Raghbir Singh Vs. State of Haryana
[1984] INSC 168 (13 September 1984)
VENKATARAMIAH, E.S. (J) 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] 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 prevailing 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]
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 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 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.
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