1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Application 608 of 2009 Vijay H. Mangela ....Applicant v/s. State of Maharashtra ....Respondents None for the applicant. Ms. S.V.Gajare, APP for the State. CORAM:- A.M.KHANWILKAR, J DATED:- November 09, 2009. P.C. Heard Counsel for the State. 2. This application is filed by the accused through Jail. The limited question raised in this application is to issue appropriate order so as to give set off to the applicant under Section 428 of the Criminal Procedure Code. The State has filed affidavit of Suresh Chintaman Manore, the Police Sub-Inspector attached to Virar Police station dated 9/11/2009. It is not in dispute that the applicant is convicted in connection with CR No. I-38/2006 under Section 302 read with 34 of Indian Penal Code by the Additional Sessions Judge, Vasai dated 26/6/2008. The 2 Judgment, however, makes no reference to the relevant facts to consider the relief of set off claimed by the applicant. These facts have now been stated in the affidavit of the Police Inspector filed before this Court. It is noticed that applicant was arrested on 11/2/2006 and came to be convicted for stated offence on 26/6/2008. Further, although the affidavit filed before this Court does not record the fact that the accused never availed of bail, PSI who has filed the affidavit is present in Court. He states that from his record it is noticed that applicant was never released on bail during the trial after his arrest on 11/2/2006. In this view of the matter, the applicant would be entitled for relief as claimed. The Court below has glossed over this crucial aspect of the matter while pronouncing the impugned Judgment. 3. In the circumstances, the Application succeeds. It is ordered that the applicant would be entitled for set off under Section 428 of the Code for the period for which he was in custody as under trial prisoner (from 11/2/2006) till the date of the impugned Judgment (i.e. 26/6/2008) convicting him for the stated offence. Application disposed off on the above terms. 4. Office to take note of the fact that the amicus curiae appointed by the office did not appear to espouse the cause of applicant though expected to do so. 3 5. Copy of this order be forwarded to the Applicant who is in jail. (A.M.KHANWILKAR, J)