Madras High Court
Kaviyarasan vs The Superintendent Of Prison on 3 September, 2020
Author: N. Anand Venkatesh
Bench: N.Anand Venkatesh
1 Crl.O.P No.14729 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDERS RESERVED ON : 25.01.2021
PRONOUNCING ORDERS ON : 29.01.2021
CORAM
THE HONOURABLE JUSTICE MR.N.ANAND VENKATESH
Crl.O.P No.14729 of 2020
Kaviyarasan ... Petitioner
.Vs.
1.The Superintendent of Prison,
Central Prison,
Cuddalore-4.
2.The Deputy Superintendent of Police,
Q-Branch, CID,
Ramanathapuram.
3.The Superintendent of Police,
Central Prison,
Madurai. .. Respondents
[R2 & R 3 are Suo motu impleaded as per
Order in Crl.OP.No.14729 of 2020 dt.21.01.2021]
https://www.mhc.tn.gov.in/judis/
2 Crl.O.P No.14729 of 2020
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to issue a direction to the respondent to consider
the representation of the petitioner dated 3.9.2020 and set off the
petitioner's remand period from 04.09.2014 to 31.1.2020 as on under
trial prisoner produced under P.T.Warrant in S.C.No.7 of 2017 (On the
file of the Sessions Court for Exclusive Trial of Bomb Blast Cases,
Poonamallee, Chennai.
For Petitioner : Mr.M.Radhakrishnan
for Mr.P.Pugalenthi
For Respondents : Mr.M.Mohamed Riyaz
Additional Public Prosecutor
ORDER
This Criminal Original Petition has been filed seeking a direction to the Respondents, to consider the representation made by the Petitioner wherein, the Petitioner had sought for set-off of the remand period of the Petitioner from 04.09.2014 to 31.01.2020, against the sentence period imposed in S.C.No.07 of 2017, by the Sessions Court for the Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee, by order dt. 30.01.2020.
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2. The Petitioner was arrested on 11.03.2014, based on the FIR registered in Crime No.47 of 2014 by the Othakadai Police Station, Madurai and he was remanded to Judicial Custody, for various offences under The Indian Penal Code, 1860 (hereinafter referred to as “IPC”), The Explosive Substances Act, 1908 (hereinafter referred to as “ES Act”) and Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as “UAP Act”). This case is now pending at the stage of trial in S.C. No.401 of 2015, on the file of the VI Additional District and Sessions Judge, Madurai.
3. When the Petitioner was in judicial custody in the above case, he was formally arrested by the Q-Branch, CID, Ramanathapuram Circle in Crime No.10 of 2014, through a PT Warrant and he was remanded to judicial custody on the same day, for various offences under IPC, ES Act and UAP Act. In this case, the Petitioner was arrayed as A4, and he underwent trial in S.C. No.7 of 2017 and by judgement dt. 30.01.2020, the Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee, convicted the Petitioner for all the offences and the maximum sentence was imposed for offences under https://www.mhc.tn.gov.in/judis/ 4 Crl.O.P No.14729 of 2020 the UAP Act and the ES Act for which he was sentenced to undergo five years Rigorous Imprisonment and all the sentences were ordered to run concurrently. The Sessions Court ordered for set-off under Section 428 of The Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) for the remand period already undergone by the Petitioner from 25.03.2014 to 04.09.2014.
4. When the Petitioner was in judicial custody in the above cases, he was arrested in yet another case by the National Investigation Agency (NIA) in R.C.No.01 of 2014, and he was remanded to judicial custody for various offences under IPC, ES Act and UAP Act, on 09.04.2014. This case is now pending in S.C.No.05 of 2014, at the stage of trial before the Special Court, Pondicherry.
5. It is also seen from records that the extension of remand of the Petitioner in Crime No. 10 of 2014 beyond 90 days up to 180 days by the Judicial Magistrate, Thirupathur, by dismissing the application under Section 167(2) of Cr.P.C., became a subject matter of challenge before this Court in Crl. R.C. (MD) No.370 of 2014. This Court https://www.mhc.tn.gov.in/judis/ 5 Crl.O.P No.14729 of 2020 passed a detailed order on 02.09.2014, allowing the Criminal Revision Petition and setting aside the extension of remand. The Petitioner was directed to be released forthwith unless his detention has been authorised by some other order in connection with some other case. Thus, by virtue of this order, the detention of the Petitioner, in this case, came to an end with effect from 02.09.2014. However, the Petitioner could not come out of jail since his remand continued in the other cases.
6. As stated supra, the case in Crime No.10 of 2014, ended in conviction and sentence in S.C.No.07 of 2017, by judgement dt. 30.01.2020, wherein the maximum sentence imposed on the Petitioner, was five years of Rigorous Imprisonment. The Sessions Court ordered for set-off of the pre-trial detention period from 25.02.2014 to 04.09.2014, and the Petitioner is seeking for set-off of the entire period he was inside the jail by virtue of the other two cases, till date. The Petitioner has filed the present Criminal Original Petition seeking for the said relief.
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7.Mr. M. Radhakrishnan, learned counsel appearing on behalf of the Petitioner by relying upon the judgement of the Hon’ble Supreme Court in State of Maharashtra v. Najakat Alia Mubarak Ali reported in (2001) 6 SCC 311, submitted that the Petitioner is entitled to set-off for the entire period of detention undergone till date including the other two cases and that the set-off cannot be confined only for the pre-trial detention in Crime No.10 of 2014 alone. The learned counsel for the petitioner submitted that even though this Court had set aside the extension of remand and directed the Petitioner to be released forthwith, the Petitioner was not able to come out of the jail by virtue of the other 2 cases, and hence, the Petitioner had undergone detention for the entire period till date. Therefore, by virtue of this judgment, the Petitioner can seek set-off of the entire period of detention. The learned counsel for the petitioner relied upon the following portions of the judgement, and the same is extracted hereunder:
“2.An accused has been convicted and sentenced to imprisonment in two criminal cases. As he was arrested on the same day in connection with both the cases he remained in jail as an undertrial prisoner during the same period in both cases. The question mooted in this appeal is this: is it permissible for him to claim the benefit of set-off envisaged in Section 428 of https://www.mhc.tn.gov.in/judis/ 7 Crl.O.P No.14729 of 2020 the Code of Criminal Procedure (for short “the Code”) in both the cases? As the High Court of Bombay has answered the question in the affirmative by the impugned judgment this appeal is filed by the State of Maharashtra in challenge of the said view of the High Court.
15. The purpose is therefore clear that the convicted person is given the right to reckon the period of his sentence of imprisonment from the date he was in jail as an undertrial prisoner. In other words, the period of his being in jail as an undertrial prisoner would be added as a part of the period of imprisonment to which he is sentenced. We may now decipher the two requisites postulated in Section 428 of the Code:
(1) During the stage of investigation, enquiry or trial of a particular case the prisoner should have been in jail at least for a certain period.
(2) He should have been sentenced to a term of imprisonment in that case.
16. If the above two conditions are satisfied then the operative part of the provision comes into play i.e., if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of investigation, enquiry or trial, the convicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words “if any” in the section amplify that if there is no balance period left after such deduction the convict will be entitled to be set free from jail, unless he is required in any other case. In other words, if the convict was in prison, for whatever reason, https://www.mhc.tn.gov.in/judis/ 8 Crl.O.P No.14729 of 2020 during the stages of investigation, enquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him should be counted as part of the sentence imposed on him.
17. In the above context, it is apposite to point out that very often it happens, when an accused is convicted in one case under different counts of offences and sentenced to different terms of imprisonment under each such count, all such sentences are directed to run concurrently. The idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact and in effect be imprisonment for other counts as well.
18. 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 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 in 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.
19. Various High Courts have expressed on this question. A Division Bench of the Delhi High Court has dissented from a https://www.mhc.tn.gov.in/judis/ 9 Crl.O.P No.14729 of 2020 contrary view taken by a Single Judge of that High Court and held in K.C. Das v. State [1979 Cri LJ 362: ILR (1978) 2 Del 341 (Del)] that the statute does not make any distinction between the first case and the second case for application of Section 428 of the Code. A Division Bench of the High Court of Gauhati in Lalrinfela v. State of Mizoram [1982 Cri LJ 1793 (Gau)] has adopted the same view. Lahiri and Hansaria, JJ., said in the said decision that: (Cri LJ p. 1797, para 7) ‘If an accused is simultaneously arrested and detained in two or more cases and on conviction obtains set-off for the period of his detention in the first case he is not ineligible to obtain set-off for the period in the subsequent cases. In each case the court is to count the number of days the accused was in such detention separately and the liability to undergo imprisonment on conviction should be restricted to the remainder of the terms of the imprisonment imposed on him in that case.’
20. A Division Bench of the Andhra Pradesh High Court in Gedala Ramulu Naidu v. State of A.P. [1982 Cri LJ 2186 (AP)] and a Division Bench of the Madras High Court in Chinnasamy v. State of T.N. [1984 Cri LJ 447: 1983 MLJ (Cri) 531 (Mad)] have also adopted the same view in tune with the interpretation given by us. While speaking for the Division Bench of the Madras High Court, Natarajan, J. (as he then was) has made a survey of most of the decisions thus far rendered by different High Courts and opted to flow with the view adopted by all the other High Courts almost uniformly.
21. We have no reason to think that the High Courts mentioned above have gone wrong in taking the view that https://www.mhc.tn.gov.in/judis/ 10 Crl.O.P No.14729 of 2020 Section 428 of the Code permits the accused to have the period undergone by him in jail as an undertrial prisoner set-off against the period of sentence imposed on him irrespective of whether he 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 [(1984) 4 SCC 348: 1984 SCC (Cri) 616].”
8. The learned counsel also relied upon the judgment of the Hon’ble Supreme Court in State of Punjab v. Madam Lal reported in (2009) 5 SCC 238 to substantiate his submission.
9. Per contra, the learned Additional Public Prosecutor, appearing on behalf of the respondents submitted that the language used under Section 428 of Cr.P.C., makes it very clear that the period of detention undergone by an accused in a different case cannot be set-off in connection with the present case in Crime No.10 of 2014 and the expression used under the said provision is “the same case”. The learned Additional Public Prosecutor further submitted that the other two criminal cases against the Petitioner is still pending at the stage of trial and therefore, the judgement relied upon by the learned counsel https://www.mhc.tn.gov.in/judis/ 11 Crl.O.P No.14729 of 2020 for the Petitioner will not apply to the facts of the present case, and that was a case where the concerned accused person was convicted and sentenced in all the cases and the Hon’ble Supreme Court by relying upon Section 427 of Cr.P.C., held that the concerned accused persons were entitled to a set-off in all the cases in view of the doctrine of merger of sentences. The learned Additional Public Prosecutor, to substantiate his submission strongly relied upon the judgement of the Hon’ble Supreme Court reported in Atul Manubhai Parekh v. CBI reported in (2010) 1 SCC 603. The relevant portions relied upon in this judgement are extracted hereunder:
“3. The short point involved in this application is whether a person, who has been convicted in several cases and has suffered detention or imprisonment in connection therewith, would be entitled to the benefit of set-off in a separate case for the period of detention or imprisonment undergone by him in the other cases.
6. Ms Jaiswal also referred to the three-Judge Bench decision of this Court in State of Punjab v. Madan Lal [(2009) 5 SCC 238 : (2009) 2 SCC (Cri) 650] where also the provisions of Section 428 of the Code fell for consideration and the decision in Najakat Alia case [(2001) 6 SCC 311: 2001 SCC (Cri) 1106] was noticed with approval. While deciding the matter, the Hon'ble Judges had occasion to consider the objects and https://www.mhc.tn.gov.in/judis/ 12 Crl.O.P No.14729 of 2020 reasons for introducing Section 428 into the Code of Criminal Procedure, 1973 by amendment. The Hon'ble Judges extracted a portion of the Objects and Reasons, wherein it was stated that: (Najakat Alia case [(2001) 6 SCC 311: 2001 SCC (Cri) 1106], SCC p. 319, para 14) “14. … 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.” Their Lordships emphasised that:
“14. … The new clause provides for the setting off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on him.” (emphasis in original) Their Lordships interpreted the same to mean that the purpose of introduction of Section 428 into the Code was to give the convicted person “the right to reckon the period of his sentence of imprisonment from the date he was in jail as an undertrial prisoner” and that the period of his being in jail as an undertrial prisoner would be added as a part of the period of imprisonment to which he was sentenced.
7. Ms Jaiswal, therefore, submitted that in the light of the aforesaid decisions the Petitioner was entitled to a set-off of all periods of detention unconnected with the case in which he has been convicted and sentenced. It was urged that the High Court had erred in rejecting the Petitioner's prayer for grant of set-off against periods of imprisonment already undergone by him in connection with other cases.
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8. Ms Jaiswal's submissions were opposed on behalf of the Central Bureau of Investigation by the learned Additional Solicitor General who contended that the question involved in these appeals had fallen for consideration before this Court earlier, also by a three-Judge Bench in Champalal Punjaji Shah v. State of Maharashtra [(1982) 1 SCC 507: 1982 SCC (Cri) 265] where this Court was called upon to decide as to whether the period of detention under the Preventive Detention Act could be set-off under Section 428 of the Code. In the said context, this Court held that the period of detention under preventive detention laws could not be counted for the purposes of Section 428 CrPC. It was further contended that the question of applicability of Section 428 in respect of a period which had lapsed in an earlier case, could not be set-off against the term of imprisonment imposed in the latter case. It was held that in order to secure the benefit of Section 428 of the Code, the prisoner has to show that he had been detained in prison for the purpose of investigation, enquiry or trial of the case for which he is later on convicted and sentenced, but he cannot claim a double benefit under Section 428, 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 offence as well. Their Lordships further held that if a person is undergoing a sentence of imprisonment on being convicted of an offence in one case during the period of investigation, enquiry or trial of some other case, he cannot claim that the period occupied by such investigation, enquiry or trial should https://www.mhc.tn.gov.in/judis/ 14 Crl.O.P No.14729 of 2020 be set-off against the sentence of imprisonment to be imposed in the latter case, even though he was under detention during such period. In such a case, the period of detention is really a part of the period of imprisonment which he is undergoing on being sentenced for another offence.
10. We have carefully considered the submissions made on behalf of both the parties, having particular regard to the two views expressed as to whether the period of detention undergone by an accused in some other case could be the subject-matter of an order of set-off in connection with a different case.
11.At this juncture, it may be relevant to reproduce the provision of Section 428 CrPC:
“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 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, if any, of the term of imprisonment imposed on him:
Provided that in cases referred to in Section 433-A, such period of detention shall be set-off against the period of fourteen years referred to in that section.” https://www.mhc.tn.gov.in/judis/ 15 Crl.O.P No.14729 of 2020
12.From the wording of Section 428 it is clear that what is to be set-off is the period of detention, if any, undergone by the convict during the investigation, enquiry or trial of the same case and before the date of such conviction. What has fallen for the interpretation of the courts is the expression “the same case”. While in one set of judgments it has been held that periods of detention undergone in connection with other cases can be counted towards set-off under Section 428 CrPC in respect of the conviction in another case, in the other set of cases it has been held that it cannot.
13. However, even in Najakat Alia case [(2001) 6 SCC 311: 2001 SCC (Cri) 1106] one of the three Hon'ble Judges took a dissenting view that set-off under Section 428 of the Code would have to be in respect of the detention undergone in respect of the same case. It is the said view which had earlier been accepted in Raghbir Singh v. State of Haryana [(1984) 4 SCC 348: 1984 SCC (Cri) 616] and in Champalal Punjaji Shah case [(1982) 1 SCC 507: 1982 SCC (Cri) 265].
14. The wording of Section 428 is, in our view, clear and unambiguous. The heading of the section itself indicates that the period of detention undergone by the accused is to be set-off against the sentence of imprisonment. The section makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. It is quite clear that the period to be set-off relates only to pre-conviction detention and not to imprisonment on conviction. https://www.mhc.tn.gov.in/judis/ 16 Crl.O.P No.14729 of 2020
15. Let us test the proposition by a concrete example. A habitual offender may be convicted and sentenced to imprisonment at frequent intervals. If the period of pre-trial detention in various cases is counted for set-off in respect of a subsequent conviction where the period of detention is greater than the sentence in the subsequent case, the accused will not have to undergo imprisonment at all in connection with the latter case, which could not have been the intention of the legislature while introducing Section 428 in the Code in 1973.
16. The reference made in the several decisions cited before us to Section 427 CrPC appears to be a little out of focus since the same deals with several sentences passed in the same case against the same accused on different counts which are directed to run concurrently. Section 428 CrPC deals with a different situation, where the question of merger of sentence does not arise and the period of set-off is in respect of each separate case and the detention undergone by the accused during the investigation or trial of such case.
17. The philosophy of Section 428 CrPC has been very aptly commented upon by this Court in Govt. of A.P. v. Anne Venkatesware [(1977) 3 SCC 298: 1977 SCC (Cri) 508] in the following terms: (SCC p. 303, para 5) ‘5. … Section 428 provides that the period of detention of an accused as an undertrial prisoner shall be set-off against the term of imprisonment imposed on him on conviction.’ (emphasis supplied)
18. In fact, a similar situation arose in Maliyakkal Abdul Azeez v. Collector [(2003) 2 SCC 439: 2003 SCC (Cri) 551] https://www.mhc.tn.gov.in/judis/ 17 Crl.O.P No.14729 of 2020 wherein it was sought to be argued on behalf of the Petitioner that he was entitled to the benefit of set-off under Section 428 CrPC for the period of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. While deciding the said case, the Hon'ble Judges observed that Section 428 CrPC had been brought on the statute book for the first time in 1973 and was incorporated in the light of the proposal put forward by the Joint Select Committee which noticed that in many cases the accused persons were kept in prison for a very long period as undertrial prisoners and in some cases the period spent in jail by undertrial prisoners far exceeded the sentence of imprisonment ultimately awarded. It was also noticed by the Select Committee with concern that a large number of prisoners in the overcrowded jails of the country were undertrial prisoners and that Section 428 CrPC was introduced to remedy the unsatisfactory state of affairs by providing for setting off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on the accused.
19. The decision in Maliyakkal Abdul Azeez [(2003) 2 SCC 439 : 2003 SCC (Cri) 551] was rendered after the decision in Najakat Alia case [(2001) 6 SCC 311 : 2001 SCC (Cri) 1106] and we respectfully follow the same as it reiterates the law laid down in the earlier cases such as in Anne Venkatesware [(1977) 3 SCC 298 : 1977 SCC (Cri) 508] , Raghbir Singh [(1984) 4 SCC 348 : 1984 SCC (Cri) 616] and Champalal Punjaji Shah [(1982) 1 SCC 507 : 1982 SCC (Cri) 265].
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20. The facts on which the decision was rendered in Najakat Alia Mubarak Ali case [(2001) 6 SCC 311 : 2001 SCC (Cri) 1106] are distinguishable from the facts of this case. In the said case, the convict was undergoing imprisonment in two cases in which he had been convicted, and he claimed that he was entitled to a set-off in respect of both the cases. This Court drawing inspiration from Section 427 on the concurrent running of sentences, held that the Petitioner was entitled to set- off in both cases in view of the doctrine of merger of sentences when directed to run concurrently in a particular case where conviction is on many counts.”
10.The learned Additional Public Prosecutor also relied upon the following judgements in order to substantiate his submissions:
(a) Govt. of A.P. v. Anne Venkatesware reported in (1977) 3 SCC 298;
(b) Champalal Punjaji Shah v. State of Maharashtra reported in(1982) 1 SCC 507;and
(c) Raghbir Singh v. State of Haryana reported in(1984) 4 SCC 348.
11.The learned counsel for the Petitioner in reply to the submissions made by the learned Additional Public Prosecutor submitted that the judgements cited by him were rendered by a 3-member Bench and that all the judgements cited by the learned Additional Public https://www.mhc.tn.gov.in/judis/ 19 Crl.O.P No.14729 of 2020 Prosecutor are judgements rendered by 2-member Benches and this Court will be bound by the judgement of the larger Bench and the same has to be relied upon. To substantiate this submission, the learned counsel relied upon the judgement in Pyare Mohan Lal v. State of Jharkhand reported in (2010) 10 SCC 693.
12. This Court has carefully considered the submissions made on either side and the materials available on record.
13.The interesting question entreating an answer in the present case is whether the Petitioner will be entitled to claim the benefit of set-off under Section 428 of Cr.P.C., for the entire period from 25.03.2014 till date, against the sentence imposed in S.C.No. 7 of 2017? The fundamental question that would require consideration of this Court to find an answer for the main issue would be as to whether the Petitioner who is in pre-trial detention in the other 2 cases pending in S.C.Nos.401 of 2015 and 05 of 2014, can claim the benefit of detention in those cases and seek a set-off towards the sentence imposed in S.C. No.07 of 2017?
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14. Section 428 of Cr.P.C., provides that where a person has, on conviction, been sentenced to imprisonment for a term, 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. The provision for a set-off of the under-trial period did not exist in the previous Code. Its introduction in the Cr.P.C., was to remedy the unsatisfactory state of affairs in Prisons where convicts were being detained in Prison as under-trials for unduly long periods, many times for periods longer than the actual sentence of imprisonment that could be imposed on them on conviction. Section 428 of Cr.P.C., was introduced to remedy that situation by setting-off the period served as an under-trial prisoner from the period of sentence actually awarded.
15. The object behind the introduction of Section 428 of Cr.P.C., was explained by the Hon’ble Supreme Court in Maliyakkal Abdul Azeez v. Collector reported in (2003) 2 SCC 439, wherein it was observed as under:
https://www.mhc.tn.gov.in/judis/ 21 Crl.O.P No.14729 of 2020 “9.Section 428 of the Code was brought on the statute- book for the first time in 1973. It was incorporated in the light of the proposal put forward by the Joint Select Committee. It was noticed by the Committee that in many cases the accused persons are kept in prison for a very long period as undertrial prisoners and in some cases the period spent in jail by undertrial prisoners far exceeded the sentence of imprisonment ultimately awarded. It was also noticed by the Committee with concern that a large number of prisoners in the overcrowded jails of the country were undertrial prisoners. The provision was introduced to remedy the unsatisfactory state of affairs, by providing for setting off the period of detention as undertrial prisoners against the sentence of imprisonment imposed on the accused. Views of the Committee were expressed in the following words:
‘The Committee has noted the distressing fact that in many cases accused persons are kept in prison for very long period as undertrial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as undertrial 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 undertrial 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 https://www.mhc.tn.gov.in/judis/ 22 Crl.O.P No.14729 of 2020 noted that a large number of persons in the overcrowded jails of today are undertrial 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 undertrial 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.’”
16. The expression “same case” occurring in Section 428 of Cr.P.C., came up for consideration before the Hon’ble Supreme Court in Najakat Alia Mubarak Ali (cited supra). Thomas, J drew inspiration from the preceding Section 427 to hold that there was nothing in Section 428 of Cr.P.C., for the Court to hold that the benefit conferred by the provision must be confined to one case and not more than that. The Court said:
“15.The purpose is therefore clear that the convicted person is given the right to reckon the period of his sentence of imprisonment from the date he was in jail as an undertrial prisoner. In other words, the period of his being in jail as an undertrial prisoner would be added as a part of the period of imprisonment to which he is sentenced. We may now decipher the two requisites postulated in Section 428 of the Code:
(1) During the stage of investigation, enquiry or trial of a particular case the prisoner should have been in jail at least for https://www.mhc.tn.gov.in/judis/ 23 Crl.O.P No.14729 of 2020 a certain period.
(2) He should have been sentenced to a term of imprisonment in that case.
16. If the above two conditions are satisfied then the operative part of the provision comes into play i.e. if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of investigation, enquiry or trial, the convicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words “if any” in the section amplify that if there is no balance period left after such deduction the convict will be entitled to be set free from jail, unless he is required in any other case. In other words, if the convict was in prison, for whatever reason, during the stages of investigation, enquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him should be counted as part of the sentence imposed on him.”
17. Phukan, J concurred with the aforesaid view of Thomas, J while R.P Sethi, J dissented. There is no difficulty in applying the aforesaid ratio in Najakat Alia Mubarak Ali if the case at hand dealt with multiple cases of conviction. Najakat Alia Mubarak Ali was a case where the accused claiming set-off was convicted and sentenced to https://www.mhc.tn.gov.in/judis/ 24 Crl.O.P No.14729 of 2020 imprisonment in two cases. However, the principle has no application where an accused claims set-off for periods of detention undergone for cases pending trial, against the period of imprisonment awarded in another case.
18. As a matter of fact, the fractured opinions in Najakat Alia Mubarak Ali were reconciled by the Supreme Court in Atul Manubhai Parekh v. CBI reported in(2010) 1 SCC 603. The Hon’ble Supreme Court held that various periods of pre-trial detention in several cases cannot be set-off against a subsequent detention as this would be completely contrary to the legislative intent behind Section 428 of Cr.P.C. The Court went on to hold as under:
“14.The wording of Section 428 is, in our view, clear and unambiguous. The heading of the section itself indicates that the period of detention undergone by the accused is to be set-off against the sentence of imprisonment. The section makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. It is quite clear that the period to be set-off relates only to pre-conviction detention and not to imprisonment on conviction.
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15. Let us test the proposition by a concrete example. A habitual offender may be convicted and sentenced to imprisonment at frequent intervals. If the period of pre-trial detention in various cases is counted for set-off in respect of a subsequent conviction where the period of detention is greater than the sentence in the subsequent case, the accused will not have to undergo imprisonment at all in connection with the latter case, which could not have been the intention of the legislature while introducing Section 428 in the Code in 1973.” The decision in Najakat Alia Mubarak Ali was distinguished by holding as under:
“20. The facts on which the decision was rendered in Najakat Alia Mubarak Ali case [(2001) 6 SCC 311 : 2001 SCC (Cri) 1106] are distinguishable from the facts of this case. In the said case, the convict was undergoing imprisonment in two cases in which he had been convicted and he claimed that he was entitled to a set-off in respect of both the cases. This Court drawing inspiration from Section 427 on the concurrent running of sentences, held that the Petitioner was entitled to set- off in both cases in view of the doctrine of merger of sentences when directed to run concurrently in a particular case where conviction is on many counts.”
19. The decision in Atul Manubhai Parekh (cited supra) is, therefore, an authority for the proposition that various periods of under trail detention cannot be clubbed for set-off against imprisonment in a https://www.mhc.tn.gov.in/judis/ 26 Crl.O.P No.14729 of 2020 subsequent conviction. The ratio in Najakat Alia Mubarak Ali, can be resorted to if there are multiple convictions. As the case on hand concerns only a sentence of imprisonment in one case, there is no question of any merger of sentences either. Therefore, the ratio of Najakat Alia Mubarak Ali will have no application to the facts of this case.
20.The decision in Atul Manubhai Parekh, was followed by a judgement of the Division Bench of the Patna High Court in Prabhu Sah v. State of Bihar reported in (2011) SCC OnLine Pat 513 : (2012) Cri LJ 991, where Navniti Prasad Singh, J (as he then was) opined thus:
“27.From the aforesaid judgments what we find the true interpretation of S. 428 of the Code of Criminal Procedure is that the period of set-off as contemplated under Section 428, Cr. P.C. would be the period when in that case a person is first under remand custody as an under-trial and then he is sentenced. If there be more than one case, then, the remand period of each case would be set-off against sentence in that case alone separately for each case even though the remand period may overlap, but the period spent as serving out sentence as a convict is one case cannot be taken into account as a remand period as an under-trial in another case. https://www.mhc.tn.gov.in/judis/ 27 Crl.O.P No.14729 of 2020
28. In our view, taking any other view would be contrary to the legislative policy. The legislative policy of Section-428 is not to reduce sentence or obliterate the period of punishment but to restrict the sentence effectually to the period awarded by giving benefit of pre-sentence detention in the case where he is ultimately sentenced otherwise as noticed in Atul Manubhai Parekh's case, (AIR 2010 SC (Supp) 429) (supra) it would lead to absurd and unintended results. A person on different dates would commit different and distinct offences but if multiple benefits were to be given of pre-sentence detention of one case to another then if he was ultimately sentenced on different dates for different offences for different periods which we may say to be 3 years, 4 years or 7 years, he will get away with only singular punishment of 7 years even though he has committed many more offences and was punished several times, he would go escort free unpunished so far as the other crime is concerned. That surely is not the legislative intent. The set-off would ultimately be on a case to cases basis excluding period during which he is serving out sentence as substantively he is not then an under-trial. The distinction as repeatedly drawn by the Apex Court between the nature and status of detention has to be kept in mind.”
21. The High Courts of Gujarat (KalimAhemad v. State of Gujarat reported in (2012) 2 GLH 234), Chhattisgarh (TulsiSarthi v.
Statereported in 2015 4 RCR Cri 77), Bombay (Saquib Abdul https://www.mhc.tn.gov.in/judis/ 28 Crl.O.P No.14729 of 2020 Hamid Nachan v. The Superintendent reported in (2017) SCC Online Bom 738), Kerala (Sony George v. State reported in 2017 4 KLJ 800), and Allahabad (SudamaUraon v. State of U.P reported in 2019 SCC Online All 5806) have followed the decision in Atul Manubhai Parekh and concluded that the period of set-off contemplated under Section 428 of Cr.P.C., is case-specific.
22. In the facts of the present case, admittedly only one case has ended in a conviction and sentence in S.C. No.07 of 2017, and the other two cases are still at the stage of trial. This Court is not in agreement with the submissions of the learned counsel for the Petitioner to the effect that the judgement of the Hon’ble Supreme Court in Najakat Alia Mubarak Ali, referred supra will apply to this case. The said judgement would have applied if there had been convictions in all the three cases and in which case inspiration could have been drawn from Section 427 of Cr.P.C., and the doctrine of merger of sentences could have been applied.
https://www.mhc.tn.gov.in/judis/ 29 Crl.O.P No.14729 of 2020
23. A plain reading of Section 428 of the Cr.P.C., makes it very clear that the period of set-off contemplated is case-specific. However, when there are multiple convictions, such a set-off can be resorted to as held by the Hon’ble Supreme Court in Najakat Alia Mubarak Ali (cited supra), since when the convict who is undergoing a sentence in a particular case is also convicted in another case and starts undergoing the sentence in the second case, the sentence undergone by him merges with the same period during which he is undergoing the sentence in the first case. This will be the effect of a combined reading of Sections 427 and Section 428 of the Cr.P.C.
24.In order to get more clarity, a hypothetical situation where the Petitioner is acquitted in the two cases that are pending against him at the stage of trial may be taken. In such a scenario, can it be held that the pre-trial detention of the Petitioner in those two cases in which he is acquitted, can be considered for set-off against the period of sentence that is undergone by him in S.C. No.07 of 2017? Without any doubt, the answer will be in the negative. By no stretch Section 428 of the Cr.P.C., will have an application in such a scenario and to apply https://www.mhc.tn.gov.in/judis/ 30 Crl.O.P No.14729 of 2020 the said provision will amount to causing violence to the plain language used in the said provision. The pre-trial detention in every case will apply only to that case for the purpose of a set-off, and that period can never be used towards set-off in any other case. This scenario will change once there is a conviction and sentence in the second and subsequent cases also, in which event the merger of sentences will start operating. Even in such a scenario, the pre-trial detention will be case-specifically adjusted towards the sentence in that case and what actually gets merged is the ultimate conviction in those cases when it is running concurrently during the same period.
25. In view of the above discussion, the Petitioner who is in pre-trial detention in the other two cases pending in S.C.Nos.401 of 2015 and 05 of 2014, cannot claim the benefit of detention in those cases and seek for a set-off towards the sentence imposed in S.C. No.7 of 2017. In view of this finding, the Petitioner will not be entitled to claim the benefit of set-off under Section 428 of Cr.P.C., for the entire period from 25.03.2014 till date, against the sentence imposed in S.C. No.07 of 2017. The period of set-off as granted by the Sessions Court in https://www.mhc.tn.gov.in/judis/ 31 Crl.O.P No.14729 of 2020 S.C.No. 07 of 2017 for the period from 25.04.2014 to 04.09.2014 is perfectly in order. This Court is not inclined to grant the relief claimed by the Petitioner in this petition, and the Petitioner has to necessarily serve the remaining portion of the sentence after taking into account the set- off period granted by the Sessions Court.
26. In the result, this Criminal Original Petition is dismissed.
29.01.2021
Index : Yes/No
Internet : Yes/No
KP
c
https://www.mhc.tn.gov.in/judis/
32 Crl.O.P No.14729 of 2020
To
1.The Superintendent of Prison,
Central Prison,
Cuddalore-4.
2.The Deputy Superintendent of Police,
Q-Branch, CID,
Ramanathapuram.
3.The Superintendent of Police,
Central Prison,
Madurai.
4.Sessions Court for Exclusive
Trial of Bomb Blast Cases,
Poonamallee, Chennai.
5. VI Additional District and Sessions Judge, Madurai.
6.The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis/ 33 Crl.O.P No.14729 of 2020 N. ANAND VENKATESH,. J.
KP Pre-Delivery order in Crl.OP No.14729 of 2020 29.01.2021 / https://www.mhc.tn.gov.in/judis/