1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.704 OF 2009 IN CRIMINAL APPEAL NO.1309 OF 2008 Bhaskar Keshav Kumbhare ...Applicant Vs. The State of Maharashtra ...Respondent Ms. Rebecca Gonsalves, i/b.Mr.Uday Hiremath, Advocate for the Applicant Mrs. V.R. Bhosale, A.P.P for the State CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ. Dated : 22ND SEPTEMBER, 2009 P.C. : 1.Heard Ms. Gonsalves, learned Counsel for the applicant. The applicant has filed Criminal Appeal No.1309/2008 against the order of conviction and sentence passed by the learned Additional Sessions Judge at Palghar in Sessions Case No.10/2008 on 30th June 2008. However, in the said order nothing was said about the benefit of set off available under Section 428 of the Code of Criminal Procedure. 2.The applicant filed an application before the learned Additional Sessions Judge and prayed for 2 directions to extend him the benefit of set off under Section 428 of the Code of Criminal Procedure. However, by his order dated 12th December, 2008 the learned Sessions Judge was pleased to reject the said application and hence, this Criminal Application before us. 3.Shri Ganesh Mankar, Jailor II attached to the Nashik Road, Central Prison has filed his reply and has pointed out that the applicant was taken in custody on 8th November 2007 and he remained as an under-trial prisoner till the order of conviction was passed on 30th June 2008. 4.The learned Sessions Judge held that the provisions of Section 428 are not applicable when the accused is sentenced to life imprisonment and the Government has powers to take appropriate action under Section 432 of the Code of Criminal Procedure in such cases. 5.It appears that the view taken by the learned Additional Sessions Judge is based on the judgment of the Supreme Court in the case of Kartar Singh and others Vs. State of Hariyana 1982 Cr.L.J.1772. However the Constitution Bench of the Supreme Court in its subsequent decision in the case of 3 Bhagirath Vs. Delhi Administration (A.I.R. 1985 SC 1050) has over ruled the view taken in Kartar Singh s case and held that set off under Section 428 of the Code of Criminal Procedure will be available to the life convicts also. 6.Hence we allow the application and direct that the benefit of set off under Section 428 of the Code of Criminal Procedure shall be available to the applicant from the date of his first arrest i.e. 8th November, 2007. 7.Copy of this order be forwarded forthwith to the Superintendent, Nashik Central Prison. [SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.]