S.428 CrPC | Period Of 'Simple Imprisonment' During Pre-Conviction Detention Can Be Set-Off Against Sentence Of Rigorous Imprisonment: Manipur HC

The Manipur High Court has clarified that the operation of Section 428 Cr.P.C. will be 'automatic', unless the benefit is denied by judgment. It further made it clear that even if the pre-conviction period of detention suffered, is in the nature of 'simple imprisonment', it would still be liable to be set-off against a sentence of 'rigorous imprisonment' under the Section. Notably, Section 428 provides for set-off of period of detention undergone by the accused against the sentence or imprisonment. While allowing the set-off, a Single Judge Bench of Chief Justice Sanjay Kumar observed, "In the light of the above precedential wisdom and given the statutory scheme of the Code of Criminal Procedure, 1973, there can be no doubt that the pre-conviction period of detention suffered, even if it is in the nature of 'simple imprisonment', would still be liable to be set-off against a sentence of 'rigorous imprisonment'. Further, the operation of Section 428 Cr.P.C. would be automatic unless the benefit thereof is specifically denied in the judgment itself." Brief Facts: The petitioners were arrested on 22.03.2012. After a full-fledged trial, they were convicted of offences under Sections 367, 376(2)(g) and 392, IPC and sentenced to imprisonment for life, along with payment of fine, vide Judgment dated 12.06.2013. However, in appeal, the High Court reduced the sentence imposed upon the petitioners to 10 years rigorous imprisonment. They submitted that they completed the requisite incarceration on 22.03.2022, after reduction of the set-off period claimed by them. The petitioners filed this petition under Section 482 CrPC, seeking set-off of the period of detention undergone by them prior to their conviction and sentencing, under Section 428 CrPC. Questions of Law: Whether an express observation in judgment as to the applicability of Section 428 is necessary at all in the light of the statutory scheme? Whether the period of detention undergone by a person during the investigation, inquiry or trial of the same case, which would be in the nature of 'simple imprisonment', can be set-off against the 'rigorous imprisonment' that he or she is sentenced to after conviction? Primary Observations by the Court: The Court held that in the light of the proviso which was inserted to Section 428 by the 2006 Amendment to the Code, it would be necessary to take note of the provisions of Section 433A Cr.P.C. This provision deals with restriction on the power of remission or commutation in certain cases. It reads to the effect that where a sentence of life imprisonment is imposed upon conviction for an offence for which death is one of the punishments provided by law, or where a death sentence has been commuted into one of life imprisonment, such person shall not be released from prison unless he has served at least 14 years of imprisonment. The Court observed, "The statutory scheme is therefore to the effect that even in cases of life imprisonment, which would extend to at least 14 years of imprisonment, the benefit of set-off under Section 428 Cr.P.C. is available. Needless to mention, life imprisonment is invariably 'rigorous imprisonment'. Therefore, there can be no gainsaying that even a convict sentenced to undergo a term of 'rigorous imprisonment' would be entitled to seek set-off of the pre-conviction detention suffered by him in relation to the same case, which would be in the nature of 'simple imprisonment'." Reference was made to Suraj Bhan v. Om Prakash & Anr., (1976) 1 SCC 886, where the Supreme Court held that even if the conviction was prior to the enforcement of the Cr.P.C., the benefit of Section 428 therein would be available to the convict, as the said provision did not contemplate any challenge to the conviction or sentence but merely conferred benefit on the convict to reduce his liability to undergo imprisonment out of the sentence imposed for the period which he has already served as an undertrial prisoner. The Court concluded that in the light of the above precedent and given the statutory scheme of the Cr.P.C., there can be no doubt that the pre-conviction period of detention suffered, even if it is in the nature of 'simple imprisonment', would still be liable to be set-off against a sentence of 'rigorous imprisonment'. Again, the operation of Section 428 would be 'automatic' unless the benefit thereof is specifically denied in the judgment itself. At this point, the Court noted that it is perhaps the reason why, in Atul Thakur v. State of Himachal Pradesh & Ors., (2018) 2 SCC 496, the Supreme Court ended the judgment by stating that it was 'needless to mention' that the appellant would be entitled to set-off under Section 428. Therefore, the Court clarified, it would not be necessary for the authorities to insist upon an observation to this effect in the judgment of conviction/order of sentence...

S.428 CrPC | Period Of 'Simple Imprisonment' During Pre-Conviction Detention Can Be Set-Off Against Sentence Of Rigorous Imprisonment: Manipur HC

Jyoti Prakash Dutta

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