State
of Maharashtra & Anr Vs. Najakat Alia Mubarak
Ali [2001] Insc 291 (9
May 2001)
K.T.
Thomas Thomas, J.
Leave
granted.
L.I.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 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 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 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 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 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.
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