[2009] 15 (ADDL.) S.C.R. 1105

ATUL MANUBHAI PAREKH A

-~ v.

CENTRAL BUREAU OF INVESTIGATION

(Criminal M.P. No. 13384 of 2009)

IN (Criminal Appeal No. 164 of 2004) B

NOVEMBER 24, 2009

[ALTAMAS KABIR AND CYRIAC JOSPEH, JJ.]

Code of Criminal Procedure, 1973 - s. 428 - Benefit of set-off - For the period of detention or imprisonment, c undergone by the accused in another case - Held: Period to be set-off relates only to pre-conviction detention, and not to imprisonment on conviction - In case of s. 428, question of

,. merger does not arise - Period of set-off is in respect of each ' separate case.

.i The question for consideration in the present cases

~ was whether a person, who has been convicted in several .. cases and has suffered detention or imprisonment in ~

connection therewith, would be entitled to the benefit of set-off in a separate case for the period of detention or E' imprisonment undergone by him in the other cases.

Dismissing the applications, the Court

HELD: 1. The heading of Section 428 Cr.P.C. itself indicates that the period of detention undergone by the I accused is to be set-off against the sentence of F 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 G conviction detention and not to imprisonment on conviction. [Para 9] [1110-G-H; 1111-A]

2. Section 428 Cr.P.C. deals with a situation, where the question of merger of sentence does not arise and the

1105 H

A 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. [Para 10] (1111-D]

Champa/al Punjaji Shah vs. State of Maharashtra (1982) 1 SCC 507; Raghbir Singh v. State of Haryana (1984) 4 SCC B 348; Government of A.P. vs. Anne Venkateswara Rao (1977) 3 SCC 298; Maliyakkal Abdul Azeez vs. Asstt. Collector, Kera/a and Anr. (2003) 2 SCC 439, relied on.

State of Maharashtra and Anr. vs. Najakat Alia Mubarak Ali (2001) 6 SCC 311, distinguished. 1 c Case Law Reference :

(1982) 1 sec so1 Relied on.

Para 6

(1984) 4 sec 348 Relied on.

Para 8

(1977) 3 sec 298 Relied on.

Para 10

(2003) 2 sec 439 Relied on.

Para 11 ' '

(2001) 6 SCC.311 Distinguished.

Para 13

CRIMINAL APPELLATE JURISDICTION : CRLMP No.

'-..

13384 of 2009 in Criminal Appeal No. 164 of 2004.

E From the Judgment & Order dated 04.12.2003 of the Special Court constituted under the Special Court (Trial of Offences Relating to Transaction in Securities) Act, 1992 at Bombay in Case No. 2 of 1993.

WITH

F CRLMP. No. 13382 of 2009 in Crl. A No. 905 of 2005;

CRLMP. No. 13381 of 2009 in Crl. A No. 925 of 2005; and '

CRLMP. No. 17357 of 2009 in Crl. A No. 90 of 2004.

P.P. Malhotra, ASG, Kamini Jaiswal, I. H. Syed, Varinder .. , Kumar Sharma, Abhimanue Shrestha, P. Parmeswaran, Mohan G Parasaran, P.K. Dey, AK. Sharan, T.A Khan, Subhash Kaushik, R.K. Tanwal, AK. Sharma, for the appearing parties.

The Judgment of the Court was delivered by

ALTAMAS KABIR, J. 1. Crl. M.P. No.13384 of 2009 has

H been filed in Criminal Appeal No.164 of 2004, which was

\ .,

disposed of by this Court by judgment and order dated 7th A August, 2009, upholding the conviction of the appellant under Section 120-B and sentencing him to undergo rigorous imprisonment for a period of 15 days and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for a further period of 15 days. By the same order, the appellant was also granted the benefit of set-off for the period of detention he had already undergone under Section 428 Cr.P.C. This application has been filed on behalf of the appellant, Atul Manubhai Parekh, for a direction that he be entitled to set-off of

30 days in the present case against the detention of 15 days already undergone by him.

2. The short point involved in this application is whether a person, who has been convicted in several cases and has suffered detention or imprisonment in connection therewith, would be entitled to the benefit of set-off in a separate case for

the period of detention or imprisonment undergone by him in the D other cases.

3. Ms. Kamini Jaiswal, learned Advocate appearing for the appellant, submitted that the right of a convict to be allowed setoff in one case in respect of detention or imprisonment undergone by him in other cases, fell for the consideration of this Court in State of Maharashtra & Anr. vs. Najakat Alia Mubarak Ali [(2001) 6 SCC 311], wherein three Judges of this Court had occasion to consider the provisions of Section 428 Cr.P.C., and it was the majority view that the period of imprisonment undergone by an accused as an undertrial during investigation, enquiry or trial of a particular case, irrespective of whether it was in connection with that very case or other cases, could be setoff against the sentence of imprisonment imposed on conviction

in that particular case. Their Lordships held that the words "same case" used in Section 428 do not suggest that set-off would be available only if the period undergone as an undertrial prisoner G is in connection with the same case in which he was later convicted and sentenced to a term of imprisonment. According to Their Lordships, the said expression merely denoted the presentence period of detention undergone by an a<; cused and nothing more.

\ A

4. Ms. Jaiswal also referred to the Three-Judge Bench ~

decision of this Court in State of Punjab vs. Madan Lal [(2009)

_/..._-< '

5 SCC 238], where also the provisions of Section 428 of the Code fell for consideration and the decision in Najakat Alia's case was noticed with approval. While deciding the matter, the

8 Hon'ble Judges had occasion to cdnsider the objects and I reasons for introducing Section 428 into the Code of Criminal

Procedure, 1973 by amendment. The Hon'ble Judges extracted .f a portion of the objects and reasons, wherein it was stated that ' in many cases the accused person is made to suffer jail life for "" )._ a period out of all proportion to the gravity of the offence or even '. c to the punishment provided in the statute. Their Lordships emphasized that the new clause provides for the setting off of

"-= the period of detention as an undertrial prisoner against the ' sentence of imprisonment imposed on him. Their Lordships j interpreted the same to mean that the purpose of introduction of

D Section 428 into the Code was to give the convicted person the right to reckon the period of his sentence of imprisonment from the date he was in jail as an undertrial prisoner and that the period " of his being in jail as an undertrial prisoner would be added as a

~- part of the period of imprisonment to which he was sentenced.

5. Ms. Jaiswal, .therefore, submitted that in the light of the aforesaid decisions the petitioner was entitled to set off of all periods of detention unconnected with the case in which he has 'r been convicted and sentenced. It was urged that the High Court )

had erred in rejecting the petitioner's prayer for grant of set-off _,.,,.. against periods of imprisonment already undergone by him in F connection with other cases. -

6. Ms. Jaiswal's submissions were opposed on behalf of the Central Bureau of Investigation by the learned Additional Solicitor General who contended that the question involved in these appeals had fallen for consideration before this Court G earlier, also by a Three-Judge Bench in Champa/al Punjaji Shah '~ vs. State of Maharashtra [(1982) 1 SCC 507], where this Court l was called up<; m to decide as to whether the period of detention ,,. 'under the Preventive Detention Act could be set-off under Section 428 of the Code. In the said context. this Court held that

H the period of detention under preventive detention laws could not ·~ , \

be counted forthe purposes of Section 428 Cr.P.C. It was further A

~· contended that the question of applicability of Section 428 in respect of a period which had lapsed in an earlier case, could not be set-off against the term of imprisonment imposed in the latter case. It was held that in order to secure the benefit of Section 428 of the Code, the prisQner has to show that he had B been detained in prison for the purpose of investigation, enquiry or trial of the case for which he is later on convicted and sentenced, but he cannot claim a double benefit under Section

~ 428, 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 c for committing the latter offence as well. Their Lordships further held that if a person is undergoing a sentence of imprisonment on being convicted of an offence in one case during the period of investigation, enquiry or trial of some other case, he cannot claim that the period occupied by such investigation, enquiry or D. f trial should be set-off against the sentence of imprisonment to ,,,

be imposed in the latter case, even though he was under detention duringsuch period. In such a case, the period of detention is really a part of the period of imprisonment which he is undergoing on being sentenced for another offence. It was E submitted that the subsequent judgments of the Three-Judge Benches of this Court reveals that there were misgivings regarding the law sought to be explained in.the said cases. It was

-,/ submitted that the High Court did not commit any error in

1 sentencing the appellant to undergo rigorous imprisonment for a period of 15 days under Section 120-B of the Indian Penal F Code and to also pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for a further period of 15 days.

7. We have carefully considered the submissions made on behalf of both the parties, having particular regard to the two views expressed as to whether the period of detention undergone G by an accused in some other case could be the subject matter of an order of set-off in connection with a different case. At this juncture, it may be relevant to reproduce the provision of Section 428 Cr.P.C. :

"428. Period of detention undergone by the accused to be H , __

A set off against the sentence of imprisonment.- Where an accused person has, on conviction, been sentenced to .i-::

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

~· B 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 .. emainder, if any, of the term of imprisonment imposed on

~ 1 him. c Provided that in cases referred to in Section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section."

8. From the wording of Section 428 it is clear that what is to

D be set-off is the period of detention, if any, undergone by the

convicMuring the investigation, enquiry or trial of the same case ') and before the date of such conviction. What has fallen for the

.,,. l

interpretation of the courts is the expression "the same case".

While in one set of judgments it has been held that periods of detention undergone in connection with other cases can be E counted towards set-off under Section 428 Cr.P.C. in respeci of the conviction in another case, in the other set of cases it has been held that it cannot. However, even in Najakat Alia's case, one of the three Hon'ble Judges took a dissenting view that setoff under Section 428 of the Code would have to be in respect ; v-

F of the detention undergone in respect of the same case. It is the " • said view Which had earlier been accepted in Raghbir Sing'1 v.

State of Haryana [(1984) 4 SCC 348] and in the case of Champa/al Punjaji Shah's case (supra).

;..-,

9. The wording of Section 428 is, ir. our view, clear and '

G unambiguous. The beading 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 if clear that the period of sentnce on conviction is to be reduced, .,,-: r by the extent of detention already undergone by the convict during

investigation, enquiry or trial of the same case. It is quite clear H

I '-,..., i that the period to be set off relates only to pre conviction detention A 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 B subsequent conviction where the period of 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 c made in the several decisions cited before us to Section 427 Cr.P.C. appears to be a little out of focus since the sar:ne 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 D >' 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. vs. Anne Venkateswara Rao (1977) 3 SCC 298, in the E following terms :

"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 F Abdul Azeez vs. Asstt. Collector, Kera/a & Anr. [(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 G Activities Act, 1974. While deciding the said case, the Hon'ble '

Judges observed that Section 428 Cr.P.C. had been brought on the statute 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 H

A prisoners and in some cases the period spent in jail by undertrial

,1~ 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 ..

B 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 t c (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), Raghubir Singh (supra) and Champa/a/ 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

'I"" y 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 E 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 co.ncurrently in a particular case where conviction is on many counts.

14. The application filed by Atul Manubhai Parekh, being x-' + F Criminal Misc. Petition No.13384 of 2009, in the disposed of

Criminal Appeal No.164 of 2004, and the connectAd applications being Criminal Misc. Petition No.13382 of 2009 in Criminal Appeal No.905 of 2005, Crim:nal Misc. etition No.13381 of 2009 in Criminal Appeal No.925 of 2005 and

G Criminal Misc. Peti!_ion No.17357 of 2009 in Criminal Appeal

No.90 of 2004, are, accordingly, dismissed.

K.K.T.

Applications dismissed. ~·