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2002 DIGILAW 479 (PNJ)

Sukhdev Singh Kahlon v. Cbi, Chandigarh

2002-04-30

K.S.GAREWAL

body2002
Judgment K.S.Garewal, J. 1. Sukhdev Singh Kahlon filed a petition before the learned Special Judge, Chandigarh seeking set off in respect of the period spent by him in custody in RC 25/86-SPE for the purposes of the sentence awarded to him in RC 26/86-SPE. 2. The petitioner had earlier been convicted by the trial Court. In appeal before this Court the conviction was upheld but sentence was reduced to imprisonment for a period of one year. The petitioner filed a special leave petition before the Honble Supreme Court of India, which was dismissed on November 22, 2001 - conviction and sentence were upheld. In terms of the directions of the Honble Supreme Court, the petitioner surrendered and was taken into custody. He thereafter filed the petition seeking set off under Section 428 Cr.P.C. The petition was dismissed on February 15, 2002. Feeling aggrieved the petitioner has filed the instant criminal revision petition. 3. According to the record of the case, RC 25/86-SPE was registered on November 13, 1986 under the Prevention of Corruption Act, Terrorist and Disruptive Activities (Prevention) Act and some sections of the Penal Code. RC 26/86-SPE was registered a few day later on November 16, 1986 under the Prevention of Corruption Act for possession of assets disproportionate to known sources of income. It was in the latter case that the petitioner was tried and convicted. 4. The petitioner was initially arrested on November 15, 1986 and released on bail in RC-25/86-SPE on May 11, 1987 by the High Court. Thereafter, he applied for bail in RC-26/86-SPE and was released on bail on May 13, 1987 by the Special Judge, Chandigarh. The petitioners prayer is for seeking set off in respect of the above period spent in custody from November 15, 1986 till the time he was released on bail on or about May 13, 1987. Is it available to him in terms of Section 428, Cr.P.C. ? 5. The petitioner places heavy reliance on the latest pronouncement of the Honble Supreme Court of India on the majority view in State of Maharashtra v. Najakat Alia Mubarak Ali, 2001(2) RCR(Criminal) 779. Reliance has also been placed on Govt. of Andhra Pradesh and another etc. Is it available to him in terms of Section 428, Cr.P.C. ? 5. The petitioner places heavy reliance on the latest pronouncement of the Honble Supreme Court of India on the majority view in State of Maharashtra v. Najakat Alia Mubarak Ali, 2001(2) RCR(Criminal) 779. Reliance has also been placed on Govt. of Andhra Pradesh and another etc. v. Anne Venkateshwara Rao etc., 1977 Cr.L.J. 935, Chella v. The State of Rajasthan, 1977 Cr.L.J. 589, K.C. Das v. The State, 1979 Cr.L.J. 362, Lalrinfela v. State of Mizoram and others, 1982 Cr.L.J. 1982 and Baldev Singh v. State of Punjab, 1988(2) RCR 634. 6. Learned counsel for C.B.I. has made two fold submissions. Firstly, that the petitioner was no doubt in custody in RC-25/86-SPE for a period of nearly six months but he was not in custody in the present case and was, therefore, not entitled to any set off in the second case. Secondly, it has been argued that the question of the length of sentence of imprisonment which the petitioner is to undergo had already been finally settled by the Honble Supreme Court of India while dismissing the special leave petition. Therefore, this matter cannot be reopened by inviting the court to give the benefit of set off in terms of Section 428 Cr.P.C. 7. After the pronouncement of the majority view in State of Maharashtra v. Najakat Alia Mubarak Ali (supra), it will not be possible to deny the petitioner the benefit of the set off he is claiming. The petitioner had been in custody since November 15, 1986 till he was released on bail on or about May 13, 1987. This custody was during the investigation of not only RC 25/86-SPE but also RC 26/86-SPE. Therefore, the petitioner was certainly entitled to claim the set off for the period undergone in custody as stated above. In the above noted judgment the Honble Supreme Court has held as under :- "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 requisite postulated in Section 428 of the Code. 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 requisite 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 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 stage 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 sentence 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. 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 sale 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 collecation of those words." (Paragraphs 15 to 18) 8. Strangely enough the learned Special Judge, for reasons best known to him, relied upon paragraph 41 of the judgment which expounded the minority view. Therefore, the finding of the learned Special Judge is quite contrary to the majority view and the deserves to be reversed. 9. As the petitioner is not claiming any modification or reduction of sentence but is simply claiming the benefit of set off, the dismissal of his petition by the Honble Supreme Court of India should not come in his way. Ordinarily, set off is calculated and granted by the Prison authorities without any direct order from the court. It was only because the position in this case was slightly ambiguous that the petitioner was driven to seek a judicial pronouncement. Therefore, there does not appear to be any bar under law to deny the petitioner the behalf he is claiming. 10. In view of the above discussion, this petition is accepted, order dated November 15, 2002 (?) passed by the learned Special Judge, Chandigarh is hereby set aside and it is directed that the petitioner shall be entitled to the benefit of the set off in respect of the period undergone by him in custody in 1986-87 in RC-25/86-SPE.