Kumar vs State of Tamil Nadu

P.N. Prakash, J.—In all these cases, the prisoners are life convicts and they are crying their eyes out from roof top for giving them set off under Section 428 of the Code of Criminal Procedure (hereinafter called as "Cr.P.C."). The issue relating to the entitlement of a life convict to set off the period of detention undergone by him during investigation under Section 428 Cr.P.C., is no more res integra in view of the authoritative pronouncement of the Constitution Bench of the Supreme Court in Bhagirath Vs. Delhi Administration, . We extract paragraph 8 from the said judgment to drive home this point.:--

".......8. To say that a sentence of life imprisonment imposed upon an accused is a sentence for the term of his life does offence neither to grammar nor to the common understanding of the word ''term''. To say otherwise would offend not only against the language of the statute but against the spirit of the law, that is to say the object with which the law was passed. A large number of cases in which the accused suffer long undertrial detentions are cases punishable with imprisonment for life. Usually, those who are liable to be sentenced to imprisonment for life are not enlarged on bail. To deny the benefit of Section 428 to them is to withdraw the application of a benevolent provision from a large majority of cases in which such benefit would be needed and justified."

Thus it is clear that set off under Section 428 Cr.P.C., to a convicted person is not the Court''s charity but law''s guarantee. A bare reading of Section 428 Cr.P.C., itself would reinforce this beyond any pale of doubt.

"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 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:

[Provided that in cases referred to in section 433-A, such period of detention shall be set off against the period of fourteen years referred to in that section.]"

When law is so clear and categorical, how did these prisoners miss out? The answer is not far to seek. Whenever a person is arrested by the police during the course of investigation and remanded to custody by the Magistrate, a Remand Warrant of commitment in Judicial Form No. 59 appended to the General Rules of Practice and Circular Orders 1958 will be made ready with the signature and seal of the remanding Magistrate. This remand warrant is the passport to enter the goal. When a prisoner is admitted to the prison, apart from the Admission Register, there are two other records viz., History ticket and Convict Register that are maintained in the prison under the Tamil Nadu Prison Rules. The Prison Authorities make necessary entries in these records about the admission of the prisoner. When the prisoner is granted bail by the Court, a bail bond in Form No. 45 of the Code will be executed by the sureties to the satisfaction of the Magistrate, who in turn would send the same to the prison along with the release order. On receipt of the bail bond, the jail authorities would obtain the signature of the prisoner in that bond and would release him thereafter, unless not required in any other case. The Prison Authorities will return the bail bond and the Remand Warrant to the Magistrate from whom they received them. On account of this, the Magistrate will know how long the prisoner was in custody. If the case is committed to the court of Sessions, the Magistrate is required to send the bail bond Form No. 45 and the Remand Warrant (Form No. 59) to the Sessions Court along with other records. If the accused is convicted and sentenced to imprisonment by the trial court (be it the Sessions Court or the Magistrate), a Warrant of Commitment in Form No. 34 of the Code or in Judicial Form No. 71 of the Rules of Practice of Sentence to Life Imprisonment should be prepared under the signature and seal of the Presiding Judge and should be sent to the prison along with the convict. It is the normal practice in the State of Tamil Nadu, for the Judicial Officers to calculate the period of detention undergone by the accused during investigation and record the same in the warrant of commitment. The Convicting Court collects these particulars from the remand warrant and the bail bond that was returned by the jail authorities to the Magistrate. Though we are not able to lay our hands on any Rule either in the Code or in the Criminal Rules of Practice, which casts a duty on the Presiding Officer to enter the pre-conviction detention particulars in the warrant of commitment, applying the principle optimus interpres rerum usus [The best interpretation comes from usage], we propose to give legal imprimatur to this practice via this order. In fact Section 476 of the Code permits lawful variations in the Forms.

"476. Forms - Subject to the power conferred by article 227 of the Constitution, the forms set forth in the Second Schedule, with such variations as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient."

In Vinay Tyagi Vs. Irshad Ali @ Deepak and Others, , the Supreme Court has said that "the matter which are understood and implemented as a legal practice and which are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of contemporanea exposito - The practice of judicial officers giving the particulars of the period of detention undergone by the accused in the Warrant of Commitment is indeed a healthy one and it is not opposed to any law. On the contrary, it would only promote the cause of justice. In all these cases, the Judicial Officers had not given the said detention period in the commitment warrant and therefore, the Prison Authorities were not able to give the set off under Section 428 Cr.P.C.

The learned Additional Public Prosecutor relied upon two unreported judgments of this Court wherein, the prayer for set off under Section 428 Cr.P.C., was rejected by this Court. The two judgments are M. Ravi v. State (Crl.O.P.(MD).1095 of 2006 dated 21.03.2006) and R. Suresh v. State (H.C.P. No. 1380 of 2008 dated 22.10.2009).

We perused the two orders and found that this Court had denied the period of set off on the ground that it can be given only when the "appropriate authority either remits the sentence under Section 432 or commuting the sentence under Section 433 of Cr.P.C., and subject to Section 433-A of Cr.P.C".

Per contra, the learned counsel for the petitioners relied upon the judgment of the Supreme Court in Life Convict Laxman Laskar Vs. State of West Bengal and Another, , wherein, the Supreme Court has given the calculation of the period that was undergone by the prisoner, which included the set off under Section 428 Cr.P.C., and was thereafter, granted relief to the petitioner therein. This judgment of the Supreme Court was not taken note of in the above said two judgments of this Court. In Bhagirath Vs. Delhi Administration, , the Supreme Court has stated thus:--

"...17. For these reasons, we allow the appeal and the writ petition and direct that, the period of detention undergone by the two accused before us as undertrial prisoners, shall be set off against the sentence of life imprisonment imposed upon them, subject to the provision contained in Section 433-A and, provided that orders have been passed by the appropriate authority under Section 432 or Section 433 of the Code of Criminal Procedure."

What the Supreme Court has meant in that paragraph is, the prisoner will be entitled to set off, but the benefits of it would be subject to the provisions contained in Section 433-A and provided that orders have been passed by the appropriate authority under Section 432 or Section 433 of the Code of Criminal Procedure. If paragraph 8 and 10 of the Judgment is read with Paragraph 17 extracted above, this position will be clear. In fact the method of calculation of the set off period for a life convict has been discussed in paragraph 10 in Bhagirath''s case.

Whenever the Government decides to GRANT Pre-mature release, the Government will fix a definitive period of detention for extending the benefit and would call for reports from the Superintendent of Jails in the State. For example, in G.O. Ms. No. 1155 dated 11.09.2008, the Government has said that, the G.O. will apply to "life convicts who have completed 7 years of actual imprisonment as on 15.09.2008. "At that time, the jail authorities will identify the prisoners who have undergone the period of detention fixed by the Government for being considered for premature release. If the jail authorities do not have the pre-conviction detention particulars of a prisoner, they will only furnish to the Government the post- conviction detention particulars. The prisoner cannot be made to suffer for the fault of the Presiding Officer of the Court in not giving the pre-conviction detention particulars of a prisoner to the jail authorities. Actus curiae neminem gravabit. [An act of the Court shall prejudice no man]. If the prison authorities do not send correct particulars to the Government, the prisoner will be seriously prejudiced inasmuch as he will be held disqualified for premature release though fully qualified.

We are informed by the learned Principal District and Sessions Judge, Chennai that prisoners are making applications under the Right to Information Act asking the trial courts to furnish the pre-conviction detention particulars of their cases. It is but natural for the prisoners to use the provisions of the RTI Act and ask for these informations. Therefore, relying upon the Constitution Bench judgment of the Supreme Court in Bhagirath Vs. Delhi Administration, and the subsequent judgment of the Supreme Court in Life Convict Laxman Laskar Vs. State of West Bengal and Another, , we have no hesitation in holding that the convict prisoners in these cases will be entitled to set off under Section 428 Cr.P.C. Denying them the benefit of set off will not only violate Section 428 Cr.P.C., but also Article 21 of the Constitution of India.

Now coming to the calculation of the period of set off, we propose to deal with each petition individually.

We have arrived at the individual entitlements stated above based on the information obtained by the convicts under the RTI Act and confirmed by the Investigating Agency and the prison authorities. We direct the prison authorities to give the aforesaid periods of set off under Section 428 Cr.P.C., to each of the petitioners herein as set out above. We also found that some Judges and Magistrates are recording these particulars even in the judgment and we commend them. We have also noticed that in some judgments, there is no reference to set off under Section 428 Cr.P.C., at all and this makes the prison authorities believe that the court has denied them set off. We remind the prison authorities that, even if the judgment is silent on this aspect, yet, the prisoner will be entitled to set off under Section 428 Cr.P.C.

Even if an accused is acquitted by the trial Court, the set off particulars, if any, should be given in the judgment so that the Appellate Court will not be handicapped in appeal against acquittal.

In some cases the accused after release on bail will abscond during Trial and will be re-arrested and remanded to judicial custody. In such cases there will be two spells of judicial custody which should also be mentioned in the judgment and committal warrant.

In Private Complaint cases like prosecution under Section 138 of the Negotiable Instruments Act, the accused will appear on summons and the Court should take a bond from him under Section 88 Cr.P.C. The Honourable Supreme Court in Indian Bank Association and Others Vs. Union of India (UOI) and Another, (A copy of the order has been circulated to all the Judicial Officers on the orders of the Apex Court) has directed the Magistrates to obtain a bond from the accused when he appears. Hereafter, all the Magistrates in the State are required to strictly follow the said direction issued by the Supreme Court. If on the first hearing, if the accused comes unprepared to furnish sureties for the bond, a reasonable time can be given to him to bring the sureties and execute the bond. We further direct that a bond under Section 88 Cr.P.C., should be taken in all cases, both summons and warrant cases, where an accused who has not been arrested and released on bail, appears before the Court on summons. This includes even cases under the Prevention of Corruption Act. If the accused absconds during Trial, he can be arrested in execution of non-bailable warrant and remanded to judicial custody and later released on bail. In such cases also he will be entitled to set off under Section 428 Cr.P.C. Therefore, it is necessary for the trial Court Presiding Officers to mention about all these aspects clearly in the judgment itself.

The Jail Authorities also have a legitimate grievance that they seldom receive a copy of the Judgment along with the warrant of commitment. We do not understand what difficulties the Presiding Officer would have in sending a certified photocopy of the judgment along with the Commitment Warrant. When a person is convicted and sentenced to imprisonment, he is entitled to a free copy of the judgment. While so, if an extra copy is taken and sent to the prison with the Commitment Warrant, it would go a long way to update Prison records and will be beneficial to the Prisoner and the Prison Authorities. Criminal Rules of Practice, Rule 184 (177)(vi) and (vii) read as under:--

"184. (177)- Distribution of Copies of judgments: (1) Court of Sessions shall within eight days from the date of pronouncing Judgment, distribute copies of all their Judgments as follows, a sufficient number of copies being printed for the purpose of each case:--

(vi) Two copies (in respect of each prisoner) to the superintendent of the Jail to which the prisoner is committed when such prisoner is sentenced to imprisonment (one copy for being filed with the warrant of committal or used for the purpose of memoralising to the Government if required, and the other copy for the use of probation officer to enable him to give an accurate report regarding the premature release of the prisoner under Advisory Board Scheme. High Court, Madras, P.Dis.N.265/70

(vii) Two copies (for each prisoner) to the superintendent of the Jail to which a prisoner is committed in case when such prisoner is sentenced to death to prevent delay in the transmission to Government of petitions for mercy." All Judicial Officers in the State are bound to follow this.

It has also come to our notice that when a prisoner is transferred from one prison to another by the prison authorities the particulars relating to his pre-conviction detention are seldom sent to the receiving prison on account which problems arise in calculating the period of set off. The best way to obviate this difficulty is to install Digital Finger Printing Machine in all the 136 Prisons in the State. At present, we are told, only 9 Central Prisons have this facility. If once the Government installs Digital Finger Printing Machine in all the jails, then the record of a prisoner will get digitalised and it will be easy for the Jail Authorities to keep track of every aspect wherever the prisoner is. We are suggesting to the State Government to install this facility in all the Prisons in the State so that even if a prison riot takes place, information will not get totally obliterated for it can be stored in the Office of the Additional Director General of Prison also. We are marking a copy of this order to the Home Secretary, State of Tamil Nadu to do the needful in this regard.

We place on record our sincere appreciation to Ms. S. Sri Devi, Advocate, who has taken up the cause of these Prisoners and has been tenaciously following it, upto its logical conclusion. In the result, these petitions are allowed and the convict prisoner in these cases are directed to be given the period of set off under Section 428 Cr.P.C., as set out in paragraph 10 above.

Before parting, we direct all the trial courts in the State of Tamil Nadu:

"(a) to refer to Section 428 Cr.P.C., and give details of the period in prison already undergone by the accused in that case upto the date of Judgment, be it conviction or acquittal. If he has not undergone any period of detention in that case prior to the judgment, that shall also be mentioned.

(b) to give the particulars relating to the period of pre-conviction detention in the warrant of commitment.

(c) send a copy of the Judgment together with the Warrant of Commitment to the Prison Authorities.

(d) to obtain a Bond under Section 88 Cr.P.C., ''73 from the accused who was not arrested and released on bail, both in summons case and warrant case."