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2009 DIGILAW 166 (MP)

Basu @ Basantsingh v. State of Madhya Pradesh

2009-02-04

SHUBHADA R.WAGHMARE

body2009
ORDER Shubhada R. Waghmare, J. 1. By this revision, filed under Section 397 read with Section 401 of the Cr.PC, the applicant Basu has challenged the order dated 12-7-2007. By the impugned order, learned Judge of the Sessions Court, Ujjain has in Criminal Appeal No. 236/2007 held that the benefit is not available to the applicant under Section 428 of the Cr.PC seeking set off since he was incarcerated in jail for other offence than the offence impugned in Appeal No. 236/07 and since it was contrary to the provisions made under Section 428 of the Cr.PC. 2. Counsel for the appellant has stated that such an interpretation of Section 428 of the Cr.PC is contrary to the provisions of law, since if the fact of the case concerned are considered, it would be found that the applicant is entitled to the set off and the entire period of imprisonment ordered by the Trial Court for offence under Sections 5/14 of the M.P. State Security Act amounting to one year Rigorous Imprisonment and fine of Rs. 500/- have already been undergone by the accused applicant. 3. Considering the above submissions, I find that the singular question that arises for adjudication in the present revision is whether the impugned order rejecting the application of the applicant for set off is in accordance with Section 428 of the Cr.PC? 4. In this light it is very essential to consider Section 428 of the Cr.PC, it reads thus: Period of detention undergone by the accused to be set off against the sentence of imprisonment. Where an accused persons 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 persons to undergo imprisonment on such conviction shall be restricted to the remainder, if any of the term of imprisonment imposed on him. A bare reading of the section points two things that it refers to the period of detention undergone by the accused only during the investigation, inquiry or trial of the same case and only on such conviction, a set off is available to the accused and thus, the section envisages that the period could be adjusted and the accused would undergo only the remainder of the sentence. 5. Counsel for the applicant however, relying on State of Maharashtra and Anr. v. Najakat Ali Mubarak Ali (2001) SCC 311, stated that the Apex Court had considered the said case and decided as to how the word 'same' is to be interpreted. The words 'same case' do not suggest that the set off would be available only if the period undergone as an under-trial prisoner in connection with the same case in which he was later convicted and sentenced to a term of imprisonment. These words merely denote pre-sentence period of detention undergone by the accused and nothing more and the period of set off was available irrespective of whether the period of imprisonment was undergone by the accused in connection with that in case or any other case and that the Apex Court held that the period can be set off against the sentence of imprisonment imposed on conviction in that particular case. Counsel for the applicant pointed out this case has been cited and considered in the impugned judgment by the learned Judge of the Lower Court. Counsel insists that wrong interpretation has been placed by the learned Judge of Lower Court stating that the applicant was not entitled to set off despite the fact that the sentence has already been undergone by accused applicant. 6. Brief facts as can be elucidated from the impugned order and the submissions of the Counsel are that the applicant was undergoing sentence for another offence in the year 2005 and he was also convicted for offence under Sections 5/14 of the M.P. Security Act in the year 2006 against which he has filed an appeal and stated therein that the set off was not given to him in the sentence imposed in the said matter. 7. 7. Counsel for the respondent, on the other hand, laying stress on the word 'same' case used in Section 428 of the Cr.PC countered that the period of detention if any undergone by the accused during investigation, inquiry or trial of the same case can only be set off against the final judgment regarding the terms of imprisonment imposed on his conviction which is adjusted towards remainder of the terms of imprisonment, if any. 8. Counsel for the respondent has further stated that as the accused has been tried for several offences under different Codes under different Acts, the set off would not be available to him as an under trial. In the subsequent case, it could be available to him only on the first case that is prior in time. Counsel stated that the sentence would begin to run consecutively not concurrently unless directed by the Court, I find from the impugned order that this is the interpretation given by the learned Judge of the Lower Court also. 9. Considering the case of State of Maharashtra v. Najakat Ali (supra), I find that the Apex Court has gone into the question of Sections 427 and 428 of the Cr.PC. As per Justice Thomas, Judge of the Apex Court, "the Section preceding Section 428, i.e., Section 427 indicates that 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 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. Section 427 is intended to provide amelioration to the prisoner. A penumbra of the succeeding section can be glimpsed through the former provision". 10. Stressing that the purpose of Section 428 of the Code is also for advancing amelioration to the prisoner, His Lordship stated that Section 428 did not contain any indication that if the prisoner was in jail as an under-trial prisoner in a second case, the benefit could be denied to him. 10. Stressing that the purpose of Section 428 of the Code is also for advancing amelioration to the prisoner, His Lordship stated that Section 428 did not contain any indication that if the prisoner was in jail as an under-trial prisoner in a second case, the benefit could be denied to him. The ideology enshrined in Section 428 was introduced for the first time only in the Code of Criminal Procedure, 1973 and statement of objects and reasons made it 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. These are two requisites postulated in Section 428 of the Code: (1) During the stage of investigation, enquiry 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. 11. Thus, further in Paras 18 to 21 of the same judgment, the fact emerges that the words of the 'same case' used under Section 428 of the Cr.PC, 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. It must, therefore, be held 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. 12. It must, therefore, be held 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. 12. This view was taken by the Court of Full Bench of the Apex Court for overruling the judgment passed in the matter of Raghbir Singh v. State of Haryana 1984 SCC (Cri.) 616, undoubtedly the earlier view of the Apex Court in the matter of Raghbir Singh (supra), the Division Bench of the Apex Court had held that period elapsed in inquiry or trial in one case while undergoing sentence of imprisonment in an earlier case cannot be set off against the term of imprisonment imposed in the latter case. However, this revision has been overruled in (he case of State of Maharashtra v. Najakat Ali (supra), which holds the field till date. In this view of the matter, the learned Judge of Lower Court erred in interpreting the decision to the contrary and rejecting the prayer of set off. 12. From the impugned order it is evident that during trial of this case, the applicant was being produced from jail by production warrants thereby establishing (he fact that he was undergoing imprisonment for some other offence but it was during the pendency of trial for the present case for offence under Sections 5/14 of the M.P. Security Act. 13. Hence, the impugned order is set aside and it is held that the applicant Basu is entitled to set off in terms of State of Maharashtra v. Najakat At: (supra). The Trial Court is directed to consider his case in accordance with law regarding the set off claimed in this petition. 14. The petition is allowed and the Trial Court is directed to do the needful within three weeks from today and set the accused at liberty forthwith if not required for any other offence.