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2008 DIGILAW 919 (BOM)

Ramlal Dharma Pawar v. State of Maharashtra

2008-07-02

B.P.DHARMADHIKARI, K.J.ROHEE

body2008
JUDGMENT K. J. ROHEE, J.:- Heard. 2. Rule. Returnable forthwith. Heard finally by consent of parties. 3. The record shows that the petitioner was arrested in connection with an offence punishable under Section 302 of IPC on 3-5-1992. Since then he is in custody. By judgment dated 27-7-1993 the petitioner was convicted for life imprisonment. The operative part of the judgment of the trial Court is silent about set off under Section 428 of Cr.P.C. 4. It may be noted that by the Code of Criminal Procedure (Amendment) Act, 2005, a proviso to Section 428 of Cr.P.C. is added to the effect that "provided that in cases referred to in section 433-A, such period of detention shall be set off against the period of fourteen years referred to in that section". 5. Section 428 itself clearly contemplates that the under trial detention of the petitioner is liable to be taken into account while computing the period of life imprisonment, and therefore, he is entitled to have the said period from 3-5-1992 to 27-7-1993 set off against the punishment. Section 432 enables the appropriate Government to suspend or remit sentences, while Section 433 permits it to commute sentence. Section 433-A has been added by Amendment Act No.45 of 1978 and it introduces restriction on power of remission or commutation in certain cases. Those cases are when a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments under law and where a sentence of death imposed on any person has been commuted under section 433 into one of imprisonment for life. The Parliament has prescribed that such person receiving the benefit of commutation or remission shall not be released because of the said benefit before completion of 14 years of imprisonment. Thus in above two contingencies the accused receiving benefit under section 432 or 433 has to put in 14 years of imprisonment in any case and the orders of the appropriate Government under section 432 or 433 cannot reduce the said period. In view of this provision by 2005 amendment, the above mentioned proviso came to be added to Section 428 which substantively deals with set off. In view of this provision by 2005 amendment, the above mentioned proviso came to be added to Section 428 which substantively deals with set off. The said proviso only stipulates that for calculating the period of 14 years under above mentioned section 433- A, the period of under trial detention shall be set off i.e. shall be reduced from the said period of 14 years. The proviso, therefore, only clarifies the position in so far as the cases covered under Section 433-A are concerned. It is clarificatory in nature and in the case of the present petitioner, the law already holding the field only has been further clarified. The petitioner has yet not completed the period of his life imprisonment and as such he is entitled to have the period from 3-5-1992 to 27-7-1993 set off against the period of his life imprisonment. Hence, we pass the following order :_ The petition is allowed. The Jail Authorities are directed to extend benefit of set off for the period mentioned above to the petitioner. Rule is made absolute in the above terms. 6. The fees of Mr. N. S. Bhat, Advocate, appointed for the petitioner, are quantified at Rs.750/-. Petition allowed.