1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT ::: D.B. Criminal (Parole) Writ Petition No.6438/2010 Chittar Lal. vs. State of Rajasthan. Date : 27.9.2010 HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. KAILASH CHANDRA JOSHI, J. Mr.KR Bhati, for the petitioner. Mr.KR Bishnoi, PP. - - - - - REPORTABLE BY THE COURT (PER HON'BLE TATIA, J.) Heard learned counsel for the parties. This criminal writ petition has been preferred by the petitioner who has been convicted for offence punishable under Sections 302/24 IPC and has been awarded sentence to undergo life imprisonment by the trial court vide judgment of conviction and order of sentence dated 15.12.1998 in Sessions Case No.88/1995. The trial court specifically held that the petitioner shall not be 2 entitled to set off the sentence already undergone by him during trial which set off is provided under Section 428 Cr.P.C. The petitioner preferred DB Criminal Appeal No.50/99 against his conviction and sentence. The petitioner's said appeal was dismissed by the Division Bench of this Court vide judgment dated 19.5.2003 along with DB Criminal Appeal No.409/2000 preferred by the State to challenge the acquittal of co-accused Abdul Halim and another. It appears from the judgment of this Court in the petitioner's appeal no.50/99 that no issue was raised by the petitioner with respect to the trial court's order denying him the benefit under Section 428 Cr.P.C. of set off the sentence served by the petitioner during trial. The petitioner by this writ petition has challenged part of the order of trial court dated 15.12.1998 by which he has been denied said benefit under Section 428 Cr.P.C. Learned counsel for the petitioner vehemently submitted that the order of the trial court dated 15.12.1998 is now coming in the way of the petitioner for getting his release prematurely after his serving 14 years of sentence and, therefore, the petitioner has challenged this order of the trial court dated 15.12.1998 because of the reason that when the petitioner approached the concerned authorities for his release 3 prematurely, then it was brought to his notice by the jail authorities that he is not entitled to the benefit under Section 428 Cr.P.C. in view of the trial court's order passed in the judgment convicting and sentencing him. It is also submitted that before this, the petitioner had no knowledge that he has been denied the benefit under Section 428 Cr.P.C. It is also submitted that the petitioner could not have been denied the statutory benefit by the trial court which has been passed contrary to the law laid down by the Hon'ble Supreme court in the case of Bhagirath vs. Delhi Administration reported in AIR 1985 SC 1050. Learned counsel for the petitioner also submitted that the trial court did not assign any reason much less to any special reason on the basis of which the petitioner could have been denied the benefit under Section 428 CrPC. It is also submitted that the Division Bench of this Court in appellant's appeal no.50/99 had no occasion to consider this aspect of the matter as this fact was not brought to the notice of the Division Bench that the said illegality has been committed by the trial court. In totality, according to learned counsel for the petitioner, the cause of action accrued to the petitioner after his serving sentence of 14 years including the sentence which he has served during trial. 4 Learned public prosecutor tried to support the order under challenge but so far as legal issue is concerned, learned public prosecutor frankly admitted that Section 428 CrPC has been considered in detail by the Hon'ble Supreme court in the case of Bhagirath (supra) and earlier view taken by the Hon'ble Supreme court in the case of Kartar Singh vs. State of Haryana reported in AIR 1982 SC 1439 stands overruled. We considered the submissions of learned counsel for the parties and perused the order dated 15.12.1998 and the Division Bench judgment of this Court dated 19.5.2003 delivered in appeal no.50/99. Section 428 CrPC reads as under :- “"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 conviction, and the liability of such person to undergo 5 imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him. Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section." The Hon'ble Supreme Court in Kartar Singh's case (supra) held that Section 428 CrPC has no application to the cases in which an accused is sentenced to life imprisonment. Kartar Singh's case (supra) was considered in the case of Bhagirath (supra) and the Hon'ble Supreme Court's observations in Bhagirath's case as made in paras no.7 and 8 are relevant which are as under :- “7. We see but little warrant for qualifying the word 'term' by the adjective 'fixed' which is not to be found in section 428. The assumption that the word 'term' implies a concept of ascertainability or conveys a sense of certainty is contrary to the letter of the laws, as we find it in that section. Even the marginal note to the section does not bear out that assumption. It rather belies it. And, marginal notes are now legislative and not editorial exercises. The marginal note of S,428 shows that the object of the Legislature in enacting the particular provision was to 6 provide that 'the period of detention undergone by the accused' should 'be set off against the sentence of imprisonment' imposed upon him. There are no words of limitation either in the section or in its marginal note which would justify restricting the plain and natural meaning of the word 'term so as to comprehend only sentences which are imposed for a fixed or ascertainable period. 8. To say that a sentence of life imprisonment imposed upon an accused is a sentence for the term of his life does offence neither to grammar nor to the common understanding of the word 'term'. To say otherwise would offend not only against the language of the statute but against the spirit of the law, that is to say, the object with which the law was passed. A large number of cases in which the accused suffer long undertrial detentions are cases punishable with imprisonment for life. Usually' those who are liable to be sentenced to imprisonment for life are not enlarged on bail. To deny the benefit of S.428 to them is to withdraw the application of a benevolent provision from a large majority of cases in which such benefit would be needed and justified.” In view of the above and the law laid down by the Hon'ble Supreme Court, we are of the view that the denial of benefit under Section 428 Cr.P.C. to 7 the accused by the trial court is contrary to the beneficial law enacted with special object and such benefit has been denied to the petitioner without any reason by the order of the trial court for which the petitioner could have become entitled to only after serving the requisite sentence as required under Section 428 Cr.P.C. read with Section 433A Cr.P.C. The order contained in the impugned judgment of trial court dated 15.12.1998 in Sessions case denying the benefit under Section 428 Cr.P.C. to the petitioner is per inquirium. In view of the above reasons, this writ petition is allowed and it is held that the petitioner shall be entitled to benefit of set off the period of detention undergone by him during the investigation, enquiry or trial, as the case may be, suffered by him before the date of his conviction and the respondents will be free to pass appropriate order accordingly, in case, the petitioner's case is considered for any benefit due to his serving sentence in consonance with the provisions of Section 428 read with Section 433A Cr.P.C. (KAILASH CHANDRA JOSHI), J. (PRAKASH TATIA), J. S.Phophaliya