IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.07.2009 CORAM: THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR CRL.O.P.No.14165 of 2009 1. S.Sankar 2. Iruthayaraj @ Iruthi .. Petitioners Vs. 1.State: Inspector of Police Central Crime Branch-Metro Wing E-5, Pattinapakkam Police Station Chennai 2.The Superintendent of Central Prizon, Puzhal, Chennai 3.The Superintendent of Central Prison, Cuddalore .. Respondents PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. to set off the period of pre-conviction imprisonment of 761 days i.e. from 20.03.2002 to 19.04.2004 in S.C.No.87/2003 on the file of the Addl. District and Sessions Judge, Fast Track Court No.1, Chennai. For Petitioner : Mr.P.Vijendran For Respondents: Mr.I.Paul Nobel Devakumar Govt. Advocate (Crl. Side) ORDER The petitioners 1 and 2 herein were prosecuted along with 16 other persons (total number OF accused persons 18) for various offences, including an offence of murder punishable under section 302 IPC in S.C.No.87/2003 before the Additional District and Sessions Judge (Fast Track Court No.1), Chennai. The petitioners 1 and 2 herein figured as accused Nos.6 and 7 in the above said sessions case. The learned Additional District and Sessions Judge (Fast Track Court No.1), Chennai by a judgment dated 19.04.2004 convicted the first petitioner for an offence punishable under section 365 r/w 109 IPC, the second petitioner for an offence punishable under section 365 IPC and both the petitioners for offences punishable under sections 387, 382, 347, 364 and 201 IPC. The petitioners were awarded the punishment of rigorous imprisonment ranging from three years to 10 years for the offences other than the offence of the https://hcservices.ecourts.gov.in/hcservices/ murder punishable under section 302 IPC and awarded life imprisonment for the offence punishable under section 302 IPC. Besides substantive punishment, fine was also imposed ranging from Rs.5,000/- to Rs.50,000/-. The trial court also directed that the substantive sentences awarded for the above said offences would run concurrently. The appeal preferred against the conviction and sentence was also dismissed by this court. The maximum punishment awarded to each one of the petitioners is the life imprisonment. However, the judgment does not contain any specific direction to set off the period of pre- conviction imprisonment. According to the petitioners, they had undergone such pre-conviction imprisonment for a period of 761 days, which period they are entitled to set off against the imprisonment awarded. As there is no indication in the judgment regarding the period to be set off, the petitioners have come forward with the present petition under section 482 Cr.P.C for a direction to the respondents to set off the period of pre-conviction imprisonment of 761 days undergone by the petitioners against the imprisonment awarded by the trial court, namely Additional District and Sessions Judge (Fast Track Court No.1), Chennai in Sessions Case No.87/2003 which was subsequently confirmed by the High Court. 2. The submissions made by Mr.P.Vijendran, learned counsel for the petitioners and by Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side) representing the respondents were heard. The materials placed before the court by the petitioners were also perused. 3. The petitioners, who are life convicts have come forward with the present petition under section 482 Cr.P.C for a direction to the respondent to set off the period of imprisonment undergone by them during the course of investigation, inquiry and trial in the case in which they were convicted and sentenced to undergo rigorous imprisonment for various period for various offences ranging from three years to ten years and also to undergo life imprisonment for an offence punishable under section 302 IPC. The petitioners herein who figured as accused Nos.6 and 7 in Sessions Case No.87/2003 on the file of the Additional District and Sessions Judge (Fast Track Court No.1), Chennai were convicted and sentenced as follows:- I. Offence Sentence Imposed 1a) First Petitioner (A6) 365 r/w 109 IPC 7 years rigorous imprisonment + fine of Rs.5,000/- and a default sentence of one year rigorous imprisonment in case of default in payment of fine 1b) 2nd petitioner (A7) 365 r/w 109 IPC 7 years rigorous imprisonment + fine of Rs.5,000/- and a default sentence of one year rigorous imprisonment in case of default in payment of fine https://hcservices.ecourts.gov.in/hcservices/ II. Petitioners 1 and 2 (A6 and A7) Offence Sentence Imposed 387 IPC 7 years rigorous imprisonment + fine of Rs.5,000/- and a default sentence of one year rigorous imprisonment in case of default in payment of fine 302 IPC Life imprisonment + fine of Rs.50,000/- 347 IPC 3 years rigorous imprisonment + fine of Rs.5,000/- and a default sentence of six months rigorous imprisonment in case of default in payment of fine 364 IPC 10 years rigorous imprisonment + fine of Rs.5,000/- and a default sentence of two years rigorous imprisonment in case of default in payment of fine 201 IPC 7 years rigorous imprisonment + fine of Rs.10,000/- and a default sentence of one year rigorous imprisonment in case of default in payment of fine Total fine amount is Rs.80,000/-. All the sentences were directed to run concurrently. 4. The petitioners have now sought for a direction that the period of imprisonment undergone by them prior to the date of conviction as under trial prisoners and prisoners during investigation in the above said case should be set-off against the sentence of imprisonment awarded against them. 5. Relying on a judgment of the Hon'ble Apex court in Bhagirath v. Delhi Administration and Rakesh Kaushik v. Delhi Administration reported in AIR 1985 Supreme Court 1050, the learned counsel for the petitioners has submitted that it has become necessary for the petitioners to seek a direction under section 482 Cr.P.C to set off the period of imprisonment undergone by the petitioners before the date of conviction in the above said case, as the order of sentence does not contain any direction to set off the period of pre- conviction imprisonment against the sentence awarded in the case. 6. Section 428 of Cr.P.C reads as follows 428. Period of detention undergone by the accused to be set off against the sentence of imprisonment. — Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, 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 imprisonment imposed on him on such https://hcservices.ecourts.gov.in/hcservices/ conviction, and 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: Provided that in case referred to in section 433- A, such period of detention shall be set off against the period of fourteen years referred to in that section. 8. Section 433-A of Cr.P.C reads as follows:- "433-A. Restriction on powers of remission or commutation in certain cases.— Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment." Section 433-A of Cr.P.C imposes a restriction on the powers of the government in section 432 and 433 Cr.P.C. It relates to cases of: 1) a sentence of life imprisonment imposed on conviction of a person for an offence which is punishable also with death sentence and 2) commutation of sentence of death imposed on a person to life imprisonment under Section 433. In such cases the person convicted shall not be released from prison unless he has served at least 14 years of imprisonment including the pre-conviction imprisonment. A conjoint reading of Section 428, 432, 433 and 433-A of Cr.P.C will make it clear that a person sentenced to life imprisonment for an offence for which death sentence is also one of the punishments prescribed, shall not be released from prison, unless he has served in the prison for at least 14 years, which period shall include the pre-conviction imprisonment. 9. It is not the case of the petitioners that they would be entitled to seek release as they would have completed at least 14 years of imprisonment, if the pre-conviction imprisonment is taken into consideration. When the right under Section 428 is a statutory right, it is of no consequence whether the trial court in its judgment does or does not direct the pre-conviction imprisonment to be set off. The court does have no discretion in this regard. 10. Referring to Section 428 and 433-A of Cr.P.C and also relying on a judgment of the Hon'ble Apex court in Bhagirath v. Delhi Administration and Rakesh Kaushik v. Delhi Administration reported in AIR 1985 Supreme Court 1050, the learned counsel for the petitioners has submitted that since the order of sentence does not contain any direction to set off the period of pre-conviction imprisonment undergone before conviction in the very same case, it has become https://hcservices.ecourts.gov.in/hcservices/ necessary for the petitioners to seek such a direction under Section 482 Cr.P.C. In the above said judgment of the Hon'ble apex court, relied on by the learned counsel for the petitioner, it was held that imprisonment for life shall also be an imprisonment for a term and hence the benefit of Sections 428 and 433-A shall enure to such prisoners also. When such an emphatic pronouncement has already been made by the Hon'ble Supreme Court besides the provisions being so clear without giving any room for ambiguity, this court is at a loss to understand what is the occasion for the petitioner to approach this court for a direction under Section 482 Cr.P.C. It was contended in the case before the Hon'ble Supreme Court that the prisoner therein would have completed 14 years of imprisonment in accordance with Section 433-A, if the set off stipulated in Section 428 and 433-A of Cr.P.C. was taken into consideration. On that ground alone the prisoner therein moved for a direction to refer his case to the Delhi Administration to consider his case for commutation and an order of release on the ground that he had completed actual imprisonment for a period of 14 years. 11. In this case, the petitioners were convicted by the trial court on 19.04.2004. As per the particulars found in the petition, the petitioners had undergone imprisonment before conviction for a period of 761 days. It is not the case of the petitioners that time has ripened for seeking their release under Section 433-A Cr.P.C. Admittedly, no order commuting the life sentence into a fixed term sentence has been passed by the appropriate government under Section 433 till date. 12. Under such circumstances, the present petition filed by the petitioners on the assumption that the authorities may not consider the provisions regarding remission properly, is not only pre-mature but also mis-conceived. For that reason alone, the present petition deserves to be dismissed. Accordingly, this petition is dismissed. However, it is made clear that the petitioners, at appropriate time can make a representation to the authorities for their release. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar asr/ To 1. The Additional District and Sessions Judge, Fast Track Court No.I, Chennai. 2. -do- Thro' The Principal District Judge, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 3.Inspector of Police Central Crime Branch-Metro Wing E-5, Pattinapakkam Police Station Chennai 4.The Superintendent of Central Prizon, Puzhal, Chennai 5.The Superintendent of Central Prison, Cuddalore 6.The Public Prosecutor High Court Madras-600 104 CRL.O.P.No.14165 of 2009 JRG(CO) EM/12.10 https://hcservices.ecourts.gov.in/hcservices/