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2006 DIGILAW 1604 (BOM)

NAMDEO @ RAM KRUSHNA KHOT v. STATE OF MAHARASHTRA

2006-10-05

J.N.PATEL, ROSHAN DALVI

body2006
ORAL JUDGMENT J. N. PATEL, J.:- Heard. 2. Rule, returnable forthwith. 2A. Learned A.P.P. waives service. 3. This is an application filed by the convict seeking set off under 428 of the Criminal Procedure Code which was not granted to him at t this court disposed of the appeal preferred by the State of Maharashtra against the applicant as well as other co-accused. The petitioner along with the co-a was tried on a charge of having committed offence under section 302 read section 34 of the Indian Penal Code by the Sessions Judge, Kolhapur. In Sessions Case No. 106 of 1986, the learned trial Court by judgment and order date 1987 acquitted all the accused including the petitioner. The State being against with the decision of the Sessions Judge preferred an appeal before this which was registered as Appeal No. 31 of 1998. On 7-8-2003 this court a the appeal preferred by the State of Maharashtra and the operative part order reads as under: 1) In the result, therefore appeal succeeds and is allowed. ii) The order of acquittal is set aside. Instead we convict the under section 302 read with section 34 of Indian Penal Code. iii) We sentence them to suffer rigorous imprisonment for life. iv) We direct the police concerned to take the accused in custody undergo the sentence awarded as aforesaid 30 days after the re this order. Their bail bond stands cancelled." 4. It appears that at the time the State preferred the appeal before this court which was taken up for hearing and came to be disposed of by the a judgment and order, the respondent No.1 i.e. the original accused No.1, Naga Khot was dead and, therefore, the appeal against him stood abated judgment and order only respondent Nos. 2 and 3 who were the original Nos. 2 and 3 came to be convicted. In the operative part of the judgment, there I have to un f under-trial lie where the is no mention of the fact that the accused who are convicted are given set off under section 428 of the Criminal Procedure code, this applicant has been filed by the accused through Jail. 5. 2 and 3 came to be convicted. In the operative part of the judgment, there I have to un f under-trial lie where the is no mention of the fact that the accused who are convicted are given set off under section 428 of the Criminal Procedure code, this applicant has been filed by the accused through Jail. 5. Initially the matter was placed before the learned single Judge who on examination of the matter found that this application will have to be placed the same bench for speaking to the minutes in his order dated 7-12-2005 and the matter was placed before the bench which decided the appeal. The bench the order on 26-7-2006 as under: "The question involved in this case is a substantial question of law requiring detailed argument. There is no reported judgment on the issue. It is not necessary that this aspect is considered by the Bench which maintained conviction only. Regular Bench taking up criminal appeals can hear the matter. List the application before the appropriate Bench for directions regarding hearing." This is how the matter is placed before us. 6. The learned A.P.P. pointed out to us that the period during which the applicant was in detention commenced from the date of his arrest which is 14-7till he came to be acquitted i.e. 3-9-1987 and that if at all this Court considers that the applicant is entitled for set off, it may pass appropriate orders. 7. In our view, though the Division Bench of this court on 26-7-2006 observed that the question involved in this case is a substantial of law requiring detailed argument and also expressed that there is no reported judgment on his issue, we are not in a position to address to the substantial question of law which involved in this case as the bench has not framed any substantial question of law which it felt required detailed argument. We do not want to express any opinion respect of the observation of the bench that there is no reported judgment on issue. 8. We find that it is a settled law that the convict is entitled to set off of the period of detention undergone as under-trial prisoner which is evident from the in reading of section 428 of the Criminal Procedure Code which is reproduced the purpose of reference. 8. We find that it is a settled law that the convict is entitled to set off of the period of detention undergone as under-trial prisoner which is evident from the in reading of section 428 of the Criminal Procedure Code which is reproduced the purpose of reference. "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 be restricted to be remainder, if any, of the term of imprisonment imposed on him." The conditions for the applications of the section are that the accused person has been convicted and sentenced (whether before or after coming into force of this new section) to imprisonment for a term which includes imprisonment for life as held in the case of Bhagirath vs. Delhi Admn., reported AIR 1985 SC 1050 . Secondly, that sentence is still running. Thirdly, such imprisonment must not have been awarded in default of payment of fine. Fourthly, he has undergone detention as an under-trial prisoner for a investigation/inquiry/trial must relate to the same case i.e. the case which claim for remission on account of pre-trial detention is made and lastly, the pretrial detention must be in relation to investigation/inquiry/trial of the same Case. If the foregoing conditions are satisfied, the accused shall have to under the balance of his sentence after deducting the period of under-trial detention only it is a settled law that the section is absolute in its mandate. It provides for of the pre-conviction detention against the term of imprisonment on conviction whatever be the term of imprisonment imposed and whatever be the factor into account by the Court while imposing the term of imprisonment. The does not say that the set-off will not be available where the Court has taken account of the pre-conviction detention while imposing the sentence. The power under section 428 can be exercised by the Appellate court while hearing the appeal against conviction or acquittal. The does not say that the set-off will not be available where the Court has taken account of the pre-conviction detention while imposing the sentence. The power under section 428 can be exercised by the Appellate court while hearing the appeal against conviction or acquittal. It does not contemplate any challenge to the conviction or sentence, but only reduces the liability: accused under the sentence. The proper procedure for claiming this benefit, therefore, would miscellaneous application by the accused to the Court at any time while the sentence runs, for passing an appropriate order for reducing the terms of imprisonment according to the section. Therefore, the application filed, applicant/convict deserves to be allowed. 9. We are not aware as to whether the co-accused in this case, Krushna Khot, who is also convict and was detained as under-trial prisoner applied for such a relief. Even if he has not done so while considering application, we also direct the benefit to be extended to the co-accused case. It appears that while passing the operative part of the judgment, the P.P. appearing for the State as well as the learned advocate appearing respondents failed to point out to the Court of having convicting not granted set 0 respondents while convicting the accused which they are entitled under; 428 of the Criminal Procedure Code. 10. Therefore, we hold that the applicant and the co-accused are entitled set off for the period they were in custody during trial i.e. from the date of their arrest i.e. 14-7-1986 till 3-9-1987 when they came to be acquitted by the trial 11. We therefore, direct the respondents to calculate the period imprisonment by giving the set off of the aforesaid period. Petition; disposed of accordingly. Rule, absolute on the aforesaid terms. Order accordingly