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PETITIONER: GOVT. OF ANDHRA PRADESH & ANR. ETC.

       Vs.

RESPONDENT: ANNE VENKATESWARE ETC. ETC.

DATE OF JUDGMENT17/02/1977

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. BHAGWATI, P.N.

CITATION:  1977 AIR 1096            1977 SCR  (3)   7  1977 SCC  (3) 298  CITATOR INFO :  D          1982 SC 791  (3,4)

ACT:            Code  of Criminal Procedure, 1973, ss. 428 & 418--S.  428         whether  equates  undertrial detention or  remand  detention         with    imprisonment    on    conviction    for    remission         purposes.--Whether allows period of preventive detention  to         be   set   off   against    term    of    imprisonment    on         conviction--S.  418 whether  includes service of warrant  on         accused already in detention.

HEADNOTE:             The cross appeals arose from two writ petitions filed by         A.V. Rao and N. V. Krishnaiah in the High Court.  A.V. Rao’s         case was that while he was already in preventive  detention.         on December 18. 1969. a First Information Report was  lodged         against him in connection with some Sessions cases. Some  of         the  co-accused  in’ these cases were  produced  before  the         Magistrate   on  December 19, 1969 for remand, but  Rao  was         produced  before  him  only  in mid-April,  1970  after  his         release  from  preventive  detention.  The  accused  in  the         Sessions cases were thereafter convicted and sentenced,  and         Rao. filed a writ petition asking for an order on the  State         Government to set off u/s 428 Cr.P.C. 1973, the time between         December  19, 1969 and April 13, 1970, against his  term  of         imprisonment,  treating  the said period as  the  period  of         detention  undergone by him as an undertrial  prisoner,  and         also  to  take  the same into account, for  the  purpose  of         remission  of his sentence under the Prisons Act.  Rao  con-         tended  that  he  could have  been   produced   before   the         Magistrate  for  remand  on December 19,  1969.   The  State         Government  contended that Rao could not be produced  before         the  Magistrate  for remand until the period  of  preventive         detention was over.             In the case of Krishnaiah, he was in detention under the         MISA, when his appeal against conviction in a criminal  case         was  dismissed by the High Court, and a warrant  was  issued         against him on December 1, 1975, but was served on him  only         on  December 30, 1975, when the order against him under  the         MISA was revoked.             The  High  Court rejected  the  petitioners’  contention         regarding  set  off under section 428 Cr.P.C.  but  accepted

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       their contention regarding the benefit  of remission.         Allowing  the appeals by the State, and partly allowing  the         appeals by the original writ petitioners, the Court,             HELD:   (1) Section 428 of the Cr. P.C., 1973 only  pro-         vides  that the period of detention of an accused as  under-         trial prisoner shall be set off against the term of  impris-         onment imposed on him on conviction.  It does not equate  an         "undertrial detention or remand detention with  imprisonment         on  conviction"  or do away with the difference in  the  two         kinds of detention and put them on the .same footing for all         purposes.  [11B-C]         G.V.  Godse v. State of Maharashtra, [1961] 3 SCR 440;  446,         referred to.             (2) S. 428 expressly says that the "period of detention"         mentioned, refers to the detention during the investigation,         enquiry or trial in connection with the "same case" in which         the  accused person has been convicted.  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. [11G, 12--A-B]             (3)  Section 418 does not exclude a case where the  war-         rant  concerns an accused who is already in  detention.   We         have  not been referred to  any provision either in the  Cr.         P.C.  or in the MISA which requires the service of the  war-         rant  to  be delayed until after the  period  of  preventive         detention  is  over. There is no bar to the  preventive  and         punitive  detention  continuing simultaneously.  [13A-B,  C]         2--240SCI/77         8             Haradhan  Saha  & Anr. v. State of West  Bengal  &  Ors.         [1975] 1 SCR 778, referred to.

JUDGMENT:             CRIMINAL APPELLATE JURISDICTION: Criminal  Appeals  Nos.         418-419 and 484-485/76.             (From  the  Judgment  and Order dated  6-7-1976  of  the         Andhra  Pradesh  High Court in Writ  Petition   Nos.   1865,         1870  of  1976 respectively.)             P.  Parmeswara Rao, G. Narayana Rao and A.  K.  Ganguli,         for  the  appellants  in Crl. Appeals  Nos.  418-419/76  and         respondents in Crl. Appeals Nos. 484-485/76.             R.K.  Jain, fox the appellant in Crl. A. No. 484/76  and         respondent in Crl. A. No. 418/76.             S.  Lakshminarasu,  for  the appellant in  Crl.  A.  No.         485/76 and for respondent in Crl. A. No. 419/76.         The Judgment of the Court was delivered by             GUPTA,  J.--These  are a group of four appeals  from   a         common  Judgment  of the Andhra Pradesh  High  Court  partly         allowing two writ petitions, writ petition No. 1865 of  1976         filed  by A.V. Rao, and writ petition No. 1870 of 1976  made         by  N.V. Krishnaiah.  The High Court rejected the  petition-         ers’ prayer for setting off under section 428 of the Code of         Criminal Procedure, 1973 the periods during which they  were         in  preventive  detention against the term  of  imprisonment         imposed on them on their conviction in a sessions trial, but         accepted  their  contention that they were entitled  to  the         benefit of the remission system under the Prisons Act,  1894         for  the  period  during  which they were in jail as  under-         trial   prisoners  before  their  conviction:  Criminal  Ap-         peals  Nos. 418 and 419 of 1976 by State of  Andhra  Pradesh         are  directed against the part of the High Court’s  Judgment         granting  the writ petitioners the benefit of the  remission         system  under the Prisons Act treating for this purpose  the

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       period   of  undertrial detention on the ’same footing as  a         term  of imprisonment on conviction.  Appeal No. 418  arises         out of writ petition No. 1865 of 1976 filed by A.V. Rao  and         Appeal  No. 419 is from writ petition No. 1870 of 1976  made         by  N.V. Krishnaiah.  The writ petitioners have  also  filed         appeals against the part of the. Judgment disallowing  their         prayer for set off under section 428 of the Code of Criminal         Procedure. Criminal Appeals Nos. 484 and 485 of 1976 are  by         A.V.  Rao  and N.V. Krishnaiah respectively.  All  the  four         appeals  are on certificate of fitness granted by  the  High         Court.         The   relevant  facts  are  as follows.   A.V. Rao,   appel-         lant  in   appeal  484  of 1976 and respondent   in   appeal         418  of  1976,   was  in  detention  under  the   Preventive         Detention   Act  when   on  December   18,  1969   a   first         information  report was filed naming him among others as  an         accused in a case involving offences under section 121A  and         120B  read  with  section 395, and section  120B  read  with         section  447 of the Indian Penal Code, ’which gave  rise  to         sessions cases Nos. 106 of 1970 and 6 of 1971 on the of  the         Additional  Sessions Judge, Hyderabad. The  detention  order         under         9         the  preventive detention law was revoked by the State  Gov-         ernment  on April 11, 1970 and Rao was released on the  next         day, April 12. He was then produced before the magistrate in         connection   with   the sessions cases on  April  13,  1970;         there  is some doubt about this date because the  record  at         some  places  mentions  the date as  April  18,  but     the         discrepancy  is  not of any significance  on  the  questions         arising  for decision in these appeals.  On April  10,  1972         Rao.   was   convicted along with others  and  sentenced  to         various  terms  of  imprisonment for  the  offences  charged         against him; the maximum sentence was rigorous  imprisonment         for  four years.  The sentences were directed  to  run  con-         currently.  His appeal against the order of conviction  was.         dismissed by the High Court on November 28, 1975.  He  filed         writ  petition  1865  of 1976 asking for  an  order  on  the         Government   of Andhra Pradesh to set off under section  428         of  the  Code of Criminal Procedure, 1973 the  time  between         December  19,  1969 and April 13, 1970 against his  term  of         imprisonment  treating  the  said period as  the  period  of         detention  undergone by him as undertrial prisoner,  and  to         take  into account the entire period during which he was  in         detention for the purpose of remission of his sentence under         the Prisons Act. The petitioner further claimed that had  he         been free at the time when the F.I.R. was lodged on   Decem-         ber  18,  1969,  he  would  have surrendered immediately and         would  have been produced  before  the court for  remand  on         the next day as some of the co-accused in the case had  been         it  was  submitted that if the  "concerned   authority"  who         could  but  did not "take immediate and necessary  steps  to         produce the petitioner" before the magistrate, the petition-         er should  not  be made to suffer.             The facts of N.V. Krishnaiah"s case are similar.  Krish-         naiah, appellant in appeal No. 485 and respondent in  appeal         No.  419, was also an accused in the sessions cases  106  of         1970  and 6 of 1971 with A.V. Rao and others.   lie  however         was  not  in detention when the F.I.R. was lodged.   He  was         arrested in connection  with  the sessions cases on December         19,  1969 and was in detention on remand from  December  21,         1969  to April 9, 1972.  He was also convicted by the  Addi-         tional  Sessions  Judge on April 10, 1972  and  the  maximum         sentence in his case too was rigorous imprisonment for  four         years. He also preferred an appeal to the High Court against

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       the  order of conviction.  The High Court granted  him  bail         and  he  was  released on bail on April 29,  1972.   He  was         arrested  under  the Maintenance of Internal  Security  Act,         1971 on June 26, 1975.  The High Court dismissed the  appeal         on  November 28, 1975.  A warrant  of  arrest issued by  the         Additional’Sessions Judge on December 1, 1975  was served on         him on December 30, 1975, on which date the detention  order         under  the Maintenance of Internal Security  Act  was   also         revoked.  On these Krishnaiah in his writ petition sought an         order  on the State of Andhra Pradesh to treat  the  "period         from June 26 1975 to November 28, 1975 as remand period" and         to set off under section 428 of the Code of Criminal  Proce-         dure this period during which he was under preventive deten-         tion,  against  the term of imprisonment imposed on  him  on         conviction  in  the sessions cases.  It was  also  contended         that the warrant issued by the Additional Sessions judge  on         December 1, 1975 should have been served on him immediately,         10         that  it was no fault of his that "the concerned  authority"         chose  to serve the warrant on December 30, 1975,  and  that         during this period of one month he should be deemed to  have         been serving the sentence imposed on him., A further  prayer         was  made that the entire period during which he  was  under         detention  be  taken  into  account  for  remission  of  his         sentence under the Prisons Act,             The question for consideration in appeals 418 and 419 of         1976,  preferred by the State of Andhra Pradesh is,  whether         the period of detention undergone by the two writ  petition-         ers  in  connection  with the sessions  cases  before  their         conviction  could  be  treated as a part of  the  period  of         imprisonment  on conviction so as to entitle them to  remis-         sion of their sentences under the Prisons Act.  The  Prisons         Act,  as  its preamble shows., is an Act to "amend  the  law         relating  to prisons" and to  provide rules for the  regula-         tion  of   such   prisons Section 3(5) of  the  Act  defines         "remission system" as the "rules for the time being in force         regulating the award of marks to, and the consequent  short-         ening  of sentences of, prisoners in jail".  Section  59  of         the Prisons Act provides that the State Government may  make         rules  consistent  with the Act in respect  of  the  various         matters  specified  in clauses (1) to (28) of  the  section;         under  clause  (5)  of section 59 the  State  Government  is         authorised  to  make rules "for the award of marks  and  the         shortening of sentences".  In their writ petitions both  the         petitioners  speak  of remission under  the  "prison  rules"         without specifying any rule under which relief is sought.The         High Court viewed the question in this way:                               Sec.  428  Crl. P.C.  clearly  ordains                       that the  remand                       detention shall be set off against the term of                       imprisonment imposed on the accused person  on                       conviction.   The  section  further  clarifies                       that 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.  In other                       words,  the statute equates the  under   trial                       detention  or remand detention with  imprison-                       ment on conviction.  The provision, in so many                       words, treats the remand’ detention as part of                       the  period of imprisonment after  conviction.                       If  remissions  are  given  for   imprisonment                       after  conviction,  there is no  plausible  or                       understandable   reason.,  why  it  should  be                       denied to the remand period  when  the statute

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                     equates both of them."                       The  High Court accordingly held that all  the                       remissions  that are available or  permissible                       to the two petitioners in regard to  imprison-                       ment on conviction are available to them  oven                       in respect  of  the remand period and directed                       the authorities  "to  work  out  these  remis-                       sion and give the benefit to the petitioners".                           We  do not consider the view taken by  the                       High Court on this point as correct.   Section                       428 of the Code of Criminal Procedure. 1973 is                       in these terms:                           Period  of  detention  undergone  by   the                       accused to be set off against the sentence  of                       imprisonment.                             "428.  Where an accused person  has,  on                       conviction, been sentenced to imprisonment for                       a term, the period of deten-                       11                         tion,  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 imprison-                       ment  imposed on him on such  conviction,  and                       the  liability of such person to  undergo  im-                       prisonment  on  such conviction shall  be  re-                       stricted to the remainder, if any, of the term                       of imprisonment imposed on him."         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.   The         section only provides for a "set off", it does not equate an         "undertrial 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.  The basis of the         High Court’s decision does not, therefore, seem to be right.             Apart  from  that, the Prisons Act does not  confer  any         right upon the prisoner to claim remission.  It was  pointed         out  in  G.V. Godse v. State of Maharashtra(1)  that"   ....         the Prisons Act does not confer on any authority a power  to         commute or remit sentences, it provides only for the regula-         tion of prisons and for the treatment of prisoners  confined         therein.   Section 59 of the Prisons Act confers a power  on         the State Government to make rules, inter alia, for  rewards         for  good conduct.  Therefore, the rules made under the  Act         should  be  construed within the scope of the ambit  of  the         Act."  It was explained that the rules under the Prisons Act         do not  substitute  a lesser sentence for a sentence awarded         by  the court.  The rules enable a prisoner to  earn  remis-         sions  but,  as held in G.V. Godse’s case, the  question  of         remission  is exclusively within the province of the  appro-         priate  Government.  If the Government decides to remit  the         punishment to which a person has been sentenced, the  remis-         sion may be worked out according .to the rules framed  under         the  Prisons Act. This being the position, appeals  418  and         419 of 1976 must succeed.         The  remaining two appeals, 4.84 and 485 of 1976,  preferred         respectively by Rao and Krishnaiah, may now be taken up  for         consideration.  The claim in both these appeals is that  the         period  of detention undergone by each appellant  under  the         preventive detention law should be set off under section 428         of the Code Criminal Procedure against the term of imprison-         ment  imposed on them on their conviction in  the  aforesaid

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       sessions  cases.   The  argument  is  that  the  ’expression         "period  of  detention" in section  428  includes  detention         under  the  Preventive Detention Act or the  Maintenance  of         Internal Security Act.  It is true. that the 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  imprison-         ment         (1) [1961] 3 S.C.R. 440, 446.         12         imposed  on  the accused on conviction must  be  during  the         investigation, enquiry or trial in connection with the "same         ease"  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.             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 ease should be held         to have suffered imprisonment on conviction.  In A.V.  Rao’s         case  (W.P. 1865/76), he was already in detention under  the         2Preventive Detention Act when the First Information  Report         was  lodged  on  December 18, 1969 in  connection  with  the         sessions eases.  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  magis-         trate  sometime  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 deten-         tion 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 case of N.V. Krishnaiah, the Additional  Sessions         Judge, Hyderabad, issued a warrant on December 1, 1975 after         his  appeal  against conviction was dismissed  by  the  High         Court  on  November 28, 1975.  The  warrant,  however,  was.         served  on him only on December 30, 1975 on which  date  the         order  under  maintenance of  Internal  Security   Act   was         revoked.   It is claimed’ that the warrant could  have  been         served  immediately  on  that  dismissal  Of  the appeal  on         November 28, 1975 and the accused was not responsible if the         authority  concerned  chose  to  serve  the  warrant on  him         on  December 30, 1975.  In this case also, the  argument  on         behalf  of  the State of Andhra Pradesh is that it  was  not         possible  to  forward Krishnaiah to jail consequent  on  his         conviction  in  the session cases until the  period  of  his

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       detention under the Maintenance of Internal Security Act was         over.  We  do  not see why that should be  so.  Section  418         requires  the court passing the sentence .to forthwith  for-         ward  a  warrant  to the jail or other  place  in  which  he         (accused)  is, or is to be, confined, and, unless  the  ,ac-         cused is already confined in such jail or other         13         place,  shall forward him to such jail or other place,  with         the warrant". Section 418 thus does not exclude a case where         the warrant concerns an accused who is already in  detention         On  behalf of the State it was sought to be argued  that  if         the  warrant was served on Krishnaiah immediately after  his         conviction  was   upheld by the High Court  in  appeal,  the         position  would have been anomalous, because then  he  would         have  been in detention both under the preventive  detention         law and as a convicted accused in a criminal case.  We  have         not  been  referred to any provision either in the  Code  of         Criminal Procedure or in the Maintenance of Internal Securi-         ty  Act  which  requires the service of the  warrant  to  be         delayed  until after the period of preventive  detention  is         over.   As  regards the alleged anomaly of a man  having  to         suffer two kinds of detention at the same time, one  preven-         tive  and the other  punitive, we do not find this to  be  a         valid  objection.   The position is not different  from  the         case where a man is sentenced on different counts to a  term         of rigorous imprisonment and another term of simple  impris-         onment, and the sentences are directed to run  concurrently.         Counsel for the State referred us to the decision in  Harad-         han  Saha  and  another  v.  The  State  of  West  Bengal  &         others,(1)  in support of his  contention.  In  our  opinion         this  case does not help him at all.  What was held in  this         case was, inter alia that the nature of preventive detention         is entirely different from punitive detention, and there  is         no  bar to a man being detained under the preventive  deten-         tion  law  when a criminal  proceeding for the  offences  on         which the preventive detention is based is pending. If  that         be  so, there can be no bar to the  preventive and  punitive         detentions  continuing simultaneously.  We therefore   allow         appeal No. 485 of 1976 to the extent that Krishnaiah  should         be  taken to have serving the sentence imposed on  him  from         December 1, 1975.             In  the result the criminal appeals Nos. 418 and 419  of         1976  by  the State of Andhra Pradesh are allowed,  and  the         appeals  Nos. 484 and 485 of 1976 preferred respectively  by         A.V.  Rao  and  N.V. Krishnaiah are allowed  to  the  extent         indicated above.         M.R.                                           Appeals   al-         lowed.         (1) [1975] 1 S.C.R, 778.         14