IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :15.06.2010 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Crl.A.No.526 of 2009 Jacob Chacko Theketala .. Appellant/A.4 Versus State of Tamil Nadu, Represented by CBI, New Delhi, Camp at Chennai. .. Respondent/Complainant Prayer:- Criminal Appeal filed under Section 374 (2) of Cr.P.C., against the judgment dated 30.01.2008 passed in C.C.No.1 of 2008 by the learned Additional Special Judge, CBI Cases, Chennai for non remission of the period of imprisonment prior to the date of Judgment. For Appellant : Mr.T.Arulraj For Respondent : Mr.N.Chandrasekaran, Special Public Prosecutor for CBI Cases. JUDGMENT The appellant herein is the fourth accused in C.C.No.1 of 2008 on the file of the learned Additional Special Judge for CBI Cases, Chennai and he stands convicted for the offences under Sections 255, 258 and 420 I.P.C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to undergo imprisonment for six months for the offence under Section 255 I.P.C.; sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to undergo imprisonment for six months for the offence under Section 258 I.P.C.; and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to undergo rigorous imprisonment for six months for the offence under Section 420 I.P.C. and the sentence of imprisonment are ordered to run concurrently. Aggrieved by the said conviction and sentence, the appellant herein has preferred this Criminal Appeal. https://hcservices.ecourts.gov.in/hcservices/ 2. The appellant pleaded guilty before the trial Court and on the basis of his plea of guilt, the trial Court convicted and sentenced him as stated above. 3. Mr.T.Arulraj, learned counsel appearing for the appellant has submitted that the two other co-accused viz., A.1 by name Abdul Karim Telgi @ Lala @ Karim Lala @ Big Boss and A.3 by name C.S.Balaji, who also pleaded guilty and were convicted by the trial Court preferred appeals before this Court and in the appeals preferred by them they were acquitted from the charge under Section 255 I.P.C. for the reason that the prosecution case do not constitute an offence under Section 255 I.P.C. The similar benefits must be extended to this appellant also. The learned counsel for the appellant has further submitted that the appellant is confined in jail from 22.03.2003 and though he was arrested in connection with another case, a final report was filed in this case on 21.12.2005 and this appellant was shown as one of the accused and P.T. Warrant also was issued and the appellant was produced before the trial Court periodically. As such, the appellant should have been treated as under-trial prisoner in this case also and the trial Court should have given the benefit of Section 428 of Cr.P.C. setting off the period of imprisonment prior to the date of judgment in this case. It is also submitted that in spite of the fact of detention of the appellant in Pune jail, being brought to the notice of the learned Special Judge, the benefit under Section 428 of Cr.P.C. has not been given to him and an injustice is caused to the appellant. 4. The learned Special Public Prosecutor appearing for CBI Cases has submitted that the conviction under Section 255 I.P.C. in respect of the co-accused has already been set aside as per the judgment of this Court rendered on 08.04.2010 in Crl.A.Nos.436 and 766 of 2008. It is further submitted that with regard to the application of Section 428 Cr.P.C. set off to this appellant he was not arrested by the respondent police in connection with this case and he was an under-trial prisoner in Pune in respect of another case of similar nature in which he was arrested. Being not arrested in this case his detention in prison in respect of another case the benefit of Section 428 Cr.P.C. cannot be given to this appellant. 5. This Court has considered the submissions made by the learned counsel on either side and also perused the materials available on record. 6. This Court had already set aside the conviction and sentence imposed on the first and third accused viz., Abdul Karim Telgi @ Lala @ Karim Lala @ Big Boss and C.S.Balaji for the offence under Section 255 I.P.C. in the judgment rendered in Crl.A.Nos.436 and 766 of 2008 and the judgment of which is also reported in 2010 (1) L.W. (Crl.) 621, wherein, in paragraph No.13, it is observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ "13. In view of the ratio laid down in the cases cited supra, this Court is of the considered view that if the facts do not constitute an offence, but the charge is framed, the accused pleads guilty and convicted on such plea, such conviction is challengeable in appeal and Section 375 Cr.P.C. does not stand as a bar, on the other hand it permits an appeal when the legality of the sentence is challenged." 7. Therefore, the conviction and sentence imposed on the appellant/A.4 under Section 255 I.P.C. are set aside and the conviction and sentence imposed on the accused under Sections 258 and 420 I.P.C. are confirmed. 8. As per the final report filed before the Court, the appellant, who is the fourth accused in this case, was not shown arrested by the respondent police pending investigation though he was confined in the prison at Pune. The final report was filed in this case on 21.12.2005 and the learned Special Judge also issued a P.T. Warrant for the production of the appellant/A.4 and other accused, who were in prison. On 23.01.2006, the appellant was produced before the trial Court. Subsequently, on various dates the appellant was produced before the trial Court by the jail authorities and finally, the appellant was produced before the trial Court on the date of judgment also. It appears from the records that after filing the final report, the accused was produced before the trial Court for the first time on 23.01.2006 on the basis of the P.T. Warrant issued by the trial Court and thereafter till the date of Judgment, several times he had been produced on the basis of the P.T. Warrant issued by the trial Court. From the date of filing the final report and till the date of the judgment, the appellant was in jail. Though he had not been arrested by the respondent police, he had been brought to the trial Court and he was under the purview of the Court. 9. The question now arises for consideration is 1) The appellant being not arrested by the respondent police and not remanded to custody in connection with this case but having been in jail during the period of trial in this case. Whether the appellant could be treated as under-trial prisoner for this case during the relevant period and that period could be set off as per Section 428 Cr.P.C. 10. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him." 11. It is observed by the Hon'ble Supreme Court in the case of Atul Manubhai Parekh Vs. Central Bureau of Investigation reported in 2010 (1) MWN (Cr.) 139 (SC) as follows:- "9. The wording of Section 428 is, in our view, clear and unambiguous. The heading of the Section itself indicates that the period of detention undergone by the accused is to be set off against the sentence of imprisonment. The Section makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. It is quite clear that the period to be set off relates only to pre conviction detention and not to imprisonment on conviction. 10. Let us test the proposition by a concrete example. A habitual offender may be convicted and sentenced to imprisonment at frequent intervals. If the period of pre-trial detention in various cases is counted for set off in respect of a subsequent conviction where the period to detention is greater than the sentence in the subsequent case, the accused will not have to undergo imprisonment at all in connection with the latter case, which could not have been the intention of the legislature while introducing Section 428 in the Code in 1973. The reference made in the several decisions cited before us to Section 427, Cr.P.C. appears to be a little out of focus since the same deals with several sentences passed in the same case against the same accused on different counts which are directed to run concurrently. Section 428, Cr.P.C. deals with a different situation, where the question of merger of sentence does not arise and the period of set off is in respect of each separate case and the detention undergone by the accused during the investigation or trial of such case. The philosophy of Section 428, Cr.P.C., has been very aptly commented upon by this Court in Government of A.P. V. Anne Venkateswara Rao, 1977 (3) SCC 298, in the following terms: https://hcservices.ecourts.gov.in/hcservices/ "Section 428 provides that the period of detention of an accused as an undertrial prisoner shall be set off against the term of imprisonment imposed on him on conviction." 11. In fact, a similar situation arose in the case of Maliyakkal Abdul Azeez v. Asstt. Collector, Kerala & Anr., 2003 (1) CTC 316 (SC): 2003(2) SCC 439, wherein it was sought to be argued on behalf of the petitioner that he was entitled to the benefit of set-off under Section 428, Cr.P.C., for the period of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. While deciding the said case, the Hon'ble Judges observed that Section 428, Cr.P.C., had been brought on the statue book for the first time in 1973 and was incorporated in the light of the proposal put forward by the Joint Select Committee which noticed that in many cases the accused persons were kept in prison for a very long period as undertrial prisoners and in some cases the period spent in jail by undertrial prisoners far exceeded the sentence of imprisonment ultimately awarded. It was also noticed by the Select Committee with concern that a large number of prisoners in the overcrowded jails of the country were undertrial prisoners and that Section 428, Cr.P.C., was introduced to remedy the unsatisfactory state of affairs by providing for setting-off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on the accused. 12. The decision in the case of Maliyakkal Abdul Azeez (supra) was rendered after the decision in Najakat Alia's case (supra) and we respectfully follow the same as it reiterates the law laid down in the earlier cases such as in the case of Anne Venkateswara Rao (supra), Raghbir Singh (supra) and Champalal Punjaji Shah (supra) 13. The facts on which the decision was rendered in Najakat Alia Mubarak Ali's case are distinguishable from the facts of this case. In the said case, the convict was undergoing imprisonment in two cases in which he had been convicted and he claimed that he was entitled to set-off in respect of both the cases. This Court drawing inspiration from Section 427 on the concurrent running of sentences, held that the petitioner was entitled to set- off in both cases in view of the doctrine of merger of sentences when directed to run concurrently in a particular case where conviction is on many counts." https://hcservices.ecourts.gov.in/hcservices/ 12. It is held by the Hon'ble Allahabad High Court in the decision reported in the case of Shabbu Vs. State of U.P. reported in 1982 Crl.L.J. 1757 : (AIR 1982 NOC 255) (Full Bench) as follows:- "....... under S.428 Cr.P.C., the period of detention, as an undertrial, of an accused in a particular case can be set-off only towards the sentence ultimately awarded to him in that very case. Whether or not the detention of a person in one case should also be treated to be his detention for the purposes of any other case, wherein he is wanted, is a Question to be decided upon the facts and circumstances of each case. No set formula can be laid down in that behalf. If the facts and circumstances of a particular case indicate that a person already detained in one case was also subsequently wanted in another case and he was not formally detained in that other case on account of the negligence of the concerned authorities, and for no fault of his, he can. with all justification. claim that his detention in the earlier case should also be deemed to be his detention for the purposes of the 2nd case. In that event, benefit of S.428 Cr.P.C. can be extended to him." The last case is. Lalrinfela v. State (1982 Cri. LJ 1793) (Gau). It was held in that case that if an accused is arrested and detained in two cases, the computation for the period of set-off must be done separately and he shall be entitled to claim set-off in both the cases. We are in respectful agreement with the view taken in that case. 13. This Court in the case of Chinnasamy Vs. State of Tamil Nadu and others reported in 1983 STPL (LE-Crim) 15452 Mad has held as follows:- "13. In the light of the decisions set out above, if we examine the facts of the present case, we find that the petitioner was arrested on 19-04-1982 and subsequently he was charged in three cases for similar offences, viz.. under Ss.457 and 380 I.P.C. The three cases were numbered consecutively as C.C.Nos.506, 507 and 508 of 1982. Convictions in all the three cases were awarded on the same day and the petitioner was sentenced to undergo rigorous imprisonment for six months in each case, the sentences to run concurrently. In such circumstances, it has to be taken that the arrest of the petitioner on 19.04.1982 was in respect of all the three cases and his being remanded to custody is referable to each of the three cases filed against him. Such being the case, it necessarily follows that the petitioner will be https://hcservices.ecourts.gov.in/hcservices/ entitled to claim the benefit of, set-off in each of the three cases. The trial Magistrate was not justified in granting set-off in C.C.No.506 of 1982 alone and in refusing to grant set-off in the other two cases. The petitioner's claim for set-off in the second and third cases satisfies all the requirements of Section 428, Cr.P.C. It is by now well established that an accused can undergo pre-trial detention in more than one case at the same time and likewise there is also no bar to preventive and pre-trial detention as well as preventive and punitive detention running simultaneously. In view of this position, it follows that the benefit of set-off given to the petitioner in the first case cannot be denied to him in the second and third cases as well." 14. A Division Bench of this Hon'ble High Court in the case of Daulath Vs. State of Tamil Nadu, rep. by its Secretary to Government, Home (Prison) Department and others reported in 2010 (1) MWN (Cr.) 93 (DB) has held as follows:- "13. Considering the true effect of expression "same case" appearing in Section 428 Cr.P.C., in State of Maharashtra and another v. Najakat Alia Mubarak Ali, 2001 SCC (Cri) 1106, the Supreme Court has held as under:- "15. The purpose is therefore clear that the convicted person is given the right to reckon the period of his sentence of imprisonment from the date he was in jail as an under-trial prisoner. In other words, the period of his being in jail as an under-trial prisoner would be added as a part of the period of imprisonment to which he is sentenced. We may now decipher the two requisites postulated in Section 428 of the Code: 1. During the stage of investigation, enquiry or trial of a particular case the prisoner should have been in jail at least for a certain period. 2. He should have been sentenced to a term of imprisonment in that case. 16. If the above two conditions are satisfied then the operative part of the provision comes into play i.e. if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of investigation, enquiry or trial, the convicted https://hcservices.ecourts.gov.in/hcservices/ person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words "if any" in the section amplify that if there is no balance period left after such deduction the convict will be entitled to be set free from jail, unless he is required in any other case. In other words, if the convict was in prison, for whatever reason, during the stages of investigation, enquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him should be counted as part of the sentence imposed on him. 17. In the above context, it is apposite to point out that very often if happens, when an accused is convicted in one case under different counts of offences and sentenced to different terms of imprisonment under each such count, all such sentences are directed to run concurrently. The idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact and in effect be imprisonment for other counts as well. 18. Reading Section 428 of the Code in the above perspective, the words "of the same case" are not to be understood as suggesting 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. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words "of the same case" were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words." 14. Earlier in Raghbir Singh v. State of Hariyana, 1984 (4) SCC 348 : 1984 SCC (Cri) 616, the Supreme Court has held as under:- "In such a case the period of detention is really a part of the period of imprisonment which he is https://hcservices.ecourts.gov.in/hcservices/ 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" 15. 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 of the cases but not in both. However, in Najakat Alia Mubarak Ali's case, it has been 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 suggesting 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. 16. Following Najakat Alia Mubarak Ali's case, the Division Bench of this Court in Kora Karuppan @ Chinnathambi v. Superintendent of Prisons, CDJ 2003 MHC 070, has held that accused can suffer incarceration of more than one sentence at one and the same time and that it is not necessary that the period of incarceration should be calculated separately or should be so calculated as regards only the first offence and not against the following offences. 17. The ratio of the decision in Najakat Alia Mubarak Ali's case squarely applies to the case on hand. In the instant case while undergoing the substantive sentence in one group of cases, the convict was produced under Prisoner's Transit Warrant in other group of cases and he was treated as remand prisoner in the next group of cases. Though, Petitioner's son was suffering incarceration in connection with other cases as under trial prisoner, he was also in remand in other group of cases. We find no force in the contention of the learned Additional Public Prosecutor that while the https://hcservices.ecourts.gov.in/hcservices/ prisoner is undergoing substantive sentence in one case, he cannot be treated as remand prisoner in another case to invoke the benefit of Sec.428 Cr.P.C." 15. Applying the principles laid down in the above case, this Court is of the considered view that though the appellant was confined in prison at Pune as under-trial prisoner in respect of another case, he being not arrested in this particular case and being not remanded pending investigation no benefit can be given to him under Section 428 of Cr.P.C. But after filing the final report, the accused was produced on the basis of P.T. Warrant issued by the trial Court on 23.01.2006. From that date on wards, he was periodically produced from the prison during the pendency of the trial till the date of judgment. The accused being produced before the Court from the prison on the basis of the P.T. Warrant issued as final report was filed against him, the trial Court ought to have remanded him to judicial custody in this case. But the Special Court had failed to do so and to specifically mention on record that the appellant was remanded to judicial custody in this case. The accused being confined in jail through out the trial period and being produced before the trial Court periodically, merely because he was not brought as an under-trial prisoner on record for his no fault, he should not be made to suffer. Though it was not specifically mentioned in the Court record that the appellant was the remand prisoner during the relevant period from 23.01.2006 till the date of judgment by the trial Court, it should be deemed that the appellant/fourth accused was only under-trial prisoner in the present case. Therefore, the appellant must be given the benefit of Section 428 Cr.P.C. to set off the period of detention only from 23.01.2006. The jail authorities are directed to grant set off to the appellant/A.4 from the period 23.01.2006 to 30.01.2008. 16. In the result, this Criminal Appeal is partly allowed and the conviction and sentence imposed on the