Criminal Appeals Nos 418 419 and 484 48576
From the Judgment and Order dated 6 7 1976 of the Andhra Pradesh High Court in Writ Petition Nos
1865 1870 of 1976 respectively P Parmeswara Rao G Narayana Rao and A K Ganguli for the appellants in Crl
Appeals Nos 418 41976 and respondents in Crl
Appeals Nos 484 48576
RK Jain fox the appellant in Crl
A No 48476 and respondent in Crl
A No 41876
section Lakshminarasu for the appellant in Crl
A No 48576 and for respondent in Crl
A No 41976
The Judgment of the Court was delivered by GUPTA J
These are a group of four appeals from a common Judgment of the Andhra Pradesh High Court partly allowing two writ petitions writ petition No 1865 of 1976 filed by AV Rao and writ petition No 1870 of 1976 made by NV Krishnaiah
The High Court rejected the petition ers  prayer for setting off under section 428 of the Code of Criminal Procedure 1973 the periods during which they were in preventive detention against the term of imprisonment imposed on them on their conviction in a sessions trial but accepted their contention that they were entitled to the benefit of the remission system under the for the period during which they were in jail as under trial prisoners before their conviction Criminal Ap peals Nos 418 and 419 of 1976 by State of Andhra Pradesh are directed against the part of the High Court s Judgment granting the writ petitioners the benefit of the remission system under the treating for this purpose the period of undertrial detention on the same footing as a term of imprisonment on conviction
Appeal No 418 arises out of writ petition No 1865 of 1976 filed by AV Rao and Appeal No 419 is from writ petition No 1870 of 1976 made by NV Krishnaiah
The writ petitioners have also filed appeals against the part of the
Judgment disallowing their prayer for set off under section 428 of the Code of Criminal Procedure
Criminal Appeals Nos
484 and 485 of 1976 are by AV Rao and NV Krishnaiah respectively
All the four appeals are on certificate of fitness granted by the High Court
The relevant facts are as follows
AV Rao appel lant in appeal 484 of 1976 and respondent in appeal 418 of 1976 was in detention under the Preventive Detention Act when on December 18 1969 a first information report was filed naming him among others as an accused in a case involving offences under section 121A and 120B read with section 395 and section 120B read with section 447 of the Indian Penal Code which gave rise to sessions cases Nos 106 of 1970 and 6 of 1971 on the of the Additional Sessions Judge Hyderabad
The detention order under 9 the preventive detention law was revoked by the State Gov ernment on April 11 1970 and Rao was released on the next day April 12
He was then produced before the magistrate in connection with the sessions cases on April 13 1970 there is some doubt about this date because the record at some places mentions the date as April 18 but the discrepancy is not of any significance on the questions arising for decision in these appeals
On April 10 1972 Rao was convicted along with others and sentenced to various terms of imprisonment for the offences charged against him the maximum sentence was rigorous imprisonment for four years
The sentences were directed to run con currently
His appeal against the order of conviction was
dismissed by the High Court on November 28 1975
He filed writ petition 1865 of 1976 asking for an order on the Government of Andhra Pradesh to set off under section 428 of the Code of Criminal Procedure 1973 the time between December 19 1969 and April 13 1970 against his term of imprisonment treating the said period as the period of detention undergone by him as undertrial prisoner and to take into account the entire period during which he was in detention for the purpose of remission of his sentence under the 
The petitioner further claimed that had he been free at the time when the FIR was lodged on Decem ber 18 1969 he would have surrendered immediately and would have been produced before the court for remand on the next day as some of the co accused in the case had been it was submitted that if the concerned authority who could but did not take immediate and necessary steps to produce the petitioner before the magistrate the petition er should not be made to suffer
The facts of NV Krishnaiahs case are similar
Krish naiah appellant in appeal No 485 and respondent in appeal No 419 was also an accused in the sessions cases 106 of 1970 and 6 of 1971 with AV Rao and others
lie however was not in detention when the FIR was lodged
He was arrested in connection with the sessions cases on December 19 1969 and was in detention on remand from December 21 1969 to April 9 1972
He was also convicted by the Addi tional Sessions Judge on April 10 1972 and the maximum sentence in his case too was rigorous imprisonment for four years
He also preferred an appeal to the High Court against the order of conviction
The High Court granted him bail and he was released on bail on April 29 1972
He was arrested under the on June 26 1975
The High Court dismissed the appeal on November 28 1975
A warrant of arrest issued by the Additional Sessions Judge on December 1 1975 was served on him on December 30 1975 on which date the detention order under the was also revoked
On these Krishnaiah in his writ petition sought an order on the State of Andhra Pradesh to treat the period from June 26 1975 to November 28 1975 as remand period and to set off under section 428 of the Code of Criminal Proce dure this period during which he was under preventive deten tion against the term of imprisonment imposed on him on conviction in the sessions cases
It was also contended that the warrant issued by the Additional Sessions judge on December 1 1975 should have been served on him immediately 10 that it was no fault of his that the concerned authority chose to serve the warrant on December 30 1975 and that during this period of one month he should be deemed to have been serving the sentence imposed on him
 A further prayer was made that the entire period during which he was under detention be taken into account for remission of his sentence under the  The question for consideration in appeals 418 and 419 of 1976 preferred by the State of Andhra Pradesh is whether the period of detention undergone by the two writ petition ers in connection with the sessions cases before their conviction could be treated as a part of the period of imprisonment on conviction so as to entitle them to remis sion of their sentences under the 
The  as its preamble shows
 is an Act to amend the law relating to prisons and to provide rules for the regula tion of such prisons Section 35 of the Act defines remission system as the rules for the time being in force regulating the award of marks to and the consequent short ening of sentences of prisoners in jail
Section 59 of the provides that the State Government may make rules consistent with the Act in respect of the various matters specified in clauses 1 to 28 of the section under clause 5 of section 59 the State Government is authorised to make rules for the award of marks and the shortening of sentences
In their writ petitions both the petitioners speak of remission under the prison rules without specifying any rule under which relief is sought
The High Court viewed the question in this way Sec
428 Crl
PC clearly ordains that the remand detention shall be set off against the term of imprisonment imposed on the accused person on conviction
The section further clarifies that 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
In other words the statute equates the under trial detention or remand detention with imprison ment on conviction
The provision in so many words treats the remand  detention as part of the period of imprisonment after conviction
If remissions are given for imprisonment after conviction there is no plausible or understandable reason
 why it should be denied to the remand period when the statute equates both of them The High Court accordingly held that all the remissions that are available or permissible to the two petitioners in regard to imprison ment on conviction are available to them oven in respect of the remand period and directed the authorities to work out these remis sion and give the benefit to the petitioners
We do not consider the view taken by the High Court on this point as correct
Section 428 of the Code of Criminal Procedure
1973 is in these terms Period of detention undergone by the accused to be set off against the sentence of imprisonment 428
Where an accused person has on conviction been sentenced to imprisonment for a term the period of deten 11 tion 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 imprison ment imposed on him on such conviction and the liability of such person to undergo im prisonment on such conviction shall be re stricted to the remainder if any of the term of imprisonment imposed on him 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
The section only provides for a set off it does not equate an undertrial detention or remand detention with imprisonment on conviction
The provision as to set off expresses a legislative policy this does not mean that it does away with the difference in the two kinds of detention and puts them on the same footing for all purposes
The basis of the High Court s decision does not therefore seem to be right
Apart from that the does not confer any right upon the prisoner to claim remission
It was pointed out in GV Godse vs State of Maharashtra1 that  the does not confer on any authority a power to commute or remit sentences it provides only for the regula tion of prisons and for the treatment of prisoners confined therein
Section 59 of the confers a power on the State Government to make rules inter alia for rewards for good conduct
Therefore the rules made under the Act should be construed within the scope of the ambit of the Act
 It was explained that the rules under the do not substitute a lesser sentence for a sentence awarded by the court
The rules enable a prisoner to earn remis sions but as held in GV Godse s case the question of remission is exclusively within the province of the appro priate Government
If the Government decides to remit the punishment to which a person has been sentenced the remis sion may be worked out according to the rules framed under the 
This being the position appeals 418 and 419 of 1976 must succeed
The remaining two appeals 484 and 485 of 1976 preferred respectively by Rao and Krishnaiah may now be taken up for consideration
The claim in both these appeals is that the period of detention undergone by each appellant under the preventive detention law should be set off under section 428 of the Code Criminal Procedure against the term of imprison ment imposed on them on their conviction in the aforesaid sessions cases
The argument is that the expression period of detention in section 428 includes detention under the Preventive Detention Act or the 
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 imprison ment 1   446
12 imposed on the accused on conviction must be during the investigation enquiry or trial in connection with the same ease in which he has been convicted
We therefore agree with the High Court that the period during which the writ petitioners were in preventive detention cannot be set off under section 428 against the term of imprisonment imposed on them
There is however substance in the other point raised by the writ petitioners regarding the computation of the period during which the writ petitioner in each ease should be held to have suffered imprisonment on conviction
In AV Rao s case WP 186576 he was already in detention under the 2Preventive Detention Act when the First Information Report was lodged on December 18 1969 in connection with the sessions eases
Some of the co accused in these cases were arrested and produced before the magistrate for remand on December 19 1969 but Rao was produced before the magis trate sometime in April 1970 after he was released from preventive detention
It was argued that he also could have been produced before the magistrate for remand on December 19 1970
On behalf of the respondent State of Andhra Pradesh it was contended that as  Rao was already in deten tion under the Preventive Detention Act it was not possible to produce him before the magistrate for remand until the period of preventive detention was over we do not find any justification in law for the position taken up by the State
Rao being already in custody the authorities could have easily produced him before the magistrate when the First Information Report was lodged
Nothing has been pointed out to us either in the preventive detention law or the Code of Criminal Procedure which can be said to be a bar to such a course
That being so we think that the claim that the entire period from December 19 1969 when many of the co accused were produced before the magistrate to April 18 1970 should be treated as part of the period during which Rao was under detention as an under trial prisoner must be accepted as valid
AV Rao s Appeal No 484 of 1976 is allowed to this extent
In the case of NV Krishnaiah the Additional Sessions Judge Hyderabad issued a warrant on December 1 1975 after his appeal against conviction was dismissed by the High Court on November 28 1975
The warrant however was
served on him only on December 30 1975 on which date the order under maintenance of Internal Security Act was revoked
It is claimed  that the warrant could have been served immediately on that dismissal Of the appeal on November 28 1975 and the accused was not responsible if the authority concerned chose to serve the warrant on him on December 30 1975
In this case also the argument on behalf of the State of Andhra Pradesh is that it was not possible to forward Krishnaiah to jail consequent on his conviction in the session cases until the period of his detention under the was over
We do not see why that should be so
Section 418 requires the court passing the sentence to forthwith for ward a warrant to the jail or other place in which he accused is or is to be confined and unless the ac cused is already confined in such jail or other 13 place shall forward him to such jail or other place with the warrant
Section 418 thus does not exclude a case where the warrant concerns an accused who is already in detention On behalf of the State it was sought to be argued that if the warrant was served on Krishnaiah immediately after his conviction was upheld by the High Court in appeal the position would have been anomalous because then he would have been in detention both under the preventive detention law and as a convicted accused in a criminal case
We have not been referred to any provision either in the Code of Criminal Procedure or in the Maintenance of Internal Securi ty Act which requires the service of the warrant to be delayed until after the period of preventive detention is over
As regards the alleged anomaly of a man having to suffer two kinds of detention at the same time one preven tive and the other punitive we do not find this to be a valid objection
The position is not different from the case where a man is sentenced on different counts to a term of rigorous imprisonment and another term of simple impris onment and the sentences are directed to run concurrently
Counsel for the State referred us to the decision in Harad han Saha and another vs The State of West Bengal  others1 in support of his contention
In our opinion this case does not help him at all
What was held in this case was inter alia that the nature of preventive detention is entirely different from punitive detention and there is no bar to a man being detained under the preventive deten tion law when a criminal proceeding for the offences on which the preventive detention is based is pending
If that be so there can be no bar to the preventive and punitive detentions continuing simultaneously
We therefore allow appeal No 485 of 1976 to the extent that Krishnaiah should be taken to have serving the sentence imposed on him from December 1 1975
In the result the criminal appeals Nos 418 and 419 of 1976 by the State of Andhra Pradesh are allowed and the appeals Nos 484 and 485 of 1976 preferred respectively by AV Rao and NV Krishnaiah are allowed to the extent indicated above
MR Appeals al lowed


Summary:
The cross appeals arose from two writ petitions filed by AV Rao and N V Krishnaiah in the High Court
AV Rao s case was that while he was already in preventive detention
on December 18
a First Information Report was lodged against him in connection with some Sessions cases
Some of the co accused in  these cases were produced before the Magistrate on December 19 1969 for remand but Rao was produced before him only in mid April 1970 after his release from preventive detention
The accused in the Sessions cases were thereafter convicted and sentenced and Rao
filed a writ petition asking for an order on the State Government to set off us  the time between December 19 1969 and April 13 1970 against his term of imprisonment treating the said period as the period of detention undergone by him as an undertrial prisoner and also to take the same into account for the purpose of remission of his sentence under the Prisons Act
Rao con tended that he could have been produced before the Magistrate for remand on December 19 1969
The State Government contended that Rao could not be produced before the Magistrate for remand until the period of preventive detention was over
In the case of Krishnaiah he was in detention under the MISA when his appeal against conviction in a criminal case was dismissed by the High Court and a warrant was issued against him on December 1 1975 but was served on him only on December 30 1975 when the order against him under the MISA was revoked
The High Court rejected the petitioners  contention regarding set off under section 428 Cr
PC but accepted their contention regarding the benefit of remission
Allowing the appeals by the State and partly allowing the appeals by the original writ petitioners the Court HELD 1 Section 428 of the Cr PC 1973 only pro vides that the period of detention of an accused as under trial prisoner shall be set off against the term of impris onment imposed on him on conviction
It does not equate an undertrial detention or remand detention with imprisonment on conviction or do away with the difference in the two kinds of detention and put them on the same footing for all purposes
11B C GV Godse vs State of Maharashtra   446 referred to
2 section 428 expressly says that the period of detention mentioned refers to the detention during the investigation enquiry or trial in connection with the same case in which the accused person has been convicted
The period during which the writ petitioners were in preventive detention cannot be set off under section 428 against the term of imprisonment imposed on them
11G 12 A B 3 Section 418 does not exclude a case where the war rant concerns an accused who is already in detention
We have not been referred to any provision either in the Cr
PC or in the MISA which requires the service of the war rant to be delayed until after the period of preventive detention is over
There is no bar to the preventive and punitive detention continuing simultaneously
13A B C 2 240SCI77 8 Haradhan Saha  Anr
vs State of West Bengal  Ors
  referred to