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CASE NO.: Appeal (crl.) 617  of  2001

PETITIONER: STATE OF MAHARASHTRA & ANR.

       Vs.

RESPONDENT: NAJAKAT ALIA MUBARAK ALI

DATE OF JUDGMENT:       09/05/2001

BENCH: R.P. Sethi

JUDGMENT:

SETHI,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Despite  perusing the lucid judgment of Thomas, J.  from different angles and being aware of its far reaching effects in  the  country,  so far as the under trial  prisoners  are concerned,  I  could not persuade myself to agree  with  the interpretation given regarding the scope and implications of Section  428 of the Code of Criminal Procedure, (hereinafter referred to as ’the Code’).

   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  appointed  for that purpose.  The  Committee  had noted,  with  distress, that in many cases  accused  persons were  kept  in  prison for very long period  as  under-trial prisoners  and  in some cases the sentence of  imprisonment, ultimately  awarded,  was a fraction of the period spent  in jail  as  under-trial  prisoners.   Despite  the  fact  that sometimes  courts had been taking into account the period of detention  undergone as under-trial prisoners while  passing sentence  and  occasionally  the  sentence  of  imprisonment restricted  to  the period already undergone.  But that  was not  always  the case as in many cases the  accused  persons were made to suffer jail life for a period out of proportion to  the  gravity of offence or even the punishment  provided under  the statute.  The Committee noted with concern that a large  number  of persons in the over-crowded jails  of  the country  were under-trial prisoners.  The Section was sought to  remedy  the  said  unsatisfactory state  of  affairs  by providing  for  setting  off the period of detention  as  an under-trial  prisoners against the sentence of  imprisonment imposed  on  the  accused.   The  purpose  of  incorporating Section  428  was that period of detention undergone by  the accused   be  given  set  off   against  the   sentence   of imprisonment  imposed upon him in the same case.  Before the incorporation  of  the aforesaid section, the accused,  upon conviction,   had  to  undergo   the  awarded  sentence   of imprisonment  notwithstanding the length of period spent  by him  in detention during investigation, inquiry or trial  of

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the  case.   Section 428 of the Code is preceded by  Section 427  which provides that when any person already  undergoing sentence  of  imprisonment  is  sentenced  on  a  subsequent conviction of imprisonment, such imprisonment shall commence at  the expiration of the commencement to which he has  been previously  sentenced,  unless  the court directs  that  the subsequent  sentence  shall  run   concurrently  with   such previous  sentence.   (underlining supplied) Section 427  of the  Code  thus  authorises  a court of law  to  direct  the sentence  awarded  by  it  to  run  concurrently,  obviously keeping  in  view the facts and circumstances pertaining  to the   case   or   the   accused.   His   detention   pending investigation,  inquiry and trial in that case or some other cases  being  relevant  consideration  while  directing  the sentences  to  run consecutively or concurrently.   A  plain reading  of Section 428 of the Code makes it clear that  the period  of detention which the section permits to be set off against  the  term of imprisonment, imposed on  the  accused upon  conviction, must be during the investigation,  inquiry or  trial  in connection with the same case in which he  has been  convicted.   Dealing with the nature of detention  for the  purposes of the section, this Court in Govt.  of Andhra Pradesh  & Anr.  v.  Anne Venkateswara Rao, etc.  [AIR  1977 SC  1096  = (1977) 3 SCC 298] held:  "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."

   In  Champalal Poonjaji Shah v.  State of Maharashtra[AIR 1982  SC  791], where the petitioner was shown to have  been detained  firstly  under  the provisions of MISA  and  later under  the provisions of COFEPOSA and after he was convicted by a Magistrate and his conviction was set aside by the High Court, the State filed an appeal by special leave, which was allowed  by  this Court on August 12, 1981 (reported in  AIR 1981  SC  1675) by setting aside the Judgment  of  acquittal passed  by  the High Court and restoring that of  the  trial magistrate  convicting the accused under different heads  of charges  and  sentencing  him  to  suffer  imprisonment  for various  terms ranging from two years to four years.   Later in  the review petition filed, it was submitted on behalf of the accused that the total of the three periods of detention should be set off against the imprisonment imposed upon him. Rejecting the contention, the Court held:

   "We  are  unable  to agree with the submission  of  Shri Jethmalani.   In the very case cited by the learned counsel, the  Court  negatived  the contention  that  the  expression ’period  of detention’ in Sec.428 Code of Criminal Procedure included the detention under the Prevention Detention Act or the  Maintenance of Internal Security Act.  It was  observed (para 7):

   "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

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makes  it clear that the period of detention which it allows to  be  set off against the term of imprisonment imposed  on the  accused on conviction must be during the investigation, enquiry or trial in connection with the ’same case’ 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  S.428 against the term of imprisonment imposed on them"

   After   holding  that  the   period  during  which   the petitioners  therein were in preventive detention could  not be  ’set  off’ under Section 428 Code of Criminal  Procedure against  the term of imprisonment imposed on them, the Court went  on  to  consider whether the period during  which  the petitioners  were  in  preventive detention  could  for  any reason  be considered as period during which the petitioners were  in  detention  as under-trial prisoners  or  prisoners serving  out  a  sentence  on conviction.  In  the  case  of prisoner  A.V.   Rao,  the  Court   held  that  the   period commencing  from  the date when he would have normally  been arrested pursuant to the First Information Report registered against  him should be reckoned as period of detention as an under-trial  prisoner.   In  the case  of  another  prisoner Krishnaiah  it was held that the period during which he  was in  preventive  detention subsequent to the  conviction  and sentence  imposed  upon him should be treated  as  detention pursuant  to conviction and sentence.  The case before us is altogether  different.  The petitioner had been acquitted by the  High  Court before any of the orders of detention  were made against him.  There can be no question of the detention being  considered as detention pursuant to conviction;   nor can  the detention be treated as that of an undertrial.   It is  only  in  circumstances where the  prisoner  would  have unquestionably  been  in  detention  in  connection  with  a criminal  case if he had not been preventively detained, his preventive  detention  might be reckoned as detention as  an undertrial prisoner or detention pursuant to conviction, for the purposes of S.428 Criminal P.C."

   A  perusal  of the section unambiguously indicates  that only  such accused is entitled to its benefit of that period of   detention   which   he   has   undergone   during   the investigation,  enquiry or trial of the same case.  It  does not  contemplate of the benefit of set-off of the period  of detention  during  investigation,  inquiry or trial  in  any other  case.   The  purpose and object of  the  section,  as pointed  out  by  Brother Thomas,J., is aimed  at  providing amelioration  to  a prisoner in a case where he has been  in detention  for no fault of his.  The section, however,  does not intend to give any benefit or bonus to an accused guilty of  commission of more than one crime by treating the period of  detention during investigation, inquiry and trial in one case as that period in the other cases also for the purposes of  set-off  in the sentence.  Such an entitlement  requires the  judicial  determination which can be adjudicated  by  a court  awarding the sentence in exercise of its powers under Section 427 of the Code.  The words "period of detention, if any,  undergone by him during the investigation, inquiry  or trial  of  the  same  case" are important  to  indicate  the paramount  concern  and  intention  of  the  legislature  to protect  the  interests of under-trial prisoners  by  giving them  the  set-off  of that period in "that  case",  at  the conclusion  of  the trial.  The Section makes it clear  that the  period  of  detention  which it allows to  be  set  off

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against  the term of imprisonment imposed on the accused, on conviction,  must  be during the investigation,  inquiry  or trial  in connection with the same case in which he has been convicted.

   By introducing the provision of set off, the legislature intended to mitigate, to a great extent, the hardship caused to  the  accused persons by reason of their being unable  to come   out  on  bail  during   the  trial   period.    While interpreting  Section 428 of the Code, the underlying object of the Section cannot be lost sight of.  Any set off claimed under  Section 428 has necessarily to be within the terms of the  Section and not beyond it.  No accused person can claim that  irrespective of the terms of Section 428 of the  Code, he  is entitled to the benefit of set-off in each and  every case.   A  bare  reading of the Section  indicates  that  an accused  person  who  has been convicted  and  sentenced  to imprisonment  for a term is entitled to claim set off of the period   of   detention   undergone  by   him   during   the investigation, inquiry or trial of the same case against the term of imprisonment imposed on him on such conviction.  The section has imposed some restrictions for a convicted person claiming the benefit of set off which are as under:-

   (i) The imprisonment should be for a term.

   (ii)  The  imprisonment  should not be  one  awarded  in default of payment of fine.

   (iii)  The period of detention undergone by the  accused person  during  the investigation, inquiry or  trial  should relate  to  the  same  case in which  he  is  convicted  and sentenced to undergo imprisonment for a term.

   The  dictionary meaning of the word "same" is identical; referring  to  a person or thing just mentioned;   the  same thing  as previously mentioned.  It generally refers to  the last   preceding  antecedents;   one   and  the  same;   not distinct.   Generally  speaking the "same case"  would  thus mean  "same  transaction"  for which the  accused  has  been tried.   Two different criminal cases, therefore, cannot  be treated  to be the "the same case" in relation to an accused for the purposes of determining the applicability of Section 428 of the Code.

   The  accused tried for various offences in one trial can be  held to be entitled to the benefit of Section 428 of the Code being tried for the "same case".  The words "same case" appearing  in  the  section  are   ejusdem  generis  to  the preceding  words "investigation, enquiry or trial".  If  the period  of  detention relating to investigation, enquiry  or trial  is  in  a different case that would  not  ipso  facto entitle  the accused to claim the benefit of Section 428 but that  may  permit  him  to persuade the  court  to  pass  an appropriate  orders in terms of Section 427, keeping in view the  period  of his under-trial detention in other cases  as well.   It is the need of the time that the court convicting the  accused should develop a healthy practice of specifying in  the order the total period of pre-conviction  detentions that he has undergone in that case or in some other case for the purposes of awarding the sentence upon conviction.

   In  Shabbu  &  Anr.  v.  State of U.P.   &  Anr.   [1982 Crl.L.J.   1757]  a Full Bench of the Allahabad  High  Court

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held:

   "It  is  thus  obvious  that  Section  428  Cr.P.C.,  is intended  to  relieve the anguish of undertrials  for  their prolonged  detention  in  jail   during  the  investigation, inquiry  or  trial  of a case.  Its object is  to  confer  a special  benefit  upon  a convict whereby his  liability  to undergo  the imprisonment, ultimately imposed upon him in  a case,  stands  reduced  by the period during  which  he  has remained  in  jail  as an under-trial prisoner in  the  same case.  It simply aims at setting off or crediting the period of  pre-  conviction  detention  of the accused  of  a  case towards  the  sentence ultimately awarded to him  after  his conviction in that very case."

   After  referring  to  the  judgments of  this  Court  in Mr.Boucher  Pierre  Andre  v.  Superintendent  Central  Jail Tihar,  [AIR  1975 SC 164], Suraj Bhan v.  Om  Prakash  [air 1976  sc  648],  Govt.  of A.P.  v.  A.V.Rao  [AIR  1977  SC 1096], the earlier judgment of that Court in Nasim v.  State of  U.P.  [1978 All LJ 1284], the judgment of the Delhi High Court  in  K.C.  Das v.  State[1979 Crl.LJ 362],  of  Bombay High  Court  in Jaswant Lal Harjivan Das Dholkia  v.   State [1979  Cri.LJ 971], Mohan Lal v.  State of U.P.  [1979  Luck LJ  272], the Full Bench further held that under Section 428 the period of detention as an under-trial of an accused in a particular  case  can be set off only towards  the  sentence ultimately  awarded  to  him in that very case.   The  Court further held:

   "Whether  or  not the detention of a person in one  case should  also be treated to be his detention for the purposes of any other case, wherein he is wanted, is a question to be decided  upon the facts and circumstances of each case.   No set formula can be laid down in that behalf."

   Dealing  with  the scope and object of Section 428  this Court  in  Raghbir Singh v.  State of Haryana [1984 (4)  SCC 348] held:  "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  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

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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."

   After  going  through  the scheme of the  Code  and  the object  for  which  Section  428 was  incorporated,  I  have reached  the conclusion that the law laid down by this Court in  Raghubir Singh’s case(supra) does not require any review or a new interpretation.  Taking any other view would amount to  legislating  and  amending  the plain  meanings  of  the section.   Giving  a  contrary interpretation may,  in  some cases,  be against the public policy.  Any person accused of a heinous crime, in that even, be at liberty to commit minor offences  and  being under trial prisoner in the main  case, eventually may not get any imprisonment of law for the minor offences  committed  by  him.  It cannot be  the  object  of civilised criminal jurisprudence to encourage the repetition of  crime  by  adoption of an approach of  liberality.   The commercial  approach  of sale of commodities  providing  for purchasing of one expensive item and getting three free with it,  cannot  be imported into criminal justice system.   The views  of  Guwahati High Court in Lalrinfela Vs.   State  of Mizoram  and Ors.  (1982 Crl.L.J 1793), Andhra Pradesh  High Court  in  Gedala Ramulu Naidu Vs.  State of A.P.  and  Anr. (1982  Crl.   Law  Journal 2186) and Madras  High  Court  in Chinnasamy  Vs.   State of Tamil Nadu and Ors.   (1984  Crl. Law  Journal  447) would amount to giving bonus to a  person accused  of  a  heinous  crime to have  the  minor  offences committed  with it virtually without any punishment of  law. Delhi High Court in K.C.  Das Vs.  The State (1979 Crl.  Law Journal  362)  is  shown to have adopted an  approach  which apparently is contradictory in terms.  After holding:

   "The  words  "of  the  same case"  are  important.   The section speaks of the "period of detention" undergone by the accused  person,  but it expressly says that  the  detention mentioned  refers to the detention during the investigation, inquiry 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  imprisonment impugned on the accused on conviction  must be  during the investigation, inquiry or trial in connection with the "same case" in which he has been convicted."

   the  Court by referring to an illustration formulated by itself  in  para  3  of the judgment, posed  a  question  to itself, an answered the same, observing:

   "Will  it  not  be true to say that the  accused  is  an undertrial  prisoner in the second case in our illustration. If  it  is  so  he  will be entitled to  set  off  his  pre- conviction  period against the term of imprisonment  imposed on him in the second case as in the first.  We see no ground to deny him the benefit in the second case."

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   For  reaching at this conclusion the reliance was placed upon  the judgment of this Court in Govt.  of Andhra Pradesh and  Anr.   Vs.  Anne Venkateswara Rao.  etc.  (supra).   In that  case,  this  court had nowhere held that the  set  off contemplated under Section 428 of the Code can be claimed by a  convicted  person, irrespective of his detention  in  the same case or in some other case.

   The  object of criminal justice system is to reform  the criminal  but  not  to encourage him for the  repetition  of crime.   Penology has a twin object, i.e.  (i) punishing the criminal  to avoid repetition of crime and (ii) to endeavour for  his reform wherever possible.  The increasing crime  in the  country has seriously to be taken note of.  Crime is an act  of  warfare  against community touching new  depths  of lawlessness.   The object of imposing deterrent sentences is to  protect  the  community against callous  criminals;   to administer  as  clearly  as possible to  others  tempted  to follow  into lawlessness on a war scale if they are  brought to  and  convicted, deterrent punishment will follow and  to deter  criminals  from  repeating  their  criminal  acts  in future.   Fazal  Ali,J.  in Maru Ram Vs.  Union of  India  [ 1981 (1) SCC 106) rightly observed:

   "The  question, therefore, is - should the country  take the  risk  of  innocent  lives being lost at  the  hands  of criminals  committing  heinous crimes is the holdy  hope  or wishful  thinking  that  one day or the other,  a  criminal, however dangerous or callous he may be, will reform himself. Valmikis  are  not  born  everyday and to  expect  that  our present  generation, with the prevailing social and economic environment, would produce Valmikis day after day is to hope for the impossible."

   Discretion  of treating under-trial detention period may be relevant consideration for the Court while passing orders in  terms of Section 427 of the Code but the accused  cannot be  permitted  to  claim set off of the  under-trial  period undergone  by him in connection with other cases.  Powers of the  Court  to impose sentences should not be allowed to  be regulated at the instance or discretion of the accused.

   The fall out of the interpretation giving the benefit of detention  during  investigation, inquiry and trial  in  one case,  in  the other case, may also tempt the  investigating agencies not to arrest the accused for the commission of the second  offence pending conclusion of the trial and  passing of  sentence  in  the  first  case.   After  conviction  and sentence in a criminal case, if arrested in the second case, the  accused  shall not be entitled to claim the benefit  of Section  428  of  the  Code   because  the  sentence,   upon conviction,  can obviously be not equated with the period of detention  contemplated  under Section 428 of the Code.   As such  by adopting such a recourse, the courts would not,  in any  case, advance the interests of justice but actually and factually  frustrate  its purpose defeating the  concept  of speedy trial in criminal cases.

   Facts  of this case are that the respondent was arrested on  29th  November,  1995  in   connection  with  CR  707/95 registered  at  Khar  Police Station,  Mumbai.   During  the investigation it transpired that he was also involved in the offences  registered  vide CR 737/95 on 29th November,  1995 Santacruz  Police  Station.  He was shown arrested  in  both crime numbers.  After being chargesheeted in both the cases,

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he  was  tried  separately.   In one of  the  cases  he  was convicted and sentenced under Sections 395 and 397 of IPC on 3.4.1998.   The  learned  Judge held that  the  accused  was entitled  to  set off under Section 428 of Cr.P.C.  for  the period  of  custody already undergone.  He was convicted  in the  second  case for the offences punishable under  Section 392,  395 of IPC and held entitled to set off under  Section 428  of  Cr.P.C.  The respondent prayed for his  release  as according  to him, he had already served sentences.  Relying upon the Government Resolution dated 7th September, 1974 the Jail  Authorities  refused to release the respondent on  the ground that he could not be given set off in the second case as he had been given set off in the first case.  The accused filed  a  petition  in the High Court which was  allowed  by impugned  order,  holding that the convict was  entitled  to benefit of Section 428 of the Code in both the cases for the period  of detention undergone by him during  investigation, inquiry and trial.

   In  the  light  of the view I have  taken  the  impugned judgment of the High Court cannot be sustained and is liable to be set aside.  Allowing the appeal filed by the State the judgment  impugned is set aside holding that the  respondent is  not  entitled to the benefit of set off in the  sentence awarded to him in the second case.