1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 7074 of 2008 ROOP SINGH V/S STATE Mr. BY POST Mr. JPS CHOUDHARY, PP Date of Order : 26.11.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- The accused has sent an application through jail for setting off the period of his detention pending investigation, and trial in his substantive sentence imposed. A reply has been filed to this application pleading that the accused was sentenced to imprisonment for life with a fine, and in default, to further undergo two months' imprisonment. Then the appeal was filed, during pendency of which, the sentence was suspended. However, finally the appeal was dismissed, and the fine was enhanced to Rs.5000/-. It is pleaded that in the warrant prepared pursuant to the judgment of the trial Court dated 26.2.1982, there was no mention of any period of police custody, or judicial custody etc., and therefore, it was 2 pleaded that he is not entitled to have the period set off thereof. In our view, the language of Section 428 Cr.P.C. is very clear. Per force this language, the period of detention, undergone during investigation, enquiry, or trial, except the imprisonment in default of payment of fine, is required to be set off against the terms of imprisonment imposed upon him. In that view of the matter, it is directed that the detention undergone by the accused during investigation, enquiry, or trial, except imprisonment in default of payment of fine, shall be set off against the substantive sentence. It is, however, clarified that before giving effect to this order, it may be ascertained from the judgment of the Appellate Court, if there is already any contrary direction, expressly providing for not setting off the sentence, and in case there is such direction, then that direction will prevail. Necessary action be taken for effecting this order, for recording warrant in accordance with law. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /tarun/