REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  529 OF 2004

State of Punjab ..Appellant

Versus

Madan Lal ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. The  State  of  Punjab  is  in  appeal  against  the  judgment  of  a

learned Single Judge of the Punjab and Haryana High Court allowing the

application filed in terms of Section 482 read with Section 427 of the Code

of Criminal Procedure, 1973 (in short the ‘Code’).  The prayer was to the

effect  that  the quantum of punishment  awarded may be permitted to run

concurrently in respect of the three convictions and sentences imposed.

2. The  convictions  were  in  terms  of  Section  138  of  the  Negotiable

Instruments Act, 1881 (in short the ‘Act’).  The High Court noted that all

the  transactions  related  to  the  family  of  the  respondent  and  the  matter

related  to  different  cheques  issued  by the  respondent  to  the  complainant

party.   For  this  purpose  separate  complaints  were  filed.  The High  Court

accordingly  directed  that  the  sentences  imposed  by  learned  Additional

Sessions Judge, Ludhiana and Sub Divisional Judicial Magistrate, Khanna

were to run concurrently.  

3.   According to the State the judgment of the High Court is erroneous.

4. In the impugned judgment of the High Court, reference was made to

the decision of this court in  Mohd. Akthar alias Ibrahim Ahmed Bhatti v.

Assistant Collector of Customs (Prevention), Ahmadabad and Others (AIR

1988 SC 2143) wherein it was held as under :-

“The basic rule of thumb over the years has been the so called transactions  rule  for  concurrent  sentences.   If  a  given transaction  constitutes  two  offences  under  two  enactments generally,  it  is  wrong  to  have  consecutive  sentences.   It  is proper  and legitimate  to  have  concurrent  sentences.  But  this rule has no application if the transaction relating to offence is shot  the  same or  the  facts  constituting  the  two offences  are quite different.”

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5. The majority view in State of Maharashtra v. Najakat alias Mubarak

Ali [2001(6) SCC 311] was to similar effect.  Paragraphs  14 to 18 in the

above case it was held as follows:

“14. 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

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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)

 15.   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 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.

16.    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

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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.

17.    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.

18.     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.”  (Per Justice Thomas)

6. Justice Phukan agreed with the view expressed by Justice Thomas

and observed in Para 44 as follows:

“The only question which according to me needs consideration is the true effect of the expression “same case” as appearing in Section 428 of the Code of Criminal Procedure.  The provision is couched in clear and unambiguous language and states that the period of detention which it allows to be set off against the

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term of imprisonment  imposed on the  accused on conviction must be one undergone by him during investigation, enquiry or trial in connection with the “same case” in which he has been convicted.  Any other period which is not connected with the said case cannot be said to be reckonable for set off.  The view of learned Brother Mr. Justice Thomas according to me accords the  legislative  intent.   Acceptance  of  any  other  view  would mean necessary (sic necessarily)  either  adding or  subtracting words to the existing provision, which would not be a proper procedure  to  be  adopted  while  interpreting  the  provision  in question.”  

7. Above  being  the  position,  the  appeal  is  without  merit,  deserves

dismissal which we direct.           `   

……………… …..........................J.

(Dr. ARIJIT PASAYAT)

…………………………...............J. (LOKESHWAR SINGH PANTA)

…………………………...............J. (P. SATHASIVAM)

New Delhi, March 05, 2009  

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