In State of UP Vs. Tribhuwan , the Supreme Court has held that period already undergone by a convict while he was in detention, as under-trial and as convict, could be treated as jail sentence once awarded to him and its benefit by way of set off could be given to him under Section 428 of Code.
The state had, before the Apex Court, assailed a High Court judgment wherein it had upheld conviction of one of the accused for an offence punishable under Section 325 read with Section 149 IPC, but aside the jail sentence of four years awarded to him and substituted the same by imposing only a fine of Rs.10,000/-.
It was argued before the Supreme Court that, imposition of jail sentence and fine both is mandatory once the accused is held guilty for the offence punishable under Section 325 IPC which may extend upto 7 years. The main contention urged by the state was that, the High Court, in its discretion, could reduce the award of jail sentence to any period less than four years but, in no case, it could set aside the entire jail sentence and substitute it by awarding a sentence of fine of Rs.10,000/-.
The Bench of Justice RK Agrawal and Justice AM Sapre agreed with this contention put forth by the state observing that the High Court ought to have either upheld the award of jail sentence of four years awarded by the Sessions Court or reduce the jail sentence to any reasonable term but it had no jurisdiction to fully set aside the jail sentence and substitute it by imposing only fine of Rs.10,000/-.
However, the Bench, referring to State of Maharashtra & Anr. vs. Najakat Alia Mubarak Ali, also observed that the period already undergone by the convict (40 days) while he was in detention, as under-trial and as convict, was also a jail sentence and could be treated as jail sentence once awarded to him under Section 325IPC, and accordingly its benefit by way of set off could be given to him under Section 428 of Code.
The Bench then sentenced the accused with an imprisonment of 40 days, but observed that since has already undergone the jail sentence of 40 days partly as under-trial and partly as convict, he is not required to undergo any further jail sentence.