Karnataka High Court
Nagappa Dundappa Patil Alias Pujar vs State Of Karnataka on 31 May, 2002
Equivalent citations: 2002CRILJ3861, 2002 CRI. L. J. 3861, 2002 AIR - KANT. H. C. R. 2421, (2002) 4 RECCRIR 724, (2002) 3 CURCRIR 534
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
ORDER K. Sreedhar Rao, J.
1. Government Advocate takes notice for the State. The petition filed under Section 397, Cr.P.C. against the order of conviction and sentence passed in CC No. 1203/97 on the file of the J.M.F.C., Navalgund. The accused prosecuted for committing an offence punishable under Section 394, IPC and was convicted and sentenced to undergo Rigorous Imprisonment for a period of two years and also directed to pay a fine of Rs. 2000/- in default to suffer six months Simple Imprisonment. In Appeal Crl. A. No. 93/2001 preferred by the petitioner and other convicted accused separately, the Principal Sessions Judge, confirmed the order of the conviction and also the sentence imposed. Being aggrieved by the said orders, the present revision is filed.
2. The Counsel for the petitioner fairly conceded that he would not advert to themerits of the case to challenge the conviction, but however contended that the total period of detention undergone by the petitioner in this case and in the other unconnected cases would offer him the benefit of set off under Section 428, Cr.P.C.
3. The certified copies of the proceedings of the trial Court is furnished for perusal. In the instant case, the petitioner was directed to be produced in the case in question by issuance of a body warrant by 27-3-1997. However, the petitioner was produced before the trial Court only on 22-1-1998. Since then the accused is continues to be in custody even to this day. The judgment of conviction was passed by that trial Court on 5-10-2001. The appeal came to be dismissed on 16-2-2002.
4. The relevant provision of Section 428, Cr.P.C. reads thus :
428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.- Where an accused person has on conviction, been sentenced to imprisonment for a term, not being imprisonment of 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, if any, of that term of imprisonment imposed on him.
It is submitted by the counsel for the petitioner that in other cases where the petitioner was tried he has been acquitted and he was an under-trial prisoner in the said cases during the trial. It may not be very germane to consider the detention of the accused in other cases prior to 27-3-1997 on which date, the body warrant was issued and on 22-1-1998, the accused was produced pursuant to the body warrant for the first time before the trial Court. The provisions of Section 428, Cr.P.C. make it succinctly clear that the detention of the accused during the pendency of the investigation trial or enquiry in the same case is liable to be set off against the sentence of imprisonment whatever imposed. In the present case, the trial Court has imposed sentence of R.I. for a period of two years. The date of production of the accused before the trial Court pursuant to body warrant on 22-1-1998 is taken as the commencement of an under-trial detention in the case by the date of disposal of the case before the trial Court on 5-10-2001, the accused-petitioner had completed total period of detention of three years nine months which is much more than the sentence imposed. The Supreme Court in Government of Andhra Pradesh v. Anne Venkateswara Rao AIR 1977 SC 1096 : 1977 Cri LJ 935. At para 8 makes the following observations :
8. There is however substance in the other point raised by the writ petitioners regarding the computation of the period during which the writ petitioner in each case should be held to have suffered imprisonment on conviction. In A.V. Rao's case (W.P. 1865/76,) he was in detention under the Preventive Detention Act when the First Information Report was lodged on December 18, 1969 in connection with the Sessions Cases. Some of the co-accused in these cases were arrested and produced before the Magistrate for remand on December 19, 1969, but Rao was produced before the Magistrate some time in April 1970 after he was released from preventive detention. It was argued that he also could have been produced before the Magistrate for remand on December 19, 1970. On behalf of the respondent, State of Andhra Pradesh, it was contended that as Rao was already in detention under the Preventive Detention Act, it was not possible to produce him before the Magistrate for remand until the period of Preventive detention was over. We do not find any justification in law for the position taken up by the State. Rao being already in custody, the authorities could have easily produced him before the Magistrate when the First Information Report was lodged. Nothing has been pointed out to us either in the preventive detention law or the Code of Criminal Procedure which can be said to be a bar to such a course. That being so we think that the claim that the entire period from December 19, 1969, when many of the co-accused were produced before the Magistrate to April 18, 1970 should be treated as part of the period during which Rao was under detention as an under trial prisoner, must be accepted as valid. A.V. Rao's appeal No. 484 of 1976 is allowed to this extent.
In the said case, primarily the accused sought remission of sentence under the Prisons Act contending that his detention under the Preventive Detention Act has to be counted in continuation with the period of detention which the accused has undergone in the Sessions Case. The sum total of detention period under the Preventive Detention Act and the detention pursuant to conviction in the Sessions Case was to be aggregated and thus he was entitled to remission under the Prisons Act. The Supreme Court however negatived the contention of the accused holding that the provisions of Sections 427 and 428, Cr.P.C. do not control the provisions of grant of remission under the Prisons Act, but however alternatively found that the period of detention undergone by the petitioner under the Preventive Detention Act which coincides with the registration of the F.I.R. in the Sessions Case has to be construed as a detention in the Sessions Case. Since the authorities despite issuance of warrant by the Court, did not produce the accused before the Sessions Court. The Supreme Court-found that there is no justification on the part of the Police in not producing the accused immediately pursuant to the order of warrant when other accused were produced. Therefore, the period of detention subsequent to the registration of FIR was held to be a detention in the Sessions Case and thus granted the benefit of set off under Section 428, Cr.P.C.
5. The decision of the Delhi High Court in K.C. Das v. The State 1979 Cri LJ 362 at paras 3, 4, 7, 9, 10 and 12 made the following observations :
3. Take a simple illustration. An accused is arrested in one case on 1-1-1977. He is arrested in another case on 1-1-1978, while the trial of the first case is proceeding. In the first case he is convicted and sentenced on 31-1-1978 to two years imprisonment. Under Section 428 the accused will be entitled to set off his period of detention from 1-1-1977 to 31-1-1978 against that term of imprisonment imposed on him in the first case. This legal position is incontestable.
4. To take the illustration further, suppose in the second case the accused is convicted on 31-3-1978 and sentenced to three years imprisonment. Now the accused claims that he is entitled to set off the pre-trial detention in the second case as well. In other words he claims that the period of detention from 1-1-1977 till 31-3-1978 be set off against the sentence of imprisonment imposed on him in the second case. The short question is : Is he entitled to set off the period of detention against his sentence in the second case though he had the benefit of Section 428 once in the first case?
7. On a true interpretation of the section it appears to us that in the second case also in which the accused person was convicted on 31-3-1978 he will be entitled to set off the period of pre-trial detention i.e. 1-1-1977 to 31-3-1978 against the sentence of three years imposed on him. The Statute does not make any distinction between the first case and the second case. The principle is the same. It has to be applied to all cases even-handedly and uniformly.
9. The words "of the same case" are important. The section speaks of the "period of detention" undergone by the accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, inquiry 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, inquiry or trial in connection with the "same case" in which he has been convicted.
10. Section 428 provides that the period of detention of an under-trial prisoner shall be set off against the term of imprisonment imposed on him on conviction. Will it not be true to say that the accused is an under-trial prisoner in the second case in our illustration. If it is so he will be entitled to set off his pre-conviction period against the term of imprisonment imposed on him in the second case as in the first. We see no ground to deny him the benefit in the second case.
12. The principle of Section 428 has to be applied in all cases whether the accused is convicted in one case or many, whether simultaneously or at different times. The reason is that in the second case the accused person remains an untried and unsentenced prisoner till his trial is concluded. At the end of imprisonment (sic). Before trial is finished he remains an unconvicted person accused of a crime. Nothing more than this. The statute says that if on trial he is convicted and a term of imprisonment is imposed allow him set off of the period of pre-trial detention. Therefore, if the accused person is in detention as an unconvicted, untried or unsentenced prisoner and is, on trial, convicted and sentenced to a term of imprisonment he is entitled to set off. Whether such period of pre-trial detention is common to a considerable extent in the two cases is of no consequence to the application of Section 428.
6. The petitioner in the instant case, is in custody since 27-3-1997 by which date it was directed that the accused to be produced by issuance of a body warrant, for whatever reasons the accused was not produced, but however it will not take away the right of the accused to have the benefit of the set off from the period 27-3-1997 as held by the Supreme Court in AIR 1977 SC 1096 : 1977 Cri LJ 935 cited supra a deemed custody in the case is to be inferred from the date of order for prosecution of the accused whether or not produced before the Court on the said date.
7. Therefore considering the case from any angle, it is abundantly clear that the period of under trial detention undergone by the petitioner is over and above the period of sentence imposed and the accused is entitled to the benefit of set off under Section 428, Cr.P.C. Since the period of under-trial detention is in excess of the sentence imposed, the sentence is deemed to have been served.
8. Accordingly, the Revision is dismissed. However, the accused is directed to be released forthwith for the reasons stated above.