GOVT. OF ANDHRA PRADESH & ANR. ETC. v.

ANNE VENKATESWARE ETC. ETC.

February 17, 1977

[P. N. BHAGWATI AND A. C. GUPTA, JJ.]

Code of Criminal Procedure, 1973, ss. 428 & 418-S. 428 whether equates undertrial detention or remand detention with 11nvrisonn11Jn.t on conviction for re111ission purposes.-Whether allows period of preventive detention to. be set off against tern1 of imprisonment on conviction-S. 418 whether 111cludes serl'ice of warrant on accused alrea<tv in detention.

The cross appeals arose from two writ petitions filed by A. V. Rao and N. V. Krishnaiahin the High Court.

A. V. Rao's case \vas that while he was already in oreventive detention. on December 18. 1969. a First Information Report was lodged against him in connection with so1nc Sessions cases. Some of the coaccused in these cases were produced before the Magistrate on December 19, 1969 for remand, but Rao was produced before him only in mid-April, 1970 after his release from preventive detention. The accused in the Sessions cases were thereafter convicted and sentenced, and Rao filed a writ petition asking for an order on the State (i-overnmcnt to set off u/s 428 Cr.P.C. 1973, the time between December 19, 1969 and April 13, 1970, against his term of imprisonment, treating the said period a~ the period of detention undergone by him as an undertrial prisoner, and also to take the same into

accotmt, for the purpose of remission of his sentence under the Prisons Act.

Rao contended that he could have been produced before the Magistrate for remand on December 19, 1969. The State Government contended that Rao

could not be prcxluced before the Magistrate for remand until the period of pre ventive detention was over.

In the case of Krishnaiah, he was in detention under the MISA, when his appeal against conviction in a criminal case was dismissed by the High Court, and a warrant was issued against him on December 1, 1975, but was served on him only on December 30, 1975, when the order against him under the MISA was revoked.

The High Court rejected the petitioners' contention regarding set off under section 428 Cr.P.C. but accepted their contention regarding the benefit of remission.

Allowing the appeals by the State, and partly allowing the appeals by the original writ petitioners, the Court, HELD: (1) Section 428 of the Cr. P.C., 1973 only provides that the period of detention of an accused as undertrial prisoner shall be set off against the term of imprisonment imposed on him on conviction. It does not equate an ''undertrial detention or remand detention with imprisonment on convicti'on" or do away with the difference in the two kinds of detention and put them on the .same footing for all purposes.

[11 B-C] G. V. Godse v. State of Maharashra, [1961] 3 SCR 440; 446, referred to.

(2) S. 428 expressly says that the "period of detention" mentioned refers to the detentio~ .durin¥ the investigation, enquiry or trial in connectin with the. same .case tn wp1ch ~e accused prson has been convicted.

The period dunng which the writ petitioners were in preventive detention cnn11ri-t br> set off under section 428 against the term of imprisonment imposed on them [llG

12-A-EJ . '

(3) SectiOf! 418 does not exclude a case \Vhere the \varra, nt concerns an

accue.d wo 1s. already in detention.

We have not been referred to anv prov1s1on etthcr 1n the Cr. P.~. or in the MTSA which requires the service 0f the Wa!fant to be delayed unttl. after the pr!od of preventive detention is over.

H There 1s no bar to the preventive and punitive detention continuing simultaneously. [13A-B, CJ

2~240SCI/77

Harad!zan Saha & Anr. v. State of West Bengal & Ors. [1975] 1 SCH .. 778, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 418-419 and 484-485/76.

(From the Judgment and Order dated 6-7-1976 of the Andhra Pradesh High Court in Writ Petition Nos. 1865, 1870 of 1976 respectively.)

P. Parn:eswara Rao, G. Narayana Rao and A. K. Ganguli, for the appellants m Cr!. Appeals Nos. 418-419/76 and respondents in Crl.

Appeals Nos. 484-485/76.

R. K. Jain, for the appellant in Cr!. A. No. 484/76 and respondent in Cr!. A. No. 418/76.

S. L.aks!111; inarasu, for the appellant in Cr!. A. Ne. 485/76 and for respondent in Cr!. A. No. 419/76.

The Judgment of the Court was delivered by

GUPTA, J.-These are a group of four appeals from a common Judgment of the Andhra Pradesh High Court partly allO\ving two writ petitions, writ petition No. 1865 of 1976 filed by A. V. Rao, and writ petition No. 1870 of 1976 made by N. V. Krishnaiah.

The High Court rejected the petitioners' prayer for setting off under section 428 of the Code of Criminal Procedure, 1973 the periods during whk:h they \\"ere in preventive detention against the tcrn1 of ilnprisonn1ent imposed on thein on their conviction in a sessions trial, but accepted their contention that they were entitled to the benefit of the remission system under the Prisons Act, 1894 for the period during which they were in jail as undertrial prisoners before their conviction : Criminal Appeals Nos. 418 and 419 of 1976 by State of Andhra Pradesh are di, rected against the part of the High Court's Judgment granting the writ petitioners the benefit of the remission system under the Prisons Act treating for this purpose the period of undertrial detention on the same footing as a term of imprisonment on conviction.

Appeal No. 418 arises out of writ petition No. 1865 of 1976 filed by A. V. Rao and Appeal No. 419 is from writ petition No. 1870 of 1976 made by N. V. Krishnaiah.

The writ petitioners have also filed appeals against the part of the Judgment disallowing their prayer for set off under section 428 of the Code of Criminal Procedure.

Criminal Appeals Nos. 484 and 485 of 1976 are by A. V. Rao and N. V. Krishnaiah respectively.

All the four appeals are on certJficate G of fitness granted by the High Court.

The relevant facts are as follows.

A. V. Rao, appellant in appeal 484 of 1976 and respondent in appeal 418 of 1976, was in detention under the Preventive Detention Act when on December 18, 1969 a first information report was filed naming him among others as an accused in a case involving H offences under section 121A and 120B read with section 395, and section 120B read with section 44 7 of the Indian Penal Code, which gave rise to sessions cases Nos. 106 of 1970 and 6 of 1_971 on the file of the Additional Sessions Judge, Hyderabad. The detention order under

; the preventive detention law was revoked by the State Government A •On April 11, 1970 and Rao was released on the next day, April 12.

He was then produced before the magistrate in connection with the sessions cases on April 13, 1970; there is some doubt about this date .because the record at some plru:es mentions !he date as April 18, but •lhe discrepency is not of any significance on the questions arising for .decision in these appeals.

On April 10, 1972 Rao was convicted .along with .others and sentenced to various terms of imprisonment for B the offences charged against him; the maximum sentence was rigorousimprisonment for four years. . The sentences were directed to run .concurrently. His appeal against the order of conviction was dismissed by the High Court on November 28, 1975.

He filed writ petition 1865 of 1976 asking for an order on the Government of Andhra Pradesh to set off under section 428 of the Code of Criminal Procedure, 1973 the time between December 19, 1969 and April 13, C l 970 against his term of imprisonment treating the said period as the period of detention undergone by him as undertrial prisoner, and to take into account the entire 'period during which he was in detention

for the purpose of remission of his sentence under the Prisons Act.

The petitioner further claimed that had he been free at the time when the F.I.R. was lodged on December 18, 1969, he would have surrendered inunediately and would have been produced before he D <Court for remand on the next day as some of the co-accused in the case had been it was submitted that if the "concerned authority" who could but did not "take immediate and necessary steps to produce the petitioner" before the magistrate, the petitioner should not be made to suffer.

The facts of N. V. Krishnaiah's case am similar. Krishnaiah, E appe\lant in appeal No. 485 and respondent in appeal No. 419, was also an accused in the sessions cases l 06 of 1970 and 6 of 1971 with A. V. Rao and othero.

He however was not in detention when the F. I. R. was lodged.

He was arrested in connection with the sessions cases on December 19, 1969 and was in detention on remand from December 21, 1969 to April 9, 1972.

He was also convicted by the Additional Sessions Judge on April 10, 1972 and the maximum F sentence in his case too was rigorous imprisonment for four years.

He also preferred an appeal to the High Court against the order of conviction.

The High Court granted him bail and he was released on bail on April 29, 1972., He was arrested under the Maintenance of Internal Security Act, 1971 on June 26 197 5.

The High Court dismissed the appeal on November 28, 197'.s.

A warrant of arrest issued by the Additional Sessions Judge on December l 1975 was G served on him on December 30, 1975, on which date the detention order under the Maintenance of Internal Security Act wais also revoked.

On these Krishnaiah in •his writ petition sought an order on the State of Andhra Pradesh to treat the "period from June 26, 1975 to November 28, 1975 as remand period" and to set off under section 428 of the Coe of Crim!nal Proedure this period during which ]1e was under .Prevenlive etnlio!1, agamst '.he term of imprisonment H llllposed on him on conv1ction m the sessions cases. It was also contended that the; warrant issued by the Additional Sessions Judge <lll December 1, 1975 should have been served on him immediately,

that it was no fault of his that "the concerned authority" .chose to. serve the warrant on December 30, 1975, and that during this peliod of one month he should be deemed to have been serving the sentence imposed on him.

A further prayer was made that the entire period during which he was under detention be taken into account for remission of his sentence nnder the Prisons Act, The question for consideration in appeals 418 and 419 of 1976 preferred by the State of Andhra Pradesn 1s, whether the period of detention nndergone by the two writ petitioners in connection with the sessions cases before their conviction could be treated as a part of the period of imprisonment on conviction so as to entitle them to remission of their sentences under the Prisons Act.

The Prisons Act, as its preamble shows, is an Act to "amend the law relating to prisons" and to "provide rnles for the regulation of such prisons".

Section 3(5) of the Act defines "remission system" as the "rules for the time being in force regulating the award of marks to, and the consequent shortening of sentences of, prisoners in jail". Section 59 of the Prisons Act provides that the State Government may make rules consistent with the Act in respect of the various matters specified in clauses (1) to (28) of the section; under clause (5) of section 59 the State Government is authorised to make rules "for the award of marks and the shortening of sentences". In their writ petitions both the petitioners speak of remission under the "prison rules" without specifying any rule nnder which relief is sought.

The High Court viewed the question in this way : Sec. 428 Cr!. P. C. clearly ordains that the remand detention shall be set off against the term of imprisonment imposed on the accused person on conviction. The section further clarifies that 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.

In other words, the statute equates the nnder trial detention or remand detention with imprisonment on conviction.

The provision, in so many words, treats the remand detention as part of the period of imprisonment after conviction. If remission.s are given for imprisonment after conviction, there is no plausible or understandable reason why it should be denied to the remand period when the statute equates both of them." The High Court accordingly held that all the remissions that are available or permissible to the two petitioners in regard to imprisonment on conviction are available to them even in respect of the remand period and directed the authorities "to work out these remission and give the benefit to the petitioners".

We do not consider the view taken by the High Court on 1his point cs correct.

Section 428 of the Code of Criminal Procedure, 1973 is in these terms :

Period of detention undergone by the accused to be set off against the sentence of imprisonment.

"428. Where an accused person has, on conviction, been sentenced to imprisonment for a term, 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 hirtl 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 im_posed on him."

:Section 428 provides that the period of detention of an accused as an nndertrial prisoner shall be set off against the term of imprisonment imposed on him on conviction.

The section only provides for a "set -0ff", it does not equate an "undertria! detention or remand detention with imprisonment on conviction".

The provision as to set off expresses a legislative policy, this does not mean that it does away with the difference in the two kinds of detention and puts them on the .same footing for all purposes.

The basis of the High Court's decision does not, therefore, seem to be right.

Apart from that, the Prisons Act does not cofer any right upon the prisoner to claim remission.

It was pointed out in G. V. Godse

v. State of Maharashtra(') that " .... the Prisons Act does not confor on any authority a power to commute or remit sentences, it pro- -vides only for the regulation of prisons and for the treatment of prisoners confined therein.

Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia., for rewards for good conduct.

Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act." It was explained that the rules under the Prisons Act do not substitute a lesser sentence for a sentence awarded by the court. The rules enable a prisoner to earn remissions but, as held in G. V. Godse's case, the question of remission is exclusively within the province of the appropriate Government. If the Government decides to remit the punishment to which a person has been sentenced, the remission may be worked out according to the rules framed under the Prisons Act.

This being the position, appeals 418 and 419 of 1976 must succeed.

The remaining two appeals, 484 and 485 of 1976, preferred respectively by Rao and Krishnaah, may now be taken up for consideration.

The claim in both these appeals is that the period of detention undergone by each appellant under the preventive detention Jaw should be set off under section 428 of the Code Criminal Procedure against the term of imprisonment imposed on them on their convi'Ction in the aforesaid sessions cases. The argnment is that the expression "period of detention" in section 428 includes detention under the Preventive Detention Act or the Maintenance of Internal Security Act. It is true that the section speaks of the "period of , detention'' undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has been convicted.

The section makes it clear that the period of detention which it allows to be set off against-the term of imprisonment

(1) \1961] 3 S.C.R. 440, 446.

G •

SUPREME COUR"E REPORTS:

[1977] 3 S.C.R ..

A imposed on the accused on conviction must be: during the investigation, enquiry or trial in connection with. the "same case" in which he has been convicted. We therefore agree with. the High Court that the period during which the writ petitioners were. "in preventive detention cannot be set_ off under section 428 against the term of imprisonment imposed on them.

There is however substance in the other point raised by the writ petitioners regarding the computation of the period during which the writ petitioner in each case should be held to have suffered imprisonment on conviction.

In A. V. Rao's case (W.P. 1865/76), he was. already in detention under the Preventive Detention Act when the First Information Report was lodged on December 18, 1969 in connection with the sessions cases.

Some of the co-accused ;•n these cases were arrested and produced before the magistrate for remand on December 19, 1969, but Rao was produced before the magistrate sometime in April, 1970 after he was released from preventive detention. n was argued that he also could have been produced before the magistrate for remand on December 19, 197U.

On behalf of the respondent, State of Andhra Pradesh, it was contended tfiat as Rao was already in detention under the Preventive Detention Act, it was not possible to produce him before the magistrate for remand until the period of preventiveJ detention was over; we do not find any justification in law for the position taken up by the !State.

Rao being already in custody, the authorities could have easily produced him• before the magistrate when the flrst Tnformatfon Report was lodged.

Nothing has been pointed out to ns either fn the preventive detention law or the Code of Criminal Procedure which can be said to be a bar to snch a course.

That being so we think that the claim that the entire period from December 19, 1969, when many of (he co-accused were produced before the magistrate to Aprif 18; 1970 should be treated as part of the period during which Rao was under detention" as an under trial prisoner, must be :accepted as valid.

A. V. Rao's Appeal No. 484 of 1976 is allowed to this extent.

In the case of N. V. Krishnaiah, the Additional Sessions Jiidge, Hyderabad, issued a warrant on December 1, 1975 after his appear against conviction was dismissed by the High Court on November 28, 1975.

The: warrant, however, was served on him only on December 30, 1975 on which date the order under maintenance of Internal' Security Act was revoked.

It is claimed that the warrant could' have been served immediately on that dismissal of the appeal on November 28, 1975 ancl the accused was not responsible if the authority concerned chose to serve the warrant on him Off December 30, 1975.

In this case also, the argument on behalf of the State of Andhra Pradesh is that it was not possible to forward Krislmaiah to jail consequent on his conviction in the session cases until the period of his detention under the Maintenance of Internal' Security Act was over. We do not see why that should be so. Section 418 requires the court passing the sentence to forthwith forward a warrant to the jail or other place in which he (accused) is, or is to be, con-· fined, and, unless the , accused is already confined in such jail or other

place, shall forward h:•m to such jail or other place, with the warrant".

Section 418 thus does not exclude a case where the warrant concerns an accused who is already in detentionc On behalf of the State it was sought to be argued that if the warrant wa~ served on Krishnaiah immediately after his conviction was upheld by the High Court in appeal, the position would have been anomalous, because then he would have been in detention both under the preventive detention law and as a convicted accused in a criminal case. We have not been referred to any provision either in the Code of Criminal Procedure or in the Maintenance of Internal Security Act which requires the service of the warrant to be delayed until after the period of preventive detention is over.

As regards the alleged anomaly of ru man having to suffer two kinds of detention at the same time, one preventive and the other pnnitive, we do not find this to be a valid objection.

The position is not different from the case where a man is sentenced , on different counts to a term of rigorous imprisonment and another term of simple imprisonment, and the sentences are directed to run concurrently.

Counsel for the State referred us to the decision in Haradhan Saha and another v. The State of West Bengal & others,(') in support of his contentil'.m.

In our opinion this case does not help him at all.

What was held in this case was, inter alia that the nature of preventive detention is entirely different from punitive detention, and there is no bar to a man being detained under the preventive detention Jaw when a criminal proceeding for the offences on which the preventive detention is based is pending.

If that be so, there can be no bar to the preventive and punitve detentions continuing simultaneously. We therefore allow appeal No. 485 of 1976 to the extent tbat Krishnaiah should be taken to have serving the sentence imposed on hi~ from December 1, 1975.

In the result the criminal appeals Nos. 418 and 419 of 1976 5y the State of Andhra Pradesh are allowed, and the appeals Nos. 484 ; md 485 of 1976 preferred respectively by A. V. Rao and N. V.

Krishnaiah are allowed to the extent indicated aove.

M. R.

A]'Jpeals allowed.

(I) [1975] I S.C.R. 778.