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PETITIONER: RAGHBIR SINGH

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT13/09/1984

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1984 AIR 1796            1985 SCR  (1) 724  1984 SCC  (4) 348        1984 SCALE  (2)365

ACT:      Code of  Criminal Procedure  e 1973  (Act II  of  1974) Section  428   read  with   Punjab  &   Haryana  High  Court Instruction No.  29442 Rules  VI. V. 38 dt 19.11. 1945 Scope of-Set off  against the  term of  imprisonment of  period of detention undergone  by an  accused, explained-Whether it is open to  a person  who is  undergoing imprisonment  on being convicted of  an offence  committed by him to claim that the period occupied  by the  investigation or inquiry carried on and the  trial held  while he was undergoing imprisonment in respect of another offence alleged to have been committed by him should  be set  off against  the  term  of  imprisonment imposed on him on being convicted of the latter offence.

HEADNOTE:      The petitioner  was  convicted  for  an  offence  under Section 307  and Section  459 of  the Indian  Penal Code and sentenced  on  February  1,  1980  to  a  term  of  rigorous imprisonment.  During   the  pendency   of  the   trial  the petitioner was  in judicial custody with effect from January 11, 1980  in  another  case  F.I.R.  315/78  under  Sections 457/380/411 of the Indian Penal Code which also ended in his conviction on February 16, 1981 and was sentenced for a term of rigorous  imprisonment. In the latter case it was ordered that the  petitioner was entitled to the set off as provided by Section  428 of  the Code. The petitioner claimed that in spite of his conviction in the earlier case from February 1, 1980 he  was entitled for set off from 11.1.1980 to 16.2.81. The question  in the present Writ Petition is whether such a claim is in order.      Dismissing the Writ Petition, the Court ^      HELD: 1.  The petitioner  is not entitled to claim that the period  between February  1, 1980  on which  date he was convicted in  the Sessions  Case and  February 16,  1981  on which date  he was convicted by the Metropolitan Magistrate, Delhi in  another case  when he  was undergoing imprisonment imposed on  him in  the Sessions  Case  should  be  set  off against the term of imprisonment imposed by the Metropolitan Magistrate, Delhi.  That period should be counted as part of the imprisonment  undergone by the petitioner as directed in the Sessions Case. [728G-H]

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    2: 1.  Section 428  of the  Code of  Criminal Procedure 1973  was  introduced  with  the  object  of  remedying  the unsatisfactory state of affairs that was prevail- 725 ing when  the former  Code of 1898 was in force. It was then found that many persons were being detained in prison at the pre-conviction stage for unduly long periods, many times for periods longer than the actual sentence of imprisonment that could be imposed on them on conviction. [727F-G]      2: 2.  In order to secure the benefit of Section 428 of the Code, the prisoner should show that he had been detained in prison  for the purpose of investigation inquiry or trial of the case in which he is later on convicted and sentenced. It follows  that if  a person  is undergoing the sentence of imprisonment imposed by a court of law on being convicted of an offence  in one  case during the period of investigation, inquiry or  trial of  some other  case, he cannot claim that the period  occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in  the latter case even though he had been detained during such  period. In  such a case the period of detention is really  a part  of the period of imprisonment which he is undergoing  having   been  sentenced   earlier  for  another offence. It  is not the period of detention undergone by him during the  investigation, inquiry or trial of the same case in which  he is  later on convicted and sentenced to undergo imprisonment. He cannot claim a double benefit under Section 428 of  the Code  that is  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. The  instruction issued  by the High Court of Punjab & Haryana No.  29442 Rules VI. V. 38 dated 29th November, 1975 is unexceptionable. [727G-H]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 941 of 1984.           (Under article 32 of the Constitution of India)      S.L. Chibber for the Petitioner.      Ashwani Kumar and R.N. Poddar for the Respondent.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  The short  question which arises for decision  in   this  petition   under  Article   32  of  the Constitution is  whether it  is open  to  a  person  who  is undergoing imprisonment  on being  convicted of  an  offence committed by  him to  claim that  the period occupied by the investigation or inquiry carried on and the trial held while he was undergoing imprisonment in respect of another offence alleged to  have been  committed by  him should  be set  off against the  term of  imprisonment imposed  on him  on being convicted of  the latter  offence, under  section 428 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ’the Code’). 726      The facts  relevant for  the purpose  of this  case are these: The petitioner was convicted of an offence punishable under section  307 of the Indian Penal Code and sentenced to undergo rigorous  imprisonment for  seven years and to pay a fine of  Rs. 100/- in a Sessions Case on February 1, 1980 by the Addl.  Sessions Judge,  Karnal. In the same case, he was also convicted of an offence punishable under section 459 of the Indian  Penal Code  and sentenced  to  undergo  rigorous

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imprisonment for  five years and to pay a fine of Rs. 100/-. Both the  sentences of  imprisonment were  directed  to  run concurrently. The  petitioner was  in judicial  custody with effect from  January 11,  1980 in  another case  F.I.R.  No. 315/78 under  sections 457/380/411  of the Indian Penal Code before a  Metropolitan Magistrate  at Delhi. That case ended in his  conviction on  February  16,  1981  for  an  offence punishable under section 457 of the Indian Penal Code and he was sentenced  to undergo  imprisonment for  one year and to pay a  fine of  Rs. 200/-. In the same case he was convicted of an  offence punishable  under section  380 of  the Indian Penal Code  and sentenced  to undergo  rigorous imprisonment for four  months and  to pay  fine.  The  two  sentences  of imprisonment imposed  in this  case  were  directed  to  run concurrently. In  this case  it was further ordered that the petitioner was  entitled to  the  set  off  as  provided  by section 428 of the Code. It is not necessary to refer to the other case  or cases  in which he has also been convicted in order to decide the issue involved in this case.      The petitioner  is undergoing rigorous imprisonment for seven years  as directed by the Addl. Sessions Judge, Karnal in the  Sessions case  from February 1, 1980 at the District Jail at Rohtak. The sentences of imprisonment imposed by the Metropolitan Magistrate,  Delhi will  commence to run at the expiration of the imprisonment imposed by the Addl. Sessions Judge, Karnal as prescribed by section 427 of the Code since the court  has not  directed that  the  subsequent  sentence shall run  concurrently  with  the  previous  sentence.  The petitioner, however,  contends that since he was in judicial custody  from  January  11,  1980  in  connection  with  the investigation and  trial of  the case  which  ended  in  his conviction by  the Metropolitan  Magistrate on  February 16, 1981, the  whole of  the period between January 11, 1980 and February 16,  1981 should be set off against the sentence of imprisonment imposed  by the Metropolitan Magistrate, Delhi. This claim  of the  petitioner is  contested  by  the  State Government of  Haryana. It  is urged  on behalf of the State Government that while the petitioner is entitled 727 to set off under section 428 of the Code, the period between January 11,  1980 and  February 1, 1980 on which date he was sentenced to  imprisonment for  seven  years  by  the  Addl. Sessions Judge,  Karnal against the sentence of imprisonment imposed by  the Metropolitan  Magistrate, Delhi,  the period between February 1, 1980 and February 16, 1981 on which date the petitioner was convicted by the Metropolitan Magistrate, Delhi cannot  be  set  off  since  during  that  period  the petitioner was  actually undergoing  imprisonment imposed on him in the Sessions case. The State Government has relied in support of  its contention  on the instruction issued by the High Court  of Punjab and Haryana in No. 29442 Rules VI.V.38 dated November  29, 1975,  the relevant  part of which reads thus:      "The period  of detention  undergone by  a  convict  in      execution of sentence of imprisonment imposed on him by      a court  of law  while facing  inquiry or trial in some      other case(s) should not be set off against the term of      imprisonment imposed on him on conviction in such other      case(s)."      We  are   concerned  in   the  present  case  with  the correctness of the above instruction.      Section 428 of the Code 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

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    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."      There was  no provision corresponding to section 428 of the Code  in the  Code of Criminal Procedure, 1898 which was repealed and replaced by the present Code. It was introduced with the  object of  remedying the  unsatisfactory state  of affairs that  was prevailing  when the  former Code  was  in force. It  was then  found  that  many  persons  were  being detained in  prison at  the pre-conviction  stage for unduly long periods,  many times for periods longer than the actual sentence 728 of imprisonment that could be imposed on them on conviction. In order  to remedy  the above situation, section 428 of the Code was  enacted. It  provides for  the setting  off of the period of  detention as  an under trial prisoner against the sentence of  imprisonment imposed  on him. Hence in order to secure the  benefit of section 428 of the Code, the prisoner should show  that he  had been  detained in  prison for  the purpose of  investigation, inquiry  or trial  of the case in which he  is later  on convicted  and sentenced.  It follows that if  a person is undergoing the sentence of imprisonment imposed by  a court  of law on being convicted of an offence in one  case during  the period of investigation, inquiry or trial of  some other  case, he  cannot claim that the period occupied by  such investigation,  inquiry or trial should be set off  against the  sentence of imprisonment to be imposed in the latter case even though he was under detention during such period.  In such  a case  the period  of  detention  is really a  part of  the period  of imprisonment  which he  is undergoing  having   been  sentenced   earlier  for  another offence. It  is not the period of detention undergone by him during the  investigation, inquiry or trial of the same case in which  he is  later on convicted and sentenced to undergo imprisonment. He cannot claim a double benefit under section 428 of  the Code  i.e. the same period being counted as part of the  period of  imprisonment imposed  for committing  the former offence  and also being set off against the period of imprisonment imposed  for committing  the latter  offence as well. The  instruction issued  by the  High  Court  in  this regard is unexceptionable. The stand of the State Government has, therefore, to be upheld.      The petitioner  is not,  therefore, entitled  to  claim that the  period between  February 1,  1980 on which date he was convicted  in the Sessions case and February 16, 1981 on which date  he was convicted by the Metropolitan Magistrate, Delhi when  he was undergoing imprisonment imposed on him in the Sessions  case should  be set  off against  the term  of imprisonment imposed  by the Metropolitan Magistrate, Delhi. That period  should be  counted as  part of the imprisonment undergone by  the petitioner  as directed  in  the  Sessions case.      No other contention is urged.      In the result the petition is dismissed. S.R. Petition dismissed. 729

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