IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.07.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.No.857 of 2008 P. Kasumani .. Petitioner -Vs- 1. The Superintendent of Central Prison Salem. 2. The Inspector of Police, Karumalaikuudal Police Station, Namakkal District. .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, directing the respondents to produce the body of the detenu Puli @ Prabhu Son of Mani @ Panneerelvam before this Court and set him at liberty. For Petitioner :: Mr.M. Krishnamoorthy For Respondents :: Mr. M. Babu Muthu Meeran Addl. Public Prosecutor [for R-2 to R-4] O R D E R S.PALANIVELU, J. The petitioner is wife of detenu by name Puli @ Prabhu. He was involved in as many as 5 criminal cases in Cr.No.534/05, 616/05, 664/05, 663/05 and 311/05. First and second cases were registered under Section 454, 380 and 461 I.P.C while third and fourth cases were under sections 454 and 380 I.P.C. Last case, Sl.No.5 was registered under Section 454 r/w 511 I.P.C. First two cases were taken up in CC Nos.28 of 2006, 29 of 2006, on the file of the Judicial Magistrate No.1, Gobichettipalayam, third and fourth cases were taken on file in CC Nos.743 of 2005, 742 of 2005 on the file of the Judicial Magistrate, Trichengode and the last case was taken up in C.C.No.56 of 2006 on the file of the Judicial Magistrate, Mettur. 2. In the first four cases the detenu was convicted by the respective Courts. In the first and second case, his terms of imprisonment were two years rigorous imprisonment apiece and in third and fourth cases, rigorous imprisonment for one year each. In all these cases, he had been continuously in jail right from 30.11.2005. https://hcservices.ecourts.gov.in/hcservices/ 3. The facts that are essential for discussion and disposal of the petition are as follows: The case in CC.No.56 of 2006 was disposed of by the learned Judicial Magistrate No.2, Mettur on 12.06.2007 handing down a sentence of simple imprisonment for two years. While awarding the sentence, the Presiding Officer specifically mentioned in the Judgement that out of simple imprisonment for two years, the period from 24.04.2006 till 12.06.2007 i.e., the date of sentence, shall be set off under section 428 Cr.P.C. It is the contention of the petitioner that though the detenu had already served the sentence as imposed by the Court, still he has not been released from the prison and he has to be set at liberty. 4. Mr.M. Krishnamurthy, learned counsel for the petitioner would contend in vehemence that inasmuch as the detenu had been continuously serving the sentence imposed by various courts and also the one imposed by the Judicial Magistrate No.2, Mettur, in the fifth case, he should have been discharged from the prison on 24.04.2008, but his detention has been retained by the prison authorities, which is inadmissible in law. 5. Repelling the above contentions, Mr.M. Babu Muthu Meeran, learned Additional Public Prosecutor would submit that as per the calculation of the Prison authorities, taking into account of the periods of sentences the detenu will have to be released from the prison on 07.02.2009 and his request for earlier release from the jail cannot be entertained. He filed the reply affidavit of first respondent in which it has been calculated that from 24.04.2006 upto 01.02.2007 a period of 284 days has to be set off from the period of sentence. It is not known where from the first respondent has obtained the date 01.02.2007. The date of sentence is 12.06.2007 but as per the first respondent, beginning of sentence is 16.12.2007, adding two years with the period. As per the first respondent the date of release of the detenu is 16.12.2009. After set off as per the Judgement, the date of release will be 07.03.2009, provided the ineligible set off period is between 02.02.2007 and 11.06.2007. The Court is at loss to find out how the date of beginning of sentence could be fixed as 16.12.2007 and date of release as 07.03.2009. The reply affidavit is silent in this regard. 6. In the reply affidavit it is further stated as follows: "S.No.1 & 2 are to run concurrently, the date of release 16.12.2007 S.No.3 & 4 are to run concurrently, the date of release 14.10.2007 S.No.5, the date of release 07.03.2009" It is also mentioned therein that since the above three group of warrants are consecutive sentences one after another, the actual date of release is 07.03.2009. the set off period is restricted to the date of conviction in the first case. Hence the detenu is not able to get double benefit of spending one particular period as a convict and as an under trial prisoner. It is the essence of the contention https://hcservices.ecourts.gov.in/hcservices/ that the period directed to be set off by the Judicial Magistrate No.2 Mettur pertaining to the period of conviction in the earlier case and that period could not be availed towards set off in the subsequent case viz., in the fifth case and in case, if the accused is allowed to avail the conviction period in the previous case towards set off, he would get double benefit. 7. We are more conscious about the above said contentions. The disturbing feature is that the prosecution had not preferred any appeal as regards the sentence portion of the Judgement. Neither of the party had preferred any revision or appeal before the appropriate forum. Had the prosecutor, the Inspector of police, Karumalaikoodal police station in Salem District carried the matter in an appeal or revision, agitating the sentence portion as contended in the reply affidavit, he might have obtained proper verdict by this time. Having failed to take up the matter before the higher fora, it is now too late to contend that no set off could be given to the detenu as per the judgement. 8. We carefully scrutinised the circumstances available in this case. The failure on the part of the prosecutor is a bar for denying the benefit of set off available to the detenu. In order to have a thorough glimpse of the subject, the scheme of the code with respect to the concept of set off as incorporated in the statue has to be thoroughly looked into. Before 1973, in the old Code of Criminal Procedure there was no such analogous provision for setting off the period of sentence. The ideology has been envisaged, Sections 427 and 428 were introduced for the first time in 1973. It is apposite to note that even though the import of section 427, 428 of Cr.P.C. appear to be distinctive, the judicial pronouncements of the Supreme court paves way to decide that the intention of the legislature for providing benefit of the accused should reach him in letter and spirit. 9. In this context, it is advantageous to have extraction of both the provisions for better understanding of the principles laid down by the Apex Court: "427. Sentence on offender already sentenced for another offence:- (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. (proviso and Sub-section (2) omitted) 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 https://hcservices.ecourts.gov.in/hcservices/ imprisonment imposed on him on such 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." 10. As far as 427 Cr.P.C. is concerned, the second conviction shall be consecutive, which shall begin on the expiry of imprisonment to which the accused was previously sentenced. The terms added further are "unless the court directs that the subsequent sentence shall run concurrently with such previous sentence" 11. Proviso to Section 427 and Sub-section (2) thereof do not pertain to the issue and they are not being discussed. If the court does not specifically mention in its Judgement regarding set off, the sentence imposed by it shall run consecutively. Specific direction of the Court is sine-quo-non for providing set off. If there is specific direction, there could not be no debate. 12. As far as the case on hand is concerned, even though it has not been specifically pointed out in the sentence portion of the Judgement that the period of sentence imposed in the previous case shall be taken into consideration for the purpose of setting off for the present case, it is mentioned that the period from 12.4.2006 shall be set off. In other words, the operative portion of the Judgement viz., the sentence portion does not contain the existence of previous case nor the particulars of sentence relating to the said case. Still the Judgement cannot be said to be unsustainable for the reason that the learned Judicial Magistrate has categorically observed that the period from 24.04.2006 till the date of sentence viz., 12.06.2007, during which period the accused has been in judicial custody "in this case" shall be set off. The Judgement goes to the effect that the set off shall be under Section 428 Cr.P.C.. Strictly speaking, it should have been under Section 427. We see no illegality or infirmity in the terms employed in the final verdict of the learned Judicial Magistrate. 13. As adverted to supra, if the prosecutor entertained any doubt as to the set off part he should have got it clarified by preferring appeal or revision. It was not done. Hence the Judgement of the Judicial Magistrate become final. It cannot be reopened by other proceedings. We hasten to add that Section 427 Cr.P.C. does not contemplate about the number of previous cases but merely says the case in which the accused was previously sentenced. 14. Learned counsel for the petitioner would place reliance upon the decision reported in 2001 Supreme Court Cases (Cri)1106 [State of Maharashtra and Another vs. Najakat Alia Mubarak Ali] decided by the Larger Bench. The majority view taken in the said decision is as follows:' "21. We have no reason to think that the High Courts mentioned have gone wrong in taking the view that Section 428 of the Code permits the accused to have the period undergone by him in jail as an under trial prisoner set off against the period of sentence imposed on him irrespective of whether he was in jail https://hcservices.ecourts.gov.in/hcservices/ in condition with the same case during the period. We, therefore, respectfully dissent from the view expressed by the two-judge Bench of this Court in Raghbir Singh v. State of Haryana." 15. Earlier in Raghbir Singh's case (Raghbir singh v. State of Hariyana reported in (1984) 4 SCC 348 : 1984 SCC (Cri)616) Their Lordships had held as follows: "In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence. It is not the period of detention undergone by him during the investigation, enquiry or trial of the same case in which he is later on convicted and sentenced to undergo imprisonment. He cannot claim a double benefit under Section 428 of the Code i.e., the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well." 16. In the above said case, it was decided that the accused cannot claim a double benefit by getting set off the period during which he was in prison based on the conviction for another case. In short, it was held therein that the accused can get the benefit of set off in one of the cases but not in both. 17. When the Judgement was quoted in Bombay High Court, the learned Single Judge expressed the view that the accused is entitled to the benefit of set off in the second case as well he was in the period of custody during the course of the trial. When the matter on appeal came up before the Honourable Supreme Court, it was found appropriate that the matter be heard by a larger Bench and hence the decision in 2001 SCC (Cri) 1106 came to be pronounced. 18. Their Lordships in Najakat Alia Mubarak Ali case (supra) held that section 428 Cr.P.C. does not contain any indication that if a person was in jail as an under trial prisoner in the second case, the benefit envisaged in the Section can be continued to him in respect of the second case. Further it was also observed that the words, "of the same case" are not to be understood as suggested that the set off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. 19. As mentioned already, the detenu would avail the set off available to him by virtue of the provision under Section 427 of Cr.P.C. While Section 427 holds the affairs of the circumstances as to the sentences, it is futile to contend that he has to be released on 7.3.2009. As per the Judgement rendered in C.C.No.56 of 2006 dated 12.06.2007, the set off period shall be from 24.04.2006. Hence by 23.04.2008, the sentence of simple imprisonment for two years was over and thereafter he shall be released. 20. In view of such matter, we are of the considered view that the contention projected on behalf of the detenu has considerable https://hcservices.ecourts.gov.in/hcservices/ force. The petition deserves to be allowed. 21. In fine, the petition is allowed. The detenu/convict shall be set at liberty forthwith, unless he is required in connection with any other case. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ggs To 1. The Superintendent of Central Prison Salem. 2. The Inspector of Police, Karumalaikuudal Police Station, Namakkal District. 3. The Judicial Magistrate No.2, Mettur. 4. -Do-Thro The Chief Judicial Magistrate, Salem 5. The Public Prosecutor, High Court Madras. + 1 CC To Mr.M.Krishnamoorthy, Advocate SR NO.39983 H.C.P.No.857 of 2008 KA(CO) SRA(07/08/2008) https://hcservices.ecourts.gov.in/hcservices/