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2021 DIGILAW 942 (BOM)

Shyam Gawas v. State Of Goa

2021-06-24

M.S.JAWALKAR, M.S.SONAK

body2021
JUDGMENT M. S. Sonak, J. - Heard Mr. Kaif Noorani, the learned counsel under the Legal Aid Scheme for the Petitioner and Mr. P. Faldessai, the learned Additional Public Prosecutor for the State. 2. Rule. Rule is made returnable forthwith at the request of and with the consent of the learned counsel for the parties. 3. This is a petition sent from jail by the petitioner who is presently suffering a sentence post his conviction for the offence under Section 302 of the Indian Penal Code. The petitioner contends that he has not been given the benefit of set-off as contemplated by Section 428 of the Code of Criminal Procedure (Cr.P.C.). 4. Mr. Noorani, the learned counsel for the petitioner submits that the benefit of Section 428 of the Cr.P.C. is virtually a statutory right of the petitioner. He submits that in circumstances similar to which the petitioner is placed, the Division Bench of this Court in Clint v/s. State of Maharashtra,2019 SCCOnLine(Bom.) 1732 has held that the benefit in terms of Section 428 of the Cr.P.C. is required to be extended to the convict suffering life imprisonment. 5. Mr. Faldessai, the learned Additional Public Prosecutor quite fairly admits that the issue raised in this petition is covered by the decision of the Division Bench in Clint v/s. State of Maharashtra (supra). 6. Accordingly, following the ruling in Clint v/s. State of Maharashtra (supra), we allow this petition and direct that the petitioner will be entitled to the benefit of Section 428 of the Cr.P.C. The question of grant of the benefit will obviously arise if and when the State considers the case of the petitioner for premature release. Similarly, it will be for the prison authorities to calculate the precise period spent by the petitioner in detention prior to his conviction. 7. The Rule is made absolute in the aforesaid terms. There shall be no order as to costs. 8. The authenticated copy of this order to be sent to the prison authorities. 9. We thank Mr. Noorani for effectively assisting the cause of the petitioner and we also appreciate the fair approach of Mr. Faldessai, the learned Additional Public Prosecutor for the State.