IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 Crl.MC.No. 719 of 2011() ----------------------------- (CMP.NO.4/2011 IN C.C. NO.733/97 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, CHERTHALA) ......... PETITIONER(S): PETITIONER ---------------------------------- RAMESH, S/O. VELU,SASTHAMVELIYIL VEEDU, WARD NO.1, CHERTHALA SOUTH PANCHAYATH, AT PRESENT UNDERGOING IMPRISONMENT AS COVICT NO.5738, CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A. ANAND RESPONDENT(S): RESPONDENT ------------------------------------- STATE OF KERALA, REPRESENTED BY THE CIRCLE INSEPCTOR OF POLICE, KUTHIATHODE, THROUGH THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.J.MOHEMMAD ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.719 of 2011 --------------------------------------- Dated this 09th day of March, 2011 ORDER Petitioner was accused in C.C.No.733 of 1997 of the Court of learned Judicial First Class Magistrate-II, Cherthala and was convicted for offences punishable under Sec.279, 337, 338 and 304A of the Penal Code. He was sentenced to undergo imprisonment for various periods. He prepared Crl.Appeal.No.90 of 2001 and the learned Additional Sessions Judge, Alappuzha allowed the appeal in part modifying the sentence of imprisonment. Crl.R.P.No.24 of 2003 filed in this Court and S.L.P (Crl).No.34730 of 2010 filed in the Supreme Court failed. Petitioner surrendered on 11.11.2010 and since then is undergoing imprisonment. While so, petitioner filed C.M.P.No.4 of 2011 before learned Magistrate requesting to set off the period of detention (allegedly) undergone by him in the course of investigation. That application was dismissed by the learned Magistrate vide Annexure-1, order dated January 7, 2011 for the reason that order of this Court does not mention anything about set off. Crl.M.C.No.719 of 2011 -: 2 :- 2. Learned counsel for petitioner contends that in the light of the observation made by the Division Bench of this court in Abubacker Vs. State of Kerala (1994(2) KLT 1012) (paragraph 2), even if the judgment or order did not state that the accused is entitled to the benefit of set off under Sec.428 of the Code of Criminal Procedure (for short, "the Code”) he is entitled to avail that benefit. I have heard learned Public Prosecutor also. 3. The Supreme Court in Suran Bhan Vs. Om Prakash and Anr. (AIR 1976 Sc 648) has stated that Sec.428 of the Code confers benefit on a convict reducing his liability to undergo imprisonment out of the sentence imposed for the period which he had already served and the procedure to invoke Sec.428 of the Code could be by a miscellaneous application filed by the accused to the Court at any time while the sentence runs for passing appropriate order for reducing the term of imprisonment which is the mandate of the section. 4. In the decision relied on by learned counsel and referred supra it was held that in all cases were imprisonment for a specific term is imposed on an accused, he is entitled to claim benefit of Sec.428 of the Code irrespective of the Court imposing Crl.M.C.No.719 of 2011 -: 3 :- such imprisonment making a direction in that behalf or not. Sec.428 of the Code confers a benefit on the accused in the absence of an order allowing set off by the Court imposing imprisonment. 5. In the light of the above decisions that the judgment/order of the trial court, this court or the Supreme Court did not provide for set off does not stand in the way of petitioner claiming set off if he is otherwise entitled to that and the learned Magistrate allowing set off on the application preferred by him. In that view of the matter order passed by the learned Magistrate cannot be sustained and is liable to be set aside. Resultantly this petition is allowed. Annexure-1, order dated 07.01.2011 is set aside. C.M.P.No.4 of 2011 is remitted to the Court of learned Judicial First Class Magistrate-II, Cherthala. Learned Magistrate is directed to ascertain whether petitioner has undergone detention during the period of investigation/trial as the case may be and if so, petitioner shall be given benefit under Sec.428 of the Code as provided under law. (THOMAS P JOSEPH, JUDGE) Sbna/-