IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL M.P. NO.13384 OF 2009

IN CRIMINAL APPEAL NO.164 OF 2004

Atul Manubhai Parekh              … Appellant  Vs.

Central Bureau of Investigation … Respondent

WITH  Criminal M.P. No.13382 of 2009 in Criminal Appeal  No.905 of 2005, Criminal M.P. No.13381 of 2009 in  Criminal Appeal No.925 of 2005 and Criminal M.P.  No.17357 of 2009 in Criminal Appeal No.90 of 2004

J U D G M E N T

ALTAMAS KABIR, J.

1. Crl. M.P. No.13384 of 2009 has been filed in  

Criminal Appeal No.164 of 2004, which was disposed  

of by this Court by judgment and order dated 7th  

August,  2009,  upholding  the  conviction  of  the

appellant under Section 120-B and sentencing him to  

undergo rigorous imprisonment for a period of 15  

days and to pay a fine of Rs.10,000/-, in default  

to undergo simple imprisonment for a further period  

of 15 days.  By the same order, the appellant was  

also granted the benefit of set-off for the period  

of detention he had already undergone under Section  

428  Cr.P.C.  This  application  has  been  filed  on  

behalf of the appellant, Atul Manubhai Parekh, for  

a direction that he be entitled to set-off of 30  

days in the present case against the detention of  

15 days already undergone by him.   

2. 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.

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3. Ms. Kamini Jaiswal, learned Advocate appearing  

for the appellant, submitted that the right of a  

convict  to  be  allowed  set-off  in  one  case  in  

respect of detention or imprisonment undergone by  

him in other cases, fell for the consideration of  

this  Court  in  State  of  Maharashtra  &  Anr. vs.  

Najakat  Alia  Mubarak  Ali [(2001)  6  SCC  311],  

wherein three Judges of this Court had occasion to  

consider the provisions of Section 428 Cr.P.C., and  

it  was  the  majority  view  that  the  period  of  

imprisonment  undergone  by  an  accused  as  an  

undertrial during investigation, enquiry or trial  

of a particular case, irrespective of whether it  

was  in  connection  with  that  very  case  or  other  

cases,  could  be  set-off  against  the  sentence  of  

imprisonment  imposed  on  conviction  in  that  

particular  case.   Their  Lordships  held  that  the  

words  “same  case”  used  in  Section  428  do  not  

suggest that set-off would be available only if the  

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period undergone as an undertrial prisoner is in  

connection with the same case in which he was later  

convicted and sentenced to a term of imprisonment.  

According to Their Lordships, the said expression  

merely denoted the pre-sentence period of detention  

undergone by an accused and nothing more.

4. Ms. Jaiswal also referred to the Three-Judge  

Bench decision of this Court in State of Punjab vs.  

Madan  Lal [(2009)  5  SCC  238],  where  also  the  

provisions  of  Section  428  of  the  Code  fell  for  

consideration and the decision in  Najakat Alia’s  

case was noticed with approval.  While deciding the  

matter, the Hon’ble Judges had occasion to consider  

the objects and 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 in many cases the accused person is made to  

suffer jail life for a period out of all proportion  

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to  the  gravity  of  the  offence  or  even  to  the  

punishment  provided  in  the  statute.   Their  

Lordships emphasized that 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.   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.

5. Ms. Jaiswal, therefore, submitted that in the  

light of the aforesaid decisions the petitioner was  

entitled to set off of all periods of detention  

unconnected  with  the  case  in  which  he  has  been  

convicted and sentenced.  It was urged that the  

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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.  

6. 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 vs.  State  of  Maharashtra  

[(1982) 1 SCC 507], 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 Cr.P.C.  

It  was  further  contended  that  the  question  of  

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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  

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investigation, enquiry 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.  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.  It was submitted  

that the subsequent judgments of the Three-Judge  

Benches  of  this  Court  reveals  that  there  were  

misgivings regarding the law sought to be explained  

in the said cases.  It was submitted that the High  

Court did not commit any error in sentencing the  

appellant to undergo rigorous imprisonment for a  

period of 15 days under Section 120-B of the Indian  

Penal Code and to also pay a fine of Rs.10,000/-  

and in default  to undergo simple imprisonment for  

a further period of 15 days.  

7. We  have  carefully  considered  the  submissions  

made  on  behalf  of  both  the  parties,  having  

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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.   At  this  juncture,  it  may  be  

relevant to reproduce the provision of Section 428  

Cr.P.C. :

“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.

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Provided  that  in  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.”

8. 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  

Cr.P.C.  in  respect  of  the  conviction  in  another  

case, in the other set of cases it has been held  

that it cannot.  However, even in  Najakat Alia’s  

case,  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  

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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] and in the case of  Champalal Punjaji Shah’s  

case (supra).

9. 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.

10. Let  us  test  the  proposition  by  a  concrete  

example. A habitual offender may be convicted and  

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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  reference  made  in  the  

several decisions cited before us to Section 427  

Cr.P.C. 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  Cr.P.C.  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  

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or trial of such case.  The philosophy of Section  

428 Cr.P.C. has been very aptly commented  upon by  

this  Court  in  Government  of  A.P.  vs.  Anne  

Venkateswara Rao (1977) 3 SCC 298, in the following  

terms :

“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.”

11. In fact, a similar situation arose in the case  

of  Maliyakkal  Abdul  Azeez vs.  Asstt.  Collector,  

Kerala & Anr.  [(2003) 2 SCC 439], 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  Cr.P.C.  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 Cr.P.C.  

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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  Cr.P.C.  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.  

12. The decision in the case of  Maliyakkal Abdul  

Azeez  (supra) was rendered after the decision in  

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Najakat Alia’s case (supra)  and we respectfully  

follow the same as it reiterates the law laid down  

in the earlier cases such as in the case of Anne  

Venkateswara  Rao  (supra),  Raghubir  Singh  (supra)  

and Champalal Punjaji Shah (supra).

13. The facts on which the decision  was rendered  

in  Najakat  Alia  Mubarak  Ali’s  case  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 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.

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14. The application filed by Atul Manubhai Parekh,  

being Criminal Misc. Petition No.13384 of 2009, in  

the disposed of Criminal Appeal No.164 of 2004, and  

the  connected  applications  being  Criminal  Misc.  

Petition No.13382 of 2009 in Criminal Appeal No.905  

of 2005, Criminal Misc. Petition No.13381 of 2009  

in  Criminal  Appeal  No.925  of  2005  and  Criminal  

Misc. Petition No.17357 of 2009 in Criminal Appeal  

No.90 of 2004, are, accordingly, dismissed.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (CYRIAC JOSEPH)

New Delhi Dated: 24.11.2009.

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