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Judgment
S. Palanivelu, J.—The petitioner is wife of detenu by name Puli @ Prabhu. He was involved in as many as 5 criminal cases in
Cr.No.534/05, 616/05, 664/05, 663/05 and 311/05. First and second cases were registered u/s 454,380 and 461 I.P.C while third and fourth
cases were under sections 454 and 380 I.P.C. Last case, Sl.No.5 was registered u/s 454 r/w 511 I.P.C. First two cases were taken up in CC
Nos. 28 of 2006, 29 of 2006, on the file of the Judicial Magistrate No.l, Gobichettipalayam, third and fourth cases were taken on file in CC Nos.
743 of 2005, 742 of 2005 on the file of the Judicial Magistrate, Trichengode and the last case was taken up in C.C.No.56 of 2006 on the file of
the Judicial Magistrate, Mettur.
In the first four cases the detenu was convicted by the respective Courts. In the first and second case, his terms of imprisonment were two years
rigorous imprisonment apiece and in third and fourth cases, rigorous imprisonment for one year each. In all these cases, he had been continuously
in jail right from 30.11.2005.
The facts that are essential for discussion and disposal of the petition are as follows:
The case in CC.No.56 of 2006 was disposed of by the learned Judicial Magistrate No. 2, Mettur on 12.06.2007 handing down a sentence of
simple imprisonment for two years. While awarding the sentence, the Presiding Officer specifically mentioned in the Judgment that out of simple
imprisonment for two years, the period from 24.04.2006 till 12.06.2007 i.e., the date of sentence, shall be set off u/s 428 Cr. P.C. It is the
contention of the petitioner that though the detenu had already served the sentence as imposed by the Court, still he has not been released from the
prison and he has to be set at liberty.
Mr. M. Krishnamurthy, learned counsel for the petitioner would contend in vehemence that inasmuch as the detenu had been continuously
serving the sentence imposed by various courts and also the one imposed by the Judicial Magistrate No. 2, Mettur, in the fifth case, he should have
been discharged from the prison on 24.04.2008, but his detention has been retained by the prison authorities, which is inadmissible in law.
Repelling the above contentions, Mr. M. Babu Muthu Meeran, learned Additional Public Prosecutor would submit that as per the calculation of
the Prison authorities, taking into account of the periods of sentences the detenu will have to be released from the prison on 07.02.2009 and his
request for earlier release from the jail cannot be entertained. He filed the reply affidavit of first respondent in which it has been calculated that from
24.04.2006 upto 01.02.2007 a period of 284 days has to be set off from the period of sentence. It is not known where from the first respondent
has obtained the date 01.02.2007. The date of sentence is 12.06.2007 but as per the first respondent, beginning of sentence is 16.12.2007,
adding two years with the period. As per the first respondent the date of release of the detenu is 16.12.2009. After set off as per the Judgment, the
date of release will be 07.03.2009, provided the ineligible set off period is between 02.02.2007 and 11.06.2007. The Court is at loss to find out
how the date of beginning of sentence could be fixed as 16.12.2007 and date of release as 07.03.2009. The reply affidavit is silent in this regard.
In the reply affidavit it is further stated as follows:
S. No. l & 2 are to run concurrently, the date of release 16.12.2007
S. No. 3 & 4 are to run concurrently, the date of release 14.10.2007
S. No. 5, the date of release 07.03.2009
It is also mentioned therein that since the above three group of warrants are consecutive sentences one after another, the actual date of release is
07.03.2009. the set off period is restricted to the date of conviction in the first case. Hence the detenu is not able to get double benefit of spending
one particular period as a convict and as an under trial prisoner. It is the essence of the contention that the period directed to be set off by the
Judicial Magistrate No. 2 Mettur pertaining to the period of conviction in the earlier case and that period could not be availed towards set off in the
subsequent case viz., in the fifth case and in case, if the accused is allowed to avail the conviction period in the previous case towards set off, he
would get double benefit.
We are more conscious about the above said contentions. The disturbing feature is that the prosecution had not preferred any appeal as regards
the sentence portion of the Judgment. Neither of the party had preferred any revision or appeal before the appropriate forum. Had the prosecutor,
the Inspector of police, Karumalaikoodal police station in Salem District carried the matter in an appeal or revision, agitating the sentence portion
as contended in the reply affidavit, he might have obtained proper verdict by this time. Having failed to take up the matter before the higher fore, it
is now too late to contend that no set off could be given to the detenu as per the judgment.
We carefully scrutinized the circumstances available in this case. The failure on the part of the prosecutor is a bar for denying the benefit of set
off available to the detenu. In order to have a thorough glimpse of the subject, the scheme of the code with respect to the concept of set off as
incorporated in the statue has to be thoroughly looked into. Before 1973, in the old Code of Criminal Procedure there was no such analogous
provision for setting off the period of sentence. The ideology has been envisaged, Sections 427 and 428 were introduced for the first time in 1973.
It is apposite to note that even though the import of section 427, 428 of Cr. P.C. appear to be distinctive, the judicial pronouncements of the
Supreme court paves way to decide that the intention of the legislature for providing benefit of the accused should reach him in letter and spirit.
In this context, it is advantageous to have extraction of both the provisions for better understanding of the principles laid down by the Apex
Court:
Sentence on offender already sentenced for another offence:- (1) When a person already undergoing a sentence of imprisonment is sentenced
on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration
of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with
such previous sentence, (proviso and Sub-section (2) omitted)
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.
As far as 427 Cr. P.C. is concerned, the second conviction shall be consecutive, which shall begin on the expiry of imprisonment to which the
accused was previously sentenced. The terms added further are ""unless the court directs that the subsequent sentence shall run concurrently with
such previous sentence"".
Proviso to Section 427 and Subsection (2) thereof do not pertain to the issue and they are not being discussed. If the court does not
specifically mention in its Judgment regarding set off, the sentence imposed by it shall run consecutively. Specific direction of the Court is sine-quo-
non for providing set off. If there is specific direction, there could not be no debate.
As far as the case on hand is concerned, even though it has not been specifically pointed out in the sentence portion of the Judgment that the
period of sentence imposed in the previous case shall be taken into consideration for the purpose of setting off for the present case, it is mentioned
that the period from 12.4.2006 shall be set off. In other words, the operative portion of the Judgment viz., the sentence portion does not contain
the existence of previous case nor the particulars of sentence relating to the said case. Still the Judgment cannot be said to be unsustainable for the
reason that the learned Judicial Magistrate has categorically observed that the period from 24.04.2006 till the date of sentence viz., 12.06.2007,
during which period the accused has been in judicial custody ""in this case"" shall be set off. The Judgment goes to the effect that the set off shall be
u/s 428 Cr. P.C. Strictly speaking, it should have been u/s 427. We see no illegality or infirmity in the terms employed in the final verdict of the
learned Judicial Magistrate.
As adverted to supra, if the prosecutor entertained any doubt as to the set off part he should have got it clarified by preferring appeal or
revision. It was not done. Hence the Judgment of the Judicial Magistrate become final. It cannot be reopened by other proceedings. We hasten to
add that Section 427 Cr. P.C. does not contemplate about the number of previous cases but merely says the case in which the accused was
previously sentenced.
Learned counsel for the petitioner would place reliance upon the decision reported in 2001 SCC (Cri.) 1106 [State of Maharashtra and
Another v. Najakat Alia Mubarak Ali] decided by the Larger Bench. The majority view taken in the said decision is as follows:
We have no reason to think that the High Courts mentioned have gone wrong in taking the view that Section 428 of the Code permits the
accused to have the period undergone by him in jail as an under trial prisoner set off against the period of sentence imposed on him irrespective of
whether he was in jail in condition with the same case during the period. We, therefore, respectfully dissent from the view expressed by the two-
judge Bench of this Court in Raghbir Singh v. State of Haryana.
Earlier in Raghbir Singh''s case ( Raghbir Singh Vs. State of Haryana, Their Lordships had held as follows:
In such a case the period of detention is really a part of the period of imprisonment which he is 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 u/s 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.
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 in one of the cases but
not in both.
When the Judgment was quoted in Bombay High Court, the learned Single Judge expressed the view that the accused is entitled to the benefit
of set off in the second case as well he was in the period of custody during the course of the trial. When the matter on appeal came up before the
Honourable Supreme Court, it was found appropriate that the matter be heard by a larger Bench and hence the decision in 2001 SCC (Cri.) 1106
came to be pronounced.
Their Lordships in Najakat Alia Mubarak Ali case (supra) 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 suggested 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.
As mentioned already, the detenu would avail the set off available to him by virtue of the provision u/s 427 of Cr. P.C. While Section 427
holds the affairs of the circumstances as to the sentences, it is futile to contend that he has to be released on 7.3.2009. As per the Judgment
rendered in C.C.No.56 of 2006 dated 12.06.2007, the set off period shall be from 24.04.2006. Hence by 23.04.2008, the sentence of simple
imprisonment for two years was over and thereafter he shall be released.
In view of such matter, we are of the considered view that the contention projected on behalf of the detenu has considerable force. The
petition deserves to be allowed.
In fine, the petition is allowed. The detenu/convict shall be set at liberty forthwith, unless he is required in connection with any other case.