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CASE NO.: Appeal (crl.) 617  of  2001

PETITIONER: STATE OF MAHARASHTRA AND ANR.

       Vs.

RESPONDENT: NAJAKAT ALIA MUBARAK ALI

DATE OF JUDGMENT:       09/05/2001

BENCH: K.T. Thomas

JUDGMENT:

THOMAS, J.

       Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   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 under-trial 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 the Code of Criminal  Procedure (for  short the Code) in both 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.

   A two Judge Bench of this Court has made observations in Raghbir  Singh vs.  State of Haryana {1984(4) SCC 348}  that on  the  fact situation in the said case the accused  cannot claim a double benefit.  In other words, learned Judges held that  the accused can have the benefit of set off in one  of those  cases  but not in both.  When the said  decision  was cited  before  the High Court, the learned Single Judge  who rendered  the impugned judgment has stated that on the facts in  the case of Raghbir Singh (supra) the question in  issue involved here never arose.  Learned Judge expressed the view that  the accused is entitled to the benefit of set off  in the  second case as well where he was in custody during  the course  of  the trial.  When the special leave petition  in this  case  came up for consideration on 20.1.2000, we  felt that since Raghbir Singh was decided by a two Judge Bench it would  be appropriate that this matter is heard by a  larger Bench so that a fresh look can be made on Section 428 of the Code.

   As  the accused respondent was benefited by the decision of  the  High Court he would have been released  from  jail. That  might be the reason why he did not enter appearance in this  appeal despite notice served on him.  So we  appointed Ms.    Aparna  Bhatt,  Advocate,  as  amicus  curiae.    She

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presented  the  case for the accused very effectively  after looking  up all the decisions pertaining to the subject.  We are  indeed  immensely  grateful to her and  we  record  our appreciation for the help rendered by her.

   The  facts  out  of  which the  aforesaid  question  has winched  to the fore can be stated briefly thus:  Respondent accused was tried in two cases.  One was numbered S.C.230 of 1995  and the other as S.C.313 of 1996.  He was arrested  on 21.9.1995 in connection with both cases.  The Sessions Judge who  convicted  him in S.C.  230 of 1995 on 3.4.1998,  while sentencing  him, directed that the accused would be entitled to the set off under Section 428 of the Code.

   Subsequently  a Sessions Court (we are not sure  whether the same Sessions Court or a different one) convicted him in S.C.323  of  1998 on 23.7.1998 and sentenced him to  certain terms  of  imprisonment.   The   Sessions  Judge   concerned observed therein that the accused is entitled to the set off under Section 428 of the Code.

   On  14.9.1998 the respondent accused sent an  intimation to  the jail authorities that he is entitled to be  released from  jail since he has already served the sentences imposed on  him in both cases.  But the jail authorities refused  to release  him  on  the premise that he could  not  claim  the benefit  of set off in the second case as he had been given set  off in the first case.  The jail authorities did so on the  strength of a Resolution dated 7.9.1974 adopted by  the Government of Maharashtra.  That resolution reads thus:

   If  a  prisoner  is convicted in different  cases,  and different set off period is granted by different courts then in that case maximum period of set off in one case should be granted to prisoners, as other set off period will be merged in the set off which is the maximum.

   When  the  prisoner challenged the decision of the  jail authorities  before  the  High Court  learned  Single  Judge observed  that the construction placed by the authorities on the  said  Government Resolution is completely contrary  to the interpretation of Section 428 of the Code and the spirit of  the section itself. Learned Single Judge after ordering the  prisoner  to be released forthwith from jail,  directed the Government and the jail authorities to review the cases of  all  persons who continue to be in custody based on  the Government  Resolution  dated 7th September, 1994  within  a period  of two months and to take steps to see that they are released  within  the  said  period of two  months  (if  not earlier released) based on the interpretation to Section 428 as now given.

   The  respondent  prisoner  was   released  by  the  jail authorities before the Government of Maharashtra took up the matter  to  this Court.  The State felt that the High  Court has  gone wrong in giving the benefit of Section 428 of  the Code to the prisoner in two cases.

   In  Raghbir Singh vs.  State of Haryana (supra)  learned Judges  considered a case in which an accused was  convicted and sentenced to imprisonment for 7 years on 1.2.1980 as per the  judgment  rendered by a Sessions Judge,  Karnal.   That accused was in judicial custody from 11.1.1980 in connection with  another  case which was pending before a  Metropolitan

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Magistrate,   Delhi.   That  second   case  also  ended   in conviction  and the Metropolitan Magistrate sentenced him to rigorous  imprisonment  for  one year  on  16.2.1981.   That accused  claimed  set off from 11.1.1980 till the  dates  of conviction  in each cases.  In that case the State  conceded the  claim  of the accused in respect of the period  between 11.1.1980  to  1.2.1980.  But the State contended  that  the accused  could not get set off from 1.2.1980 till  16.2.1981 for  the  second case.  The said contention was based  on  a departmental  instructions  issued by a State Government  on 29.11.1975  to  the  effect  that the  period  of  detention undergone  by  a convict in execution of a sentence  in  one case  should not be set off against the term of imprisonment imposed  on him in another case.  This Court upheld the said contention  and  the  two  Judge Bench  made  the  following observation:

   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.

   As  the  said view is now sought to be  reconsidered  we shall  examine  the position by reading Section 428  of  the Code once again.  The Section is extracted below:

   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.

   The  placement of that section just below Section 427 of the  Code  tempts  us  to have a  peep  into  the  preceding section,  which  deals with instances wherein one person  is sentenced  in a case when he has already been undergoing the sentence  in another case.  The first sub-section of Section 427  says  that the sentence in the second conviction  shall commence  at the expiration of the imprisonment to which the accused  has  been previously sentenced, unless  the  court directs  that the subsequent sentence shall run concurrently with  such  previous  sentence. The second  sub-section  to Section  427  of  the Code says that when a  person  already undergoing  a sentence of imprisonment for life is sentenced on  a  subsequent conviction to imprisonment for a  term  or imprisonment  for  life, the subsequent sentence  shall  run concurrently with such previous sentence.

   Thus,  the sentence of life imprisonment imposed on  the same person in two different convictions would converge into

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one  and thereafter it would flow through one stream  alone. Even  if  the  sentence  in one of those two  cases  is  not imprisonment  life  but only a lessor term  the  convergence will  take  place  and the post convergence  flow  would  be through the same channel.  In all other cases, it is left to the  court to decide whether the sentences in two  different convictions  should  merge  into one period or not.   If  no order is passed by the court the two sentences would run one after  the  other.   No  doubt Section 427  is  intended  to provide   amelioration   to  the    prisoner.    When   such amelioration is a statutory operation in cases falling under the  second  sub-section  it is a matter of choice  for  the court  when  the  cases fall within the  first  sub-section. Nonetheless,  the  entire  section  is  aimed  at  providing amelioration  to  a  prisoner.   Thus   a  penumbra  of  the succeeding  section  can  be  glimpsed  through  the  former provision.

   The  purpose  of  Section 428 of the Code  is  also  for advancing  amelioration  to the prisoner.  We may point  out that the section does not contain any indication that if the prisoner  was in jail as an under-trial prisoner in a second case the benefit envisaged in the section would be denied to him in respect of the second case.  However, learned counsel for  the  appellant  contended that the words of  the  same case in the section would afford sufficient indication that the  benefit is intended to cover only for one case and  not more  than  that.  It must be remembered that  the  ideology enshrined  in Section 428 was introduced for the first  time only  in  the  Code  of   Criminal  Procedure,  1973.    For understanding  the  contours  of   the  legislative  measure involved  in that section, it is advantageous to have a look at   the  Objects  and  Reasons   for  bringing  the   above legislative provision.  We therefore extract the same here:

   The  Committee  has noted the distressing fact that  in many  cases accused persons are kept in prison for very long period  as  under-trial  prisoners  and in  some  cases  the sentence of imprisonment ultimately awarded is a fraction of the  period spent in jail as under-trial 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 under-trial 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 noted that a  large number of persons in the overcrowded jails of today are  under-trial 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 under-trial 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.

                   (emphasis supplied)

   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 under-trial prisoner.   In other words, the period of his being in  jail as  an under-trial prisoner would be added as a part of  the

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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, inquiry 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.

   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,  inquiry 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 amplifies 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, inquiry 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.

   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 count as well.

   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.

   Various  High Courts have expressed on this question.  A Division  Bench  of  Delhi High Court has dissented  from  a contrary view taken by a Single Judge of that High Court and held  in K.C.  Das vs.  The State (1979 Criminal Law Journal 362)  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 vs.  State of Mizoram  and  ors. (1982  Criminal Law Journal 1793) has adopted the same view. Lahiri  and Hansaria, JJ, said in the said decision that if the  accused is simultaneously arrested and detained in  two or  more  cases  and on conviction obtains set off  for  the

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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.

   A  Division  Bench of the Andhra Pradesh High  Court  in Gedala  Ramulu  Naidu  vs.  State of A.P.  and  anr.   (1982 Criminal  Law  Journal  2186) and a Division  Bench  of  the Madras High Court in Chinnasamy vs.  State of Tamil Nadu and ors.   (1984 Criminal Law Journal 447) have also adopted the same  view  in  tune with the interpretation  given  by  us. While  speaking  for the Division Bench of the  Madras  High 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.

   We  have  no  reason  to  think  that  the  High  Courts mentioned  above  have  gone wrong in taking the  view  that Section  428  of  the Code permits the accused to  have  the period  undergone by him in jail as an under-trial  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 vs.   State  of Haryana (supra).

   In the result we dismiss this appeal.