Atul Manubhai Parekh vs Central Bureau Of Investigation

August, 2009, upholding the conviction of the 2

appellant under Section 120-B and sentencing him to

undergo rigorous imprisonment for a period of 15

days and to pay a fine of Rs.10,000/-, in default

to undergo simple imprisonment for a further period

of 15 days. By the same order, the appellant was

also granted the benefit of set-off for the period

of detention he had already undergone under Section

428 Cr.P.C. This application has been filed on

behalf of the appellant, Atul Manubhai Parekh, for

a direction that he be entitled to set-off of 30

days in the present case against the detention of

15 days already undergone by him.

2. The short point involved in this application is

whether a person, who has been convicted in several

cases and has suffered detention or imprisonment in

connection therewith, would be entitled to the

benefit of set-off in a separate case for the

period of detention or imprisonment undergone by

him in the other cases.

3

3. Ms. Kamini Jaiswal, learned Advocate appearing

for the appellant, submitted that the right of a

convict to be allowed set-off in one case in

respect of detention or imprisonment undergone by

him in other cases, fell for the consideration of

this Court in State of Maharashtra & Anr. vs.

Najakat Alia Mubarak Ali [(2001) 6 SCC 311],

wherein three Judges of this Court had occasion to

consider the provisions of Section 428 Cr.P.C., and

it was the majority view that the period of

imprisonment undergone by an accused as an

undertrial during investigation, enquiry or trial

of a particular case, irrespective of whether it

was in connection with that very case or other

cases, could be set-off against the sentence of

imprisonment imposed on conviction in that

particular case. Their Lordships held that the

words "same case" used in Section 428 do not

suggest that set-off would be available only if the 4

period undergone as an undertrial prisoner is in

connection with the same case in which he was later

convicted and sentenced to a term of imprisonment.

According to Their Lordships, the said expression

merely denoted the pre-sentence period of detention

undergone by an accused and nothing more.

4. Ms. Jaiswal also referred to the Three-Judge

Bench decision of this Court in State of Punjab vs.

Madan Lal [(2009) 5 SCC 238], where also the

provisions of Section 428 of the Code fell for

consideration and the decision in Najakat Alia's

case was noticed with approval. While deciding the

matter, the Hon'ble Judges had occasion to consider

the objects and reasons for introducing Section 428

into the Code of Criminal Procedure, 1973 by

amendment. The Hon'ble Judges extracted a portion

of the objects and reasons, wherein it was stated

that in many cases the accused person is made to

suffer jail life for a period out of all proportion 5

to the gravity of the offence or even to the

punishment provided in the statute. Their

Lordships emphasized that the new clause provides

for the setting off of the period of detention as

an undertrial prisoner against the sentence of

imprisonment imposed on him. Their Lordships

interpreted the same to mean that the purpose of

introduction of Section 428 into the Code was to

give the convicted person the right to reckon the

period of his sentence of imprisonment from the

date he was in jail as an undertrial prisoner and

that the period of his being in jail as an

undertrial prisoner would be added as a part of the

period of imprisonment to which he was sentenced.

5. Ms. Jaiswal, therefore, submitted that in the

light of the aforesaid decisions the petitioner was

entitled to set off of all periods of detention

unconnected with the case in which he has been

convicted and sentenced. It was urged that the 6

High Court had erred in rejecting the petitioner's

prayer for grant of set-off against periods of

imprisonment already undergone by him in connection

with other cases.

6. Ms. Jaiswal's submissions were opposed on

behalf of the Central Bureau of Investigation by

the learned Additional Solicitor General who

contended that the question involved in these

appeals had fallen for consideration before this

Court earlier, also by a Three-Judge Bench in

Champalal Punjaji Shah vs. State of Maharashtra

[(1982) 1 SCC 507], where this Court was called

upon to decide as to whether the period of

detention under the Preventive Detention Act could

be set-off under Section 428 of the Code. In the

said context, this Court held that the period of

detention under preventive detention laws could not

be counted for the purposes of Section 428 Cr.P.C.

It was further contended that the question of 7

applicability of Section 428 in respect of a period

which had lapsed in an earlier case, could not be

set-off against the term of imprisonment imposed in

the latter case. It was held that in order to

secure the benefit of Section 428 of the Code, the

prisoner has to show that he had been detained in

prison for the purpose of investigation, enquiry or

trial of the case for which he is later on

convicted and sentenced, but he cannot claim a

double benefit under Section 428, i.e., the same

period being counted as part of the period of

imprisonment imposed for committing the former

offence and also being set-off against the period

of imprisonment imposed for committing the latter

offence as well. Their Lordships further held that

if a person is undergoing a sentence of

imprisonment on being convicted of an offence in

one case during the period of investigation,

enquiry or trial of some other case, he cannot

claim that the period occupied by such 8

investigation, enquiry or trial should be set-off

against the sentence of imprisonment to be imposed

in the latter case, even though he was under

detention during such period. In such a case, the

period of detention is really a part of the period

of imprisonment which he is undergoing on being

sentenced for another offence. It was submitted

that the subsequent judgments of the Three-Judge

Benches of this Court reveals that there were

misgivings regarding the law sought to be explained

in the said cases. It was submitted that the High

Court did not commit any error in sentencing the

appellant to undergo rigorous imprisonment for a

period of 15 days under Section 120-B of the Indian

Penal Code and to also pay a fine of Rs.10,000/-

and in default to undergo simple imprisonment for

a further period of 15 days.

7. We have carefully considered the submissions

made on behalf of both the parties, having 9

particular regard to the two views expressed as to

whether the period of detention undergone by an

accused in some other case could be the subject

matter of an order of set-off in connection with a

different case. At this juncture, it may be

relevant to reproduce the provision of Section 428

Cr.P.C. :

"428. 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 shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.

10 Provided that in cases referred to in Section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section."

8. From the wording of Section 428 it is clear

that what is to be set-off is the period of

detention, if any, undergone by the convict during

the investigation, enquiry or trial of the same

case and before the date of such conviction. What

has fallen for the interpretation of the courts is

the expression "the same case". While in one set

of judgments it has been held that periods of

detention undergone in connection with other cases

can be counted towards set-off under Section 428

Cr.P.C. in respect of the conviction in another

case, in the other set of cases it has been held

that it cannot. However, even in Najakat Alia's

case, one of the three Hon'ble Judges took a

dissenting view that set-off under Section 428 of

the Code would have to be in respect of the 11

detention undergone in respect of the same case.

It is the said view which had earlier been accepted

in Raghbir Singh v. State of Haryana [(1984) 4 SCC

348] and in the case of Champalal Punjaji Shah's

case (supra).

9. The wording of Section 428 is, in our view,

clear and unambiguous. The heading of the Section

itself indicates that the period of detention

undergone by the accused is to be set off against

the sentence of imprisonment. The Section makes it

clear that the period of sentence on conviction is

to be reduced by the extent of detention already

undergone by the convict during investigation,

enquiry or trial of the same case. It is quite

clear that the period to be set off relates only to

pre conviction detention and not to imprisonment on

conviction.

10. Let us test the proposition by a concrete

example. A habitual offender may be convicted and 12

sentenced to imprisonment at frequent intervals.

If the period of pre-trial detention in various

cases is counted for set-off in respect of a

subsequent conviction where the period of detention

is greater than the sentence in the subsequent

case, the accused will not have to undergo

imprisonment at all in connection with the latter

case, which could not have been the intention of

the legislature while introducing Section 428 in

the Code in 1973. The reference made in the

several decisions cited before us to Section 427

Cr.P.C. appears to be a little out of focus since

the same deals with several sentences passed in the

same case against the same accused on different

counts which are directed to run concurrently.

Section 428 Cr.P.C. deals with a different

situation, where the question of merger of sentence

does not arise and the period of set-off is in

respect of each separate case and the detention

undergone by the accused during the investigation 13

or trial of such case. The philosophy of Section

428 Cr.P.C. has been very aptly commented upon by

this Court in Government of A.P. vs. Anne

Venkateswara Rao (1977) 3 SCC 298, in the following

terms :

"Section 428 provides that the period of detention of an accused as an undertrial prisoner shall be set off against the term of imprisonment imposed on him on conviction."

11. In fact, a similar situation arose in the case

of Maliyakkal Abdul Azeez vs. Asstt. Collector,

Kerala & Anr. [(2003) 2 SCC 439], wherein it was

sought to be argued on behalf of the petitioner

that he was entitled to the benefit of set-off

under Section 428 Cr.P.C. for the period of

detention under the Conservation of Foreign

Exchange and Prevention of Smuggling Activities

Act, 1974. While deciding the said case, the

Hon'ble Judges observed that Section 428 Cr.P.C. 14

had been brought on the statute book for the first

time in 1973 and was incorporated in the light of

the proposal put forward by the Joint Select

Committee which noticed that in many cases the

accused persons were kept in prison for a very long

period as undertrial prisoners and in some cases

the period spent in jail by undertrial prisoners

far exceeded the sentence of imprisonment

ultimately awarded. It was also noticed by the

Select Committee with concern that a large number

of prisoners in the overcrowded jails of the

country were undertrial prisoners and that Section

428 Cr.P.C. was introduced to remedy the

unsatisfactory state of affairs by providing for

setting-off of the period of detention as an

undertrial prisoner against the sentence of

imprisonment imposed on the accused.

12. The decision in the case of Maliyakkal Abdul

Azeez (supra) was rendered after the decision in 15 Najakat Alia's case (supra) and we respectfully

follow the same as it reiterates the law laid down

in the earlier cases such as in the case of Anne

Venkateswara Rao (supra), Raghubir Singh (supra)

and Champalal Punjaji Shah (supra).

13. The facts on which the decision was rendered

in Najakat Alia Mubarak Ali's case are

distinguishable from the facts of this case. In the

said case, the convict was undergoing imprisonment

in two cases in which he had been convicted and he

claimed that he was entitled to set-off in respect

of both the cases. This Court drawing inspiration

from Section 427 on the concurrent running of

sentences, held that the petitioner was entitled to

set-off in both cases in view of the doctrine of

merger of sentences when directed to run

concurrently in a particular case where conviction

is on many counts.

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14. The application filed by Atul Manubhai Parekh,

being Criminal Misc. Petition No.13384 of 2009, in

the disposed of Criminal Appeal No.164 of 2004, and

the connected applications being Criminal Misc.

Petition No.13382 of 2009 in Criminal Appeal No.905

of 2005, Criminal Misc. Petition No.13381 of 2009

in Criminal Appeal No.925 of 2005 and Criminal

Misc. Petition No.17357 of 2009 in Criminal Appeal

No.90 of 2004, are, accordingly, dismissed.

................................................J. (ALTAMAS KABIR)

................................................J. (CYRIAC JOSEPH) New Delhi Dated: 24.11.2009.