JUDGMENT - F.I. REBELLO, J.:---Admit, respondents waive service. By consent heard forthwith. The point in issue in this application is interpretation of section 428 of Criminal Procedure Code, 1973. Section 428 of Cr. P.C. reads as under: "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." On behalf of the applicant it is contended that even if a set off was given to the applicant in another case in which he has been convicted, if for any period before such conviction he was in custody during investigation, enquiry or trial in another case and before the date of such conviction such previous detention can be set off even in another case, pending during the said period. Applicant contends that by looking at the express language of section 428 itself it is apparent that such benefit can be given. He has placed reliance on a judgment of a Single Judge of the Rajasthan High Court in the case of (Chella v. The State of Rajasthan)1, 1977 Cri. L.J. 589 and an unreported judgment of this Court in the case of (Naresh Ramniklal Rathod another v. Superintendent ,Thane Central Prison, Thane)2, in Criminal Application No. 2965 of 1997 which was disposed of on 17th October, 1997. The learned Single Judge of the Rajasthan High Court has taken the view argued on behalf of the applicant herein. The learned Single Judge of this Court has also taken the same view. However, there is no discussion under what circumstances section 428 of Cr. P.C. can be attracted. The learned Single Judge of the Rajasthan High Court has taken the view argued on behalf of the applicant herein. The learned Single Judge of this Court has also taken the same view. However, there is no discussion under what circumstances section 428 of Cr. P.C. can be attracted. On behalf of the respondent State it is contended that once the applicant has been granted the benefit of set off in one case he is not entitled to avail of the period in custody as an undertrial in any other case even if such detention was as an undertrial during the investigation, enquiry or trial of such other cases. On behalf of the respondents their learned Counsel has relied on the judgment of the Apex Court in the case of (Raghbir Singh v. State of Haryana)3, A.I.R. 1984 S.C. 1796 as also the judgment of the Apex Court in (Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs (Prevention), Ahmedabad and others)4, A.I.R. 1988 S.C. 2143, Reliance has also been placed on an unreported judgment of a Single Judge of this Court in the case of (Umesh Raman Pai v. State of Maharashtra)5, in Criminal Writ Petition No. 1168 of 1996 disposed of on 21st January, 1997. To the same effect reliance is also placed on the judgment of a Full Bench of the Allahabad High Court in the case of (Mulaim Singh v. State)6, 1974 Cri L.J. 1697. 2. Before I advert to the said judgments it will be essential to look at the language of the section as it stands. It may be noted that this section has been introduced in the Code of Criminal Procedure, 1973 for the first time. Such a section was absent in the old Act. In fact the Apex Court in the case of Raghbir Singh (supra) has noted this fact in para 6 of the judgment. The Apex Court has observed that the object of introducing section 428 of the Code was with the view of remedying the unsatisfactory state of affairs that was prevailing when the former Code was in force. The Apex Court thereafter observed that it was 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. The Apex Court thereafter observed that it was 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. The section provides for setting off of the period of detention as an under-trial prisoner against the sentence of imprisonment imposed. Noting these observations of the Apex Court, and the object of the section, the section itself can now be looked into. Section provides for three situations when set off can be granted. The detention could be on account of investigation, inquiry or trial of the same case and before the date of such conviction, It is only in these situations that the benefit can be availed of. Under these circumstances can it be said therefore, that in the event the applicant has availed of the benefit in one case he is not entitled to the benefit of this section in the second case even though he was in custody on account of the inquiry, investigation or trial of the case, but before conviction. Therefore, the expression in same case will have to be considered in the event he is in detention as an undertrial in more than one case at the same time. Does this mean that the case must be the case first in point of time or subsequent cases also. The section does not provide or permit the applicant to elect in which case he is going to avail of the benefit. In the absence of a provision for election in this section, the section must be, therefore, construed in the normal sense and considering the object for which it has been introduced. A literal interpretation, therefore, of this section will indicate that if before conviction in a case, the applicant was in custody in the course of investigation, inquiry or trial, but before the date of such conviction he will be entitled to the benefit for the period in custody before such conviction. It is true that the expression 'the same case' and before the date of such conviction may lend some support to the contention raised on behalf of the respondents. It is true that the expression 'the same case' and before the date of such conviction may lend some support to the contention raised on behalf of the respondents. If the view of the respondent is to be accepted namely the same case and before conviction then even though the accused is convicted in one case, in the other case he is still an undertrial and must then be entitled to the benefit as an undertrial in the other case also. However, will such construction result in a harmonious construction which will achieve the object of the Act. As pointed out earlier there is no provision for election. Therefore, the benefit will have to be given in the case where conviction is first ordered irrespective when the case was filed and the notices of the case were issued. To my mind the construction sought to be given on behalf of the respondent-State would defeat the very object of the Act and the clear words of the section, which are detention as an undertrial in a case. In the light of this, let us, therefore, examine whether the judgments cited in support of the proposition on behalf of the applicant and/or the judgments cited on behalf of the respondent-State lend support to the propositions canvassed. 3. I will first deal with the judgments cited at the Bar on behalf of the respondents. The first judgment is in the case of Raghbir Singh (supra). A few facts may be noted in that case which will demonstrate as to what was in issue in that case and consequently what is the ratio of that judgment. The applicant therein was in judicial custody from 11th January, 1980. In the first case he was convicted on 1st February, 1980 and in the second case on 16th February, 1981. Before the Apex Court it was the contention of the petitioner that he would be entitled to the entire period between January 11, 1980 and February 16, 1981. As pointed out earlier the first conviction was on February 1, 1980. There was no dispute that he was entitled to set off between January 11, 1980 to February 1, 1980. The dispute was whether he was entitled to the period between 1st February, 1980 and February 6, 1981. Therefore, the issue which had arisen in this matter was not issue at all in that case. There was no dispute that he was entitled to set off between January 11, 1980 to February 1, 1980. The dispute was whether he was entitled to the period between 1st February, 1980 and February 6, 1981. Therefore, the issue which had arisen in this matter was not issue at all in that case. What was in issue was whether after conviction in the first case and upto the conviction in the second case he would be entitled to the benefit. The Apex Court negated the said contention. Indirectly it may be said that therefore, the issue that the applicant therein was entitled also in the second case to the benefit of the period of under-trial custody was not at all in issue. The case proceeded on the footing that he would be entitled to such set off. In the case of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti (supra) the issue in the present case was not in issue at all. What was in issue was the question whether on conviction in separate cases, sentences should be concurrent or consecutive. The judgment in the case of Mohd. Akhtar (supra) therefore, can be of no assistance to the respondent State for the contention canvassed before this Court. Even the unreported judgment in the case of Umesh Waman Pai (supra) can be distinguished. The petitioner was arrested in the year 1989 in Sessions Case No. 115 of 1989 and was released on bail in the year 1990 in the said case. On 4th June, 1992 the petitioner was arrested in Sessions Case No. 517 of 1993. On 25th March, 1994 the petitioner was convicted to undergo 5 years R.I. in Sessions Case No. 115 of 1989. Thereafter on 2nd August, 1976 the petitioner was convicted in Sessions Case No. 517 of 1993. The petitioner was given benefit of the period of detention from the year 1989 till his release on bail in Sessions Case No. 115 of 1989. While convicting the petitioner in sessions case No. 517 of 1993 the Sessions Judge ordered set off with effect from 4th June, 1992 to 25th March, 1994. The petitioner, however, contended that the set off should be from 25th March, 1994 and should also cover the period of sentence which he is undergoing in Sessions Case No. 115 of 1989 and upto 2nd August, 1996. The petitioner, however, contended that the set off should be from 25th March, 1994 and should also cover the period of sentence which he is undergoing in Sessions Case No. 115 of 1989 and upto 2nd August, 1996. It is, therefore, clear that what was in issue before the learned single judge of this Court was the contention of the applicant that the period after his conviction in Sessions Case No. 115 of 1989 and before his conviction in Sessions Case No. 517 of 1993 should also be set off. This contention was rejected by the learned single Judge of this Court. This judgment, therefore, is also of no assistance. The last judgment is of the Full Bench of the Allahabad High Court in the case of Mulaim Singh (supra). The issue therein was whether the sentence should run concurrently or consecutively. The issue in this case was not in issue before the Full Bench of the Allahabad High Court. 4. Having considered the Judgments cited on behalf of the respondents, I will now consider the judgment of the single Judge of the Rajasthan High Court. The learned Judge of the Rajasthan High Court was considering the question whether in respect of the common period of detention undergone in each case, the accused was entitled to a set off. After considering the language of section 428 the learned single Judge held that he would be so entitled. As stated earlier though no reasons were given by the learned single Judge of this Court in the case of Naresh Ramniklal Rathod (supra) the learned single Judge, however, accepted the construction put on section 428 and gave the benefit to the applicant therein. The order of this Court and the judgment of the Rajasthan High Court take the view that the set off period provided in section 428 is applicable to all cases where the accused was under detention previous to his conviction. Once there is conviction even in the event the applicant is in custody pending the trial in the second case he will not be entitled to set off after the conviction in the first case. This will be because the detention of the accused there is not because of enquiry, investigation or trial, but on account of conviction. To my mind this would be a harmonious construction of section 428 of Cr. This will be because the detention of the accused there is not because of enquiry, investigation or trial, but on account of conviction. To my mind this would be a harmonious construction of section 428 of Cr. P.C. If the view of the State is accepted then the expression "trial" in the section would have no meaning at all. The expression "trial" therefore, would also have to be given its ordinary meaning namely that if the applicant was in custody in the course of the trial whether it being one case or another case he will be entitled to the benefit. This benefit will stop the moment he is convicted in a case as in such a situation he is not in custody in the course of an enquiry, investigation or trial, but he is in custody pursuant to a conviction. Under these circumstances section 428 of Cr. P.C. will stop or become inapplicable after such conviction. I have, therefore, no hesitation in accepting the contention raised on behalf of the applicant that he is entitled to the benefit of set off also in the second case where he was in custody. In the course of the trial, it is further made clear to avoid controversy that in the event an undertrial is convicted of an offence, and at that time he was in custody in more than one case, if such sentence is undergone during the course of the trial of the other case, then on the period of sentence coming to end he will be an undertrial in the other case. In such an event from that date he will be entitled to set off for such period till the completion of trial in that case. The facts may now be noted. 5. The applicant was arrested in C.R. No. 707 of 1995 on 29th November, 1995. On the same day the applicant was also shown to be arrested in C.R. No. 737 of 1995. The applicant was tried separately in both the cases, C.R. No 707 of 1995 of Khar Police Station resulted in S.C. 230 of 1996 and C.R. No. 737 of 1995 of Santacruz Police Station resulted in S.C. No. 313 of 1996. In S.C. No. 230 of 1996 the applicant was convicted on 3rd April, 1998. The applicant was tried separately in both the cases, C.R. No 707 of 1995 of Khar Police Station resulted in S.C. 230 of 1996 and C.R. No. 737 of 1995 of Santacruz Police Station resulted in S.C. No. 313 of 1996. In S.C. No. 230 of 1996 the applicant was convicted on 3rd April, 1998. While sentencing the learned Judge was pleased to observe that the accused- applicant was entitled to set off under section 428 of Cr. P.C., for the period of custody already undergone. The sentence was for a period of 3 years and 3 months, in S.C. No. 313 of 1996. The learned Judge by order dated 23rd July, 1998 signed on 4th August, 1998 sentenced the applicant to suffer R.I for 3 years and 3 months. The learned Judge was pleased to observe that the accused- applicant was entitled to set off under section 428 of Cr. P.C. In spite of the said order the jail authorities have refused to release the applicant on the ground that he could not be given the benefit of set off in the second case as he had been given set off in the first case. Reliance for this action is placed on Government Resolution dated 7th September, 1994. In the first place the action of the respondents is totally arbitrary and in violation of the judgments of the Court. In the event the jail authorities had any difficulty it was for them to move the learned Magistrate and not suo motto take upon themselves the task of interpreting the judgments. Apart from that, as now pointed out the interpretation is totally contrary to section 428 of the Cr. P.C. On behalf of the respondents the action of the jail authorities is sought to be defended relying on Government Resolution dated 7th September, 1974 and para. 5 therein. The said paragraph 5 reads as under:- "5. 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 of period will be merged in the set off which is maximum vide example A") The construction sought to be given by para 5 of the Government Resolution is completely contrary to the interpretation of section 428 and the spirit of the section itself. In the present case if the sentences are considered, including the fine, the applicant herein would have been released sometime in September, 1998. The applicant, is, therefore in illegal detention till date after having completed the period considering the set off. Ordinarily in such cases where liberty of an individual is involved and he is kept in custody without due authority of law the State is bound to compensate the person for the period of such illegal confinement or detention. However, considering that the State was taking a particular view of the matter and that there was Government Resolution dated 7th September, 1974 and also as the first order of this Court is dated 17th October, 1997, I do not propose to award damages against the State in this particular case but issue some directions. 6. The respondents are directed to review the cases of all persons who continue to be in custody based on para 5 of the Government Resolution dated 7th September, 1994 within a period of two months from today 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. It is always open to those in custody if in spite of the fact that the judgment of this Court is brought to the notice of the jail authorities and they are still kept in custody or detention to apply to the Court for compensation and it is for the Court dealing with such matters to consider such claim. Having said so, the following order:- (i) The applicant to be released forthwith. If not required in any other case. (ii) The operative part of this order should be forthwith sent to the jail authorities by the Registrar of this Court. The Additional Public Prosecutor also to inform the jail authorities of the passing of this order. After pronouncement of the judgment Counsel for the respondent -State seeks stay of the order. Having come to the conclusion that the applicant is entitled to the benefit of section 428 of Cr. The Additional Public Prosecutor also to inform the jail authorities of the passing of this order. After pronouncement of the judgment Counsel for the respondent -State seeks stay of the order. Having come to the conclusion that the applicant is entitled to the benefit of section 428 of Cr. P.C. and the applicant is in custody beyond the period for which he has been convicted for, it is not possible to accede to the request of the State more so considering the order of the Magistrate in these cases against which the State has not preferred an Appeal or Revision. Hence, application for stay rejected. Certified copy expedited. Application allowed. *****