I am changing my earlier opinion for the reasons to be indicated hereinafter.
Section 428 of the Code of Criminal Procedure, 1973 (the "Cr.P.C" for short) enabling an accused person to set off against the sentence of imprisonment, the period of detention undergone by him at the pre-conviction stage is a new provision. There was no corresponding provision in the old Code i.e. the Code of Criminal Procedure, 1898. It was after noticing the distressing fact that in many cases the accused persons were being kept in prison for very long period as undertrial prisoners and the period of their pre-conviction incarceration was not being accounted for while finally passing the sentence of imprisonment, that the legislature included this provision in the present Code. Section 428 Cr.P.C reads as follows:-
"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:
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".
HOW THE COURTS HAVE INTERPRETED SECTION 428 C.r.P.C
Allowing set off in a solitary case of imprisonment may not pose any problem except perhaps in a case where the imprisonment awarded is imprisonment for life which eventuality will be discussed later. The difficulty arises only in those cases where a person is an accused in two or more cases and the period of his pre-conviction detention in those cases may either be concurrent or may be overlapping.
In Govt. of A.P. & others v. Anne Venkateswara Rao & Others - (1977) (3) SCC 298 = AIR 1977 SC 1096 the Supreme Court observed as follows in paragraph 7 of the said verdict :-
"It is true that the section speaks of the "period of detention" undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has been convicted. The section makes it clear that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be during the investigation, enquiry or trial in connection with the "same case" in which he has been convicted".
In paragraph 4 of Champalal Punjaji Shah v. State of Maharashtra - (1982) (1) SC 507 = AIR 1982 SC 791, a three-Judge Bench of the Supreme Court speaking through Justice O. Chinnappa Reddy followed Anne Venkateswara Rao - AIR 1977 SC 1096, and quoted with approval the aforementioned passage from Anne Venkateswara Rao.
Thereafter a two Judge Bench of the Supreme Court (E.S Venkataramiah and Sabyasachi Mukharji – JJ ) considered the question again in Raghbir Singh v. State of Haryana (1984) 4 SCC 348 = AIR 1984 SC 1796. The facts of Raghbir Singh are as follows :-
: The accused Raghbir Singh was arrested on 11-01-1980 in connection with a Delhi case for offences under Sections 457, 380 and 411 IPC and was in judicial custody in that case.
01-02-1980 : Addl. Sessions Judge, Karnal, found the accused guilty of offences under Sections 459 and 307 IPC and sentenced him to undergo rigorous imprisonment for 5 years 7 years respectively. The sentences were directed to run concurrently. There was no order for set off.
16-02-1981 : A Metropolitan Magistrate at Delhi tried the accused who was in Judicial custody in the Delhi case. The accused was found guilty of offences under Sections 457 and 380 IPC and was sentenced to undergo rigorous imprisonment for 1 year and 4 months respectively. The sentences were directed to run concurrently. Set off under Section 428 Cr.P.C was also allowed for the pre-conviction detention undergone in that case.
The State Government contented that the accused could be given set off only in one case and that too from 11-01-1980 (date of arrest) to 01-02-1980 (date of conviction and sentence in the Haryana case which was tried first) only and that from 01-02-1980 onwards his custody in prison was not detention within the meaning of Section 428 Cr.P.C, but it was custody pursuant to the sentence of imprisonment in the Haryana case.
13-09-1984 : The Supreme Court upheld the objections of the State Government and held as follows:-
(i) In order to secure the benefit of S.428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced.
(ii) But, he cannot claim a double benefit under S.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.
(iii) If a person is undergoing the sentence of imprisonment imposed by a Court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry 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.
(iv) In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence.
In Monian Pillai v. State – 1986 KLT 1370 , a learned Single Judge of the Kerala High Court held that the words "of the same case" occurring in Section 428 Cr.P.C, are not to be understood as suggesting that the set off is allowable only if the detention was in connection with the same case in which the accused is convicted and sentenced to imprisonment and that such an accused person sentenced to imprisonment would be entitled to set off against the term of imprisonment if he was undergoing detention in other cases.
In Stephen v. Public Prosecutor – 1989 (2) KLT 827 the very same learned Judge of the Kerala High Court who decided Monian Pillai, held that Monian Pillai's case (1986 KLT 1370) was wrongly decided without noticing Raghbir Singh (AIR 1984 SC 1796) and held that in order to secure the benefit of Section 428 Cr.P.C, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced and, therefore, if a person is undergoing the sentence of imprisonment imposed by a Court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment which is imposed on him in the other case even though he was under detention during such period.
Thereafter, a three-Judge Bench of the Supreme Court in State of Maharashtra v. Najakat @ Mubarak Ali (2001) 6 SCC 311 = AIR 2001 SC 2255 consisting of Justice K. T Thomas, Justice R. P Sethi and Justice S. N Phukan, considered the question again. The facts of Najakat @ Mubarak Ali, as revealed by paragraphs 5 to 8 and 41, are as follows :-
29-01-1995: Accused Mubarak Ali was arrested in connection with CR 707/95 of Khar Police Station, Mumbai for offences under Sections 395 and 397 IPC.
29-11-1995: CR 737/95 was registered by Santacruz Police Station, Mumbai against the accused for offences under Sections 392 and 395 IPC.
03-04-1998: The accused was tried and convicted in SC 230 of 1995 and sentenced to imprisonment. Set off under Section 428 Cr.P.C was also allowed.
23-07-1998: The accused was tried and convicted in SC 323 of 1996 and sentenced to imprisonment. Here also set off under Section 428 Cr.P.C was allowed.
14-09-1998: The accused sent an intimation to the Jail authorities that he is entitled to be released from jail since, according to him, giving credit to the set off allowed in both cases, he had already served the sentences imposed on him in both the cases.
09-05-2001:The majority of two Judges (Justice K. T. Thomas and Justice S. N. Phukan with Justice K. T Thomas rendering the leading Judgment) took the view that the words "of the same case" occurring in Section 428 Cr.P.C are not to be understood as suggesting that the set off is allowable only if the earlier jail term was undergone by him exclusively for the case in which the sentence is imposed. Dissenting from the view expressed by the two Judge Bench of the Supreme Court in Raghbir Singh v. State of Haryana – AIR 1984 SC 1796, the majority held that the pre-sentence period of detention undergone by the accused in jail as an under trial prisoner can be set off against the period of sentence imposed onhim irrespective of the fact whether he was in jail in connection with the same case or some other case during the said period.The majority, therefore, ordered dismissal of the State's appeal and confirmed the verdict of the High Court holding that the accused was entitled to set off in both the cases. Raghbir Singh's case was overruled.
(This view of the majority which runs counter to the earlier three Judge Bench decision of the Supreme Court in Champalal Punjaji Shah AIR 1982 SC 791 (Supra)has been followed by a three Judges' Bench in MadanLal's case to be adverted to hereinafter).
Justice R. P. Sethi who dissented from the majority, however, took the view in accord with Raghbir Singh's case and held that in order to secure the benefit of Section 428 Cr.P.C, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced.The dissenting Judge took the view that Raghbir Singh's case does not require any reconsideration and that if the view of the majority were to be followed, then any person accused of a heinous crime would be at liberty to commit minor offences and eventually escape from any imprisonment for the minor offences by claiming the status of an under trial prisoner in the main case. The learned Judge accordingly concluded that the Judgment of the High Court was unsustainable and held that the accused was not entitled to the benefit of set off in the second case.
(The dissenting view of Justice Sethi has been followed in Maliyakkal Abdul Azeez and Atul Manubhai Parekh to be adverted to hereinafter.)
NOTE: One aspect to be taken note of in this case is that, right or wrong, the accused was held entitled to set off by the trial Judges in both the cases and that direction, at least in the second case was not challenged by the State before the appropriate forum at the appropriate stage.
In Maliyakkal Abdul Azeez v. Assistant Collector, Kerala & Another – (2003) 2 SCC 439, a two-Judge Bench of the Supreme Court (Shivaraj V. Patil and ArijitPasayat – JJ ) considered the question again. The judgment is by Justice Arijit Pasayath. Even though the 3-Judge Bench decision in Najakat @ Mubarak Ali – AIR 2001 SC 2255 was also cited before the learned Judges they were inclined to follow the earlier three-Judge Bench decision in Champalal Punjaji Shah (AIR 1982 SC 791)and Anne Venkateswara Rao (AIR 1977 SC 1096).
A Division Bench of the Kerala High Court, comprising of Mr. Justice K.S Radhakrishnan and Mr. Justice Antony Dominic in Benson v. State of Kerala – 2007 (4) KLT 180, noticing the diametrically opposing verdicts took pains to make an endeavour to harmonise the apparent conflict of views as aforesaid. After a review of the entire case law, the Division Bench speaking through Mr. Justice Radhakrishnan concluded in paragraphs 6 and 8 of the verdict that Najakat @ Mubarak Ali had gone a little further in holding that in order to get the benefit of set off under Section 428 Cr.P.C it is not necessary that the accused should have undergone the pre-conviction detention exclusively for the same case in which he has been convicted and sentenced to imprisonment.
Yet another three Judges' Bench (Dr. Arijit Pasayat, Lokeshwar Singh Panta and P. Sathasivam – JJ ) of the Supreme Court in State of Punjab v. MadanLal – (2009) 5 SCC 238 examined the issue again.The three Judge Bench speaking through Mr. Justice Arijit Pasayat followed Najakat @ Mubarak Ali (AIR 2001 SC 2255). But, strangely enough, there is not even a whisper about Maliyakkal Abdul Azeez (2003) 2 SCC 439 in which the very same learned Judge had preferred to follow the earlier three Judges Bench decision in Champalal Punjaji Shah (AIR 1982 SC 791) and the verdict in Anne Venkateswara Rao(AIR 1977 SC 1096).
In Atul Manubhai Parekh v. Central Bureau of Investigation – (2010) 1 SCC 603 = 2009 (4) KLT 945 a two Judge Bench of the Supreme Court (Altamas Kabir and Cyriac Joseph – JJ ) was not inclined to follow Najakat @ Mubarak Ali. In paragraph 8 of the decision they took notice of the dissenting view of one of the Judges (R. P Sethi – J ) in Najakat @ Mubarak Ali and observed that the dissenting view was in tune with Raghbir Singh (AIR 1984 SC 1796) and the earlier three Judge Bench decision in Champalal Punjaji Shah (AIR 1982 SC 791).
THE LONG AND SHORT OF THE CASE-LAW
Thus, if we go by the preponderance of judicial opinion, more number of Judges of the Supreme Court has leaned in favour of the view that an accused person who is sentenced to imprisonment in a case would be entitled to set off the period of detention undergone by him during the investigation, inquiry or trial of that case in which he has been convicted and sentenced meaning thereby that the detention must have been exclusively for the very same case in which he is so convicted and sentenced to imprisonment. But going by the strength of the Benches and applying one school of thought that the later ruling is to be preferred to the former, Najakat @ Mubarak Ali -AIR 2001 SC 2255 and Madan Lal–(2009) 5 SCC 238 are three Judge Bench decisions and later in point of time having more binding value.
DISTINCTION BETWEEN "detention" AND "imprisonment"
Any discussion regarding the modalities of giving set off to a convict while imposing a sentence of imprisonment, cannot be complete without considering the practical aspects of "detention" and the extent to which detention can coalesce into a sentence of imprisonment. For that, one has to have a clear idea about the distinction between "detention" and "imprisonment". While "imprisonment" is one of the punishments prescribed by Section 53 of the Indian Penal Code, "detention" is not a punishment. "Detention" in the context of Section 428 Cr.P.C may include police custody or judicial custody of an accused person during the pre-conviction stage. A person who is arrested in connection with a criminal offence cannot be detained in the custody of the arresting official or an officer-in-charge of a police station for a period beyond 24 hours. Such accused person will have to be necessarily produced before the nearest Magistrate as mandated by Article 22(2) of the Constitution of India and Section 57 Cr.P.C. His "detention" in custody (whether police or judicial custody) beyond 24 hours is to be authorised by the Magistrate under Section 167 (2) Cr.P.C which applies at the pre-cognizance stage. Such "detention" in custody beyond 24 hours is usually secured by the arresting officer producing the accused and submitting a remand report to the nearest Magistrate who will authorise detention of the accused in police or judicial custody, as the case may be, by means of a remand warrant for a term not exceeding 15 days. Police custody can, however, be ordered only during the first 15 days of remand and not thereafter in view of clause (a) to the proviso to Section 167 (2) Cr.P.C and as interpreted in CBI v. Anupam J Kulkarni (1992) 3 SCC 141= AIR 1992 SC 1768. A remand of the accused to judicial custody beyond the statutory period of 60 days or 90 days, as the case may be, prescribed under paragraphs (i) and (ii) of clause (a) of Section 167 (2) Cr.P.C, can be made by the court only under Section 309 (2) Cr.P.C at the post-cognizance stage by means of a warrant. Detention of the accused in custody during the stage of investigation, inquiry or trial comes to an end when the accused is granted bail and is released from custody. Such release does not have the effect of setting him at liberty. The accused will be set at liberty only if he is finally acquitted of the offence after trial and no other case is pending against him (vide Section 354 (1) (d) Cr.P.C) and after which he is a free individual.
FACTORS WHICH INFLUENCED ME TO CHANGE MY OPINION
Section 428 Cr.P.C comes into play when an accused person who was detained in custody during the stage of investigation, inquiry or trial is after the conclusion of trial, found guilty of any offence and the court proposes to pass a sentence of imprisonment. The object of the Section is to include the period of the pre-conviction detention in jail also in the subsequent sentence of imprisonment. This is in a way a justification for the pre-conviction incarceration of the offender. But when the offender is eventually acquitted of the offence, the law is not answerable to any pre-conviction incarceration which he might have suffered during the stage of investigation, inquiry or trial. Where the accused person has been under detention as above during the stage of investigation, inquiry or trial and thereafter he is found guilty and sentenced to imprisonment, Section 428 Cr.P.C directs that the period of detention so undergone by the accused earlier in the very same case shall be adjusted towards the period of imprisonment and he need actually undergo only the remaining period of the imprisonment.
"SET OFF" TO A LIFER
As mentioned earlier, the application of Section 428 Cr.P.C normally presents no difficulty in a single case of imprisonment other than life imprisonment. In solitary cases where a sentence of imprisonment for life has been passed, it may not be permissible for the Court to straightaway give the benefit of set off to the convict at the time of passing the life sentence. This is because, a sentence of imprisonment for life is understood to mean incarceration in prison for the entire biological life (i.e. till the death) of the convict.
(vide Gopal Vinayak Godse v. State of Maharashtra – AIR 1961 SC 600 = 1961 (1) Cri L.J 736; State of M.P v. Ratan Singh – (1976) 3 SCC 470 = AIR 1976 SC 1552; Sohan Lal v. Asha Ram – (1981) 1 SCC 106 = AIR 1981 SC 174 (2); Bhagirath v. Delhi Administration – (1985) 2 SCC 580 = AIR 1985 SC 1050 – 5 Judges; Laxman Naskar (Life Convict) v. State of W.B – (2000) 7 SCC 626 = AIR 2000 SC 2762; Zahid Hussein v. State of W.B – (2001) 3 SCC 750 = AIR 2001 SC 1312; Sai Banna v. State of Karnataka – (2005) 4 SCC 165 = 2005 KHC 841; Mohd. Munna v. Union of India – (2005) 7 SCC 417 = AIR 2005 SC 3440; Swamy Sraddananda @ Murali Manohar Mishra v. State of Karnataka (2) – (2008) 13 SCC 767 = AIR 2008 SC 3040; Mohinder Singh v. State of Punjab – (2013) 3 SCC 294 = AIR 2013 SC 3622; Life Convict Bengal @ Khoka @ Prasanta Sen v. B. K .Srivastava - (2013) 3 SCC 425 = AIR 2013 SC 1163; Shankar Kisanrao Ghade v. State of Maharashtra – (2013) 5 SCC 546 = 2013 Cri.L.J 2595; Sunil Damodar Gaikwad v. State of Maharashtra – (2014) 1 SCC 129 = 2013 KHC 4709)
Section 428 Cr.P.C is attracted only when a person is sentenced to imprisonment for a term. Since life imprisonment means imprisonment till the end of the biological life of the convict, it cannot be said to the imprisonment for a term because it is not possible to predict the death of the convict while passing sentence against him. That is why a three Judge Bench of the Supreme Court in Kartar Singh v. State of Haryana – (1982) 3 SCC 1 = AIR 1982 SC 1439, held that Section 428 Cr.P.C does not apply to persons convicted for imprisonment for life. However, Kartar Singh was overruled by a Constitution Bench of the Supreme Court in Bhagirath v. Delhi Administration – (1985) 2 SCC 580 = AIR 1985 SC 1050 – 5 Judges, which held that "imprisonment for life" is also "imprisonment for a term" within the meaning of Section 428 Cr.P.C. The Constitution Bench, inter alia relied on Section 511 of the Indian Penal Code which postulates imposition of one half of the imprisonment for life, I respectfully disagree with the view in Bhagirath that imprisonment for life is also imprisonment for a term. In fact, the preceding Section 427 Cr.P.C suggests in no unmistakable terms that imprisonment for a term cannot include imprisonment for life the duration of which is a variable factor depending on the longevity of each and every lifer. The Constitution Bench, however, ruled that the question of set off to a life convict will arise for consideration only when the appropriate Government passes orders for premature release under Section 432 Cr.P.C or for commutation under Section 433 Cr.P.C. The above ruling was followed by a Division Bench of the Kerala High Court in Madhavan v. State of Kerala – 1992 (1) KLT 544 = 1994 Cri.L.J 450.
"SET OFF" TO AN ACCUSED INVOLVED IN PLURALITY OF CASES
What has baffled the Courts is the question of applying set off under Section 428 Cr.P.C in a situation where a person is a common accused in two or more cases and there is either concurrence or overlapping in the pre-conviction period of such cases.
In fact, the words, "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"
occurring in Section 428 Cr.P.C do not admit of any doubt that the set off can be allowed only in respect of the detention undergone by him earlier in the same case in which he is later on convicted and sentenced. Maliyakkal Abdul Azeez is a verdict which conforms to the principle of stare decisis since it is a salutary rule of precedent that when there are conflicting verdicts by two Benches of co-equal strength, the earlier one will prevail. Relying on the three Judge Bench of the Supreme Court in State of Tripura v. Tripura Bar Association – (1998) 5 SCC 637 the Supreme Court in Rajasthan Public Service Commission v. Harish Kumar Purohit – (2003) 5 SCC 480 = AIR 2003 SC 3476 has observed as follows :-
"The earlier decision of the Division Bench is binding on a Bench of co-ordinate strength. If the Bench hearing matters subsequently entertains any doubt about the correctness of the earlier decision, the only course open to it is to refer the matter to a larger Bench".
See also Mahadeolal Kanodia v. Administrator General of West Bengal – AIR 1960 SC 936 – 3 Judges.
In this context, what comes to my mind is the reaction by late Mr. Justice M.P. Menon of the Kerala High Court when two conflicting verdicts rendered by two Division Benches of the High Court were cited before him:
"Law may be an ass. But it should bray in the same voice from the same compound".
A FEW PRACTICAL SITUATIONS
The mechanics of Section 428 Cr.P.C can be better illustrated by the following situations :-
A person who is an absconding accused in a housebreaking and theft case (Section 454 IPC) at Mumbai, is arrested by the Pune Police in connection with a theft committed subsequently at Pune. The stolen property in the Pune case and found in the possession of the accused is seized by thepolice. On the strength of the confession by the accused while in custody, the stolen property in the Mumbai case is also recovered under Section 27 of the Evidence Act. On finding that the Mumbai Police had registered an FIR, the Pune Police transmits the recovery files to the Mumbai Police. The accused is then got remanded to judicial custody in the Pune case and is in the Sub Jail, Pune. Both cases are under investigation. While in judicial custody he commits another offence under Section 454 IPC from inside the room of one Jailer. The accused is caught red-handed and the stolen property is recovered and an FIR is registered against him. After conclusion of investigation, the respective investigating officers file charge sheets in all the three cases against the accused before the respective Courts.The Pune case is taken up for trial first. After trial the accused is acquitted of the offence and directed to be set at liberty.
ANSWER TO SITUATIONS (a) to (c) ABOVE
MY REVISED CONCLUSION
I am, therefore, both on principle as well as on precedent and after a deeper insight, inclined to differ from my own earlierArticle to opine that the observations by Mr. Justice Altamas Kabir in Atul Manubhai Parekh and by Mr. Justice K.S. Radhakrishnan in Bluson to the effect that Najakat by extending the benefit of set off under Section 428 Cr.P.C. to an accused who had not undergone pre-conviction detention in the same case in which he is convicted and sentenced to imprisonment had overstepped the law, are correct.
If my earlier opinion has misled any of the readers, I tender my apology to them as I was at that time labouring under the mistaken impression created by Najakat and its subsequent curial analysis.
After bestowing my anxious consideration to all the aspects of the matter, I am persuaded to change my earlier opinion. My revised conclusion, therefore, is as follows:-
The detention of an accused person in jail during the stage of investigation, inquiry or trial of a case takes place as a consequence of a remand warrant issue by the Court either under Section 167 (2) Cr.P.C during the pre-cognizance stage or under Section 309 (2) Cr.P.C during the post-cognizance stage. Both are instances of detention and not imprisonment. While imprisonment is a punishment, detention is not.When a person who had been under detention during the pre-conviction stage of a case is eventually convicted after trying him for an offence and a sentence of imprisonment is passed against him, the period of the pre-conviction detention undergone by him in that case is given credit to by Section 428 Cr.P.C.Doubt arises only when the same person is an accused in two or more cases and the periods of investigation, inquiry or trial in those cases are either the same or are overlapping. If the accused was remanded to custody only in one of such cases, then he will be eligible for the benefit of set off only in that particular case. He cannot claim set off in the other cases in which he was not remanded to custody. The remanded custody in one case will not be of any avail to him in the other cases in which he was not remanded to custody. Even in plurality of cases, if the accused had been remanded to custody and was undergoing pre-conviction detention in all such cases and if he is convicted and sentenced to imprisonment in one of those cases, he can get the benefit of set off in respect of the entire period of the pre-conviction detention in that case. But his status in the prison thereafter will not be that of an undertrial prisoner but as a convict and his custody thereafter will not anymore be detention but will only be post-conviction imprisonment. Therefore, in the other cases coming up for trial thereafter, the period of set off will be limited to the date of conviction and sentence in the first case in which he was convicted. What can be set off under Section 428 Cr.P.C is only the period of detention and not the period of imprisonment.
Justice V. Ramkumar is a Former Judge at High Court of Kerala.
Views are personal only.