or the detention with imprisonment on conviction". The provision as to set off expresses a legislative policy, this does not mean that it does away with the difference in the two kinds of detention and puts things on the same footing for all purposes.
(emphasis added) Further In Abdul Azeez's case the apex court quoted with approval the dictum laid down by the apex court in Anne Venkateswara Rao's case which is as follows:
It is true that Section speaks of the "period of detention" undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has been convicted. The Section makes it clear that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be during the investigation, enquiry or trail in connection with the "same case in which he has been convicted. We, therefore, agree with the High Court that the period during which the writ petitioners were in preventive detention cannot be set off under Section 428 against the term of imprisonment imposed on them.
True in Anne Venkateswara Rao's case as well as Abdul Aziz's case the court was mainly dealing with the detention under the Preventive Detention Act, still the court reiterated the legislative policy that Section 428 only provides for a "set off" and it does not equate an under trial detention or remand detention with imprisonment on conviction. Provision for "set off" expresses the legislative policy and it does not mean that it does away with the difference in two kinds of detention and puts both on the same footing for all purposes. In Najakat's case the apex court did not overrule Raghubir Singh's case as such but only dissented with the view expressed in that case which is the quoted portion in page 1798 of Raghubir Singh's judgment. On a reading of all the decisions of the apex court including that of Najakat's case on the scope of Section 428 of the Code, we are of the view there is unanimity in the views expressed by the apex court that what is to be set off under Section 428 is the period spent by an under trial prisoner during investigation, inquiry and trial, but not the period of imprisonment on conviction in any other case.
4. A prisoner can have either the status of an under trial prisoner or a prisoner undergoing jail sentence after conviction. If a prisoner is undergoing imprisonment on conviction in a particular case he cannot be treated as an under trial prisoner in respect of another case for which investigation, inquiry or trial is going on; a prisoner can be treated as an under trial prisoner only if he is actually undergoing jail sentence as an under trial prisoner in the same case or some other case. The Apex Court in Najakat's case in our view, on this point has not differed from the view expressed in Anne Venketeswara Rao's case or Raghubir Singh's case. In fact this legal proposition has been reiterated by the apex court quoting both Raghubir Singh's case as well as Najakat's case in Abdul Aziz's case.
5. Apex Court in Najakat's case disagreed with the view expressed in Rabhubir Singh's case by stating that the words 'of the same case' under Section 428 are not 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 sentence is imposed. Further apex court held that 'set off' period during which accused was in prison subsequent to the inception of a particular case should also be credited towards the period of imprisonment awarded as sentence in that particular case meaning thereby that if a prisoner undergoes jail sentence as under trial prisoner in two cases, the period spent by the prisoner as under trial prisoner is available to him for set off in both the cases. Period which has to be set off is evidently the period he has spent as under trial prisoner. If there are more than one case he will get the benefit in both the cases, that is what is laid down in Najakat's case. In our view, Najakat's case has never dissented with the view expressed in Anne Venkateswara Rao's case or overruled Raghubir Singh's case, but expressed its dissent only on page 1789 of Raghubir Singh's case. In fact, as we have already indicated, majority judgment did not refer to Anne Venkateswara Rao's case as well, though justice Sethi in his dissenting judgment quoted with approval views expressed in Anne Venkateswara Rao's case.
6. We, therefore, find no incongruity between the judgment of the apex court arid the decision of this court in Chacko's case. True in Chucko's case reference was made only to the judgment in Raghubir Singh's case and omitted to note the views expressed in Najakat's case. Chacko's case however referred to the dictum laid down by the apex court in Anne Venkateswara Rao's case. In Chacko's case the Division Bench of this Court has taken the view that set off is allowed only to the period before conviction and not the period of imprisonment after conviction and the set off period is applicable only against substantial sentence awarded to him in a particular Case for the pre conviction period in the very same case. To that extent we find no conflict between the decision of the apex court in Najakat's case and the decision of this Court in Chacko's case. Najakat's case however proceeded further and laid down the; law that Section 428 of the Code is not to be understood as suggesting that 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 to that particular case. Najakat's case, in our view, has not laid down the proposition that period of detention undergone by a prisoner after conviction can also be taken as period of under trial of that prisoner and can be set off in another case especially when Najakat's case has not overruled Anna Venkateswara Rao's case. Further Abdul Aziz's case has also reiterated the principle laid down in Anne Venkateswara Rao's case.
7. We may in this connection also refer to the recent judgment of a Division Bench of the High Court of Bombay in Sachindranath Dey v. Superintendent. Mumbai Central Prison 2004 Crl.L.J. 4752. The Division Bench referred to both the decisions of the apex court in Anne Venkateswara Rao's case as well as Najakat's case and has taken the view that the Section 428 of the Code unambiguously indicates that the accused is entitled to the benefit of the period of detention which he has undergone during the investigation, inquiry and trial of the same case and not in any other case.
8. We have already indicated that the apex court in Najakat's case has gone little further stating that even if there is no overlapping between the period spent by a prisoner during the period of investigation, inquiry or trial in more than one case benefit of set off under Section 428 is available in all those cases. Overlapping in other cases where the actual period spent by the prisoner in jail after conviction can be reckoned since prisoner looses his days of under trial prisoner to that of a convict since he is awarded regular jail service after proper investigation, inquiry and trial.
9. With the above mentioned principle in mind, we will examine the facts of the case. Petitioner in this case is a habitual offender who is undergoing sentence of imprisonment in 31 cases. Several other criminal cases are also wider investigation, inquiry or trial. Conviction details are given Annexure R1, Petitioner was arrested in Crime No. 441 of 2003 (ST No. 524 of 2004) of Thrissur Town East Police Station and was in custody from 12-6-2003 to 13-08-2003 and from 22-5-2004 onwards. The case was charge sheeted under Section 53(A) of the Kerala Police Act and the allegation was that the petitioner was found with a motor cycle alleged to be stolen. From 12-6-2003 to 13-8-2003 he was in jail as an under trial prisoner. On 13-8-2003 he was released on bail and subsequently arrested on 22-5-2004 and from that date onwards h J continued as an under trial prisoner. Later he was convicted by the Judicial First Class Magistrate, Thrissur on 15-03-2006. In respect of that he claimed set off under Section 428 and the same was granted by the court in that case from 12-6-2003 to 13-8-2003 and from 22-05-2006 till 15-3-2006. Petitioner therefore cannot have any grievance so far as that case is concerned since the entire period was set off petitioner was also implicated as accused No. 1 in Crime Nos. 162/03, 163/03 of Pavaratti Police Station and the case was registered on 3-6-2003. Crime No. 162/03 was tried as C.C. No. 1039/03 before the Judicial First Class Magistrate, Chavakkad. Petitioner pleaded guilty and the learned Magistrate convicted him to under go R.I. for two years under Section 379 I.P.C. and R.I. for two years under Section 414 I.P.C., vide judgment dated 28-6-2006. Crime No. 163/03 was tried as C.C. No. 390/04 and the petitioner pleaded guilty and was convicted to undergo R.I. for two years under Section 3791.P.C. and to undergo RI. for two years under Section 414 I.P.C. And the sentences were directed to run concurrently. Crime No. 164 of 2003 was tried as C.C. 158/04 and the petitioner pleaded guilty and was convicted and sentenced to undergo R.I. for two years under Section 3791.P.C. and to undergo R.I. for two years under Section 414 I.P.C. and the sentences were directed to run concurrently. Judgment was delivered by the Magistrate on 28-6-2006.
10. Counsel appearing for the petitioner Sri. K.V. Sohan submitted that while the conviction and sentence was passed in the above mentioned three cases petitioner was undergoing imprisonment from 22-05-2004 in crime No. 441 of 2003. Counsel submitted by virtue of Section 428 of the Code petitioner is entitled to set off the period during which petitioner was undergoing imprisonment, that is from 12-06-2003 to 13-08-2003 and also from 22-05-2004 till 28-06-2006. Counsel submitted that the period of two years has expired by 22-05-2006 and therefore the petitioner is entitled to be released forthwith. Counsel submitted that the petitioner is entitled to the benefit of the judgment of the apex court in Najakat's case and if that benefit is expended to the petitioner he need not undergo any more sentence in respect of the above mentioned three cases.
11. Sri Benny Gervasiz, learned Government Pleader, on the other hand contended that the petitioner was produced in respect of C.C.C. 158 of 2004,1039/03 and 390/04 only on 16-7-2005,31-10-2005 and 07-02-2006 respectively on the basis of production warrants issued by the Judicial Magistrate of the First Class, Chavakkad. From the above mentioned dates petitioner was under detention as an under trial prisoner in the above mentioned three cases and all the three cases resulted in conviction on 28-06-2006 and that the Judicial First Class Magistrate, Chavakkad has already granted set off in C.C. 158 of 2003 from 16-03-2005 to 27-06-2006, in C.C. 1039/03 from 31-01-2005 to 27-06-2006 and in C.C. 390/0-1 from 07-02-2006 to 24-06-2006. Learned Government Pleader submitted that the petitioner has already obtained the benefit of set off in all the three cases which he is legally entitled to under Section 428 of the Code and therefore no further relief could be granted. Learned Government Pleader also submitted that the petitioner is undergoing imprisonment in 31 criminal cases and two more cases are pending against him and that if the petitioner's interpretation of Section 428 of the Code is accepted then he will have be released from jail in all the cases. Government Pleader submitted that petitioner is to undergo a total sentence of imprisonment of 20 years and his release fall due only on 12-12-2015.
12. If we have to test the plea raised by the petitioner applying the principles laid down in Najakat's case, the there is an overlapping of the period of pre detention of the prisoner from 22-05-2004 to 15-03-2006 even assuming mat the petitioner was arrested on 12-06-2003 in respect of the other three cases registered at Pavaratti Police Station. The arrest was recorded in Crime 441/03 by the Trichur Town South Police Station but so far as C.C. 1039/03 is concerned his arrest was not recorded on 12-06-2003. Learned judicial Magistrate in his report dated 21-06-2003 has specifically stated that though in page 2 of the charge sheet it was stated that the petitioner was arrested on 12-06-2003 he was not arrested in connection with that case and was not remanded in any of those cases. Facts would indicate that petitioner was produced on production warrant. In other cases production warrants were issued on 16-07-2005, 31-10-2005 and 07-02-2006 in respect of C.C. No. 158 of 2004, 1039/03, and 390/04 and set off was already granted in the other three cases from the above mentioned dates till the date of conviction. Even if we apply the principle laid down in Najakat's case as contended by the petitioner, there will be an overlapping of the pre detention period in crime 441/03 and other three cases for the period from 16-07-2005 to 15-03-2006, 07-02-2006 to 15-03-2006 and 31-10-2005, to 15-03-2006. Even if there is overlapping he will get the benefit of those pre detention period in all the cases; not in one case alone, applying the principle in Najakat's case. But what the petitioner claims is mat he must get the period from 12-06-2003 to 13-08-2003, 22-05-2004 to 15-03-2006, date of conviction in C.C. 414/03 and from 15-03-2006 onwards even if prisoner is undergoing imprisonment on conviction. In our view, from 15-03-2006 onwards petitioner's status has been changed to that of a convict and not an under trial prisoner therefore that period cannot be counted for the purpose of set off under Section 428 of the Code.
13. Petitioner is right in his contention that if he was arrested in other three cases also on 12-06-2003 he would have got the benefit of Section 42E as interpreted in Najakat's case. But the fact remains that he was arrested only on 16-07-2005, 07-02-2006 and 31-10-2005 and therefore set off can be claimed only from those dates. In the dissenting judgment in Najakat's case, Justice Sethi noticed that the disability of the investigating agency in not recording the arrest of the accused may defeat the claim of set off under Section 428 of the Code. Holding so, in the dissenting judgment Justice Sethi held as follows:
The fall out of the interpretation giving the benefit of detention during investigation, inquiry and trial in one case, in the other case, may also tempt the investigating agencies not to arrest the accused for the commission of the second offence pending conclusion of the trial and passing of sentence in the first case. After conviction and sentence in a criminal case, if arrested in the second case, the accused shall not be entitled to claim the benefit of Section 428 of the Code because the sentence upon conviction, can obviously be not equated with the period of detention contemplated under Section 428 of the Code. As such by adopting such a recourse, the courts would not, in any case, advance the interests of justice but actually and factually frustrate its purpose defeating the concept of speedy trial in criminal cases.
14. Facts of this case would clearly show that prosecution had filed application to ensure production of the accused in other three cases. Production warrants were issued only on 16-07-2005, 31-10-2005 and 07-02-2006 in respect of C.C. Nos. 158/04, 1039/04 and 390/04 and therefore the period of set off can be reckoned only from those dates. Non issuance of production warrant by the Magistrate in those three cases or the delay in arresting and producing the accused in courts are not matters which are germance for our consideration in this case. We need only say that the benefit of set off under Section 428 of the Code has been correctly granted in all those three cases taking note of the date of arrest. Reference is therefore answered as above and the writ petition would stand dismissed.