Whether life convicts are entitled to get benefit of set off U/S 428 CRPC of pre-conviction detention?

 Section 428 of the Code of Criminal Procedure, 1973, has been

considered by the Constitutional Bench of the Apex Court in Bhagirath & Another –Vs. Delhi Administration (1985 (2) SCC 580), wherein the following statement of law has been made.

“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 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 under trial 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………..

13. We would like to add that we find it difficult to agree

 that the expressions

'imprisonment for life' and imprisonment for a term' are

used either in the Penal Code or in the Criminal Procedure

Code in contra-distinction with each other. 

14.4.Thus, in the light of the aforesaid pronouncements and taking note of the underlying object enshrined under Section 428 of the Code of Criminal  Procedure, 1973, we have no hesitation to hold that 'set off ' is permissible even for a life convict.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

W .A.No .6 67 of 2020 & CMP No.9331 of 2020

& HCP No.959 of 2020

W.A.No.667 of 2020

The Home Secretary (Prison-IV) Vs  A.Palaniswamy @ Palaniappan

CORAM :

 MR. JUSTICE M.M.SUNDRESH

AND

 MS. JUSTICE R.N.MANJULA

Delivered on : 05.07.2021

Author: M.M.SUNDRESH, J.

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How to grant set off to accused on conviction if he is simultaneously arrested and detained in two or more cases?

Various High Courts have expressed on this question. A Division Bench of Delhi High Court has dissented from a contrary view taken by a Single Judge of that High Court and held in K.C. Das vs. The State (1979 Criminal Law Journal

362) that the statute does not make any distinction between the first case and the second case for application of Section 428 of the Code. A Division Bench of the High Court of Gauhati in Lalrinfela vs. State of Mizoram and ors. (1982 Criminal Law Journal 1793) has adopted the same view. Lahiri and Hansaria, JJ, said in the said decision that if the accused is simultaneously arrested and detained in two or more cases and on conviction obtains set off for the period of his detention in the first case he is not ineligible to obtain set off for the period in the subsequent cases; in each case the court is to count the number of days the accused was in such detention separately and the liability to undergo imprisonment on conviction should be restricted to the remainder of the terms of the imprisonment imposed on him in that case.

A Division Bench of the Andhra Pradesh High Court in Gedala Ramulu Naidu vs. State of A.P. and anr. (1982 Criminal Law Journal 2186) and a Division Bench of the Madras High Court in Chinnasamy vs. State of Tamil Nadu and ors. (1984 Criminal Law Journal 447) have also adopted the same view in tune with the interpretation given by us. While speaking for the Division Bench of the Madras High Natarajan, J (as he then was) has made a survey of most of the decisions thus far rendered by different High Courts and opted to flow with the view adopted by all the other High Courts almost uniformly.

We have no reason to think that the High Courts mentioned above 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 connection with the same case during that period. We therefore, respectfully dissent from the view expressed by the two Judge Bench of this Court in Raghbir Singh vs. State of Haryana(supra).

Supreme Court of India

State Of Maharashtra And Anr vs Najakat Alia Mubarak Ali on 9 May, 2001

Hon'ble Judges/Coram:
K.T. Thomas, R.P. Sethi and S.N. Phukan, JJ.

Citation:AIR 2001 SC 2255

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WHETHER ACCUSED CONVICTED OF AN OFFENCE CAN COUNT THEIR UNDER-TRIAL DETENTION PERIOD IN A SEPARATE CASE FOR SEEKING BAIL?

Those convicted of an offence cannot count their under-trial detention period in a separate case for seeking bail. There can be no concurrence (simultaneous occurrence of events) of under-trial detention in one case with post-conviction sentence in another for the purpose of bail, the Punjab and Haryana high court has ruled while hearing a bunch of bail matters.

Serial offenders used to claim detention in one case as custody for another crime committed, while seeking bail. Due to the longer detention shown, they would often be considered for bail by the courts, and after coming out on bail would again indulge in crime. “Now, habitual criminals will be restrained from getting benefit of same custody in many FIRs, and ultimately, it will result in their staying in jail for longer periods. The order will also instil confidence in society,” said Haryana additional advocate general Surinder Singh Pannu, who was associated with the case.

The high court held that a convict could not serve the sentence in one case and simultaneously show that he was in custody under trial. It should be kept in mind that a crime might have an individual victim, yet it also transcended into an offence against the state and the criminal jurisprudence of every age strove to strike a balance between the rights of the accused and those of society. 

“When a person in under-trial detention in one case is convicted and sentenced in another case, his detention in the first case ceases and the clock stops till such time as he is released in the second case, and his period of under-trial detention in the first case would again start only after he is released (either on bail or on acquittal in appeal) in the second case,” said justice Ajay Tewari in his order.

The high court also made it mandatory for the prosecution to submit custody certificates before the judges in lower courts at the time of consideration of prayer for bail or at the time of sentencing of the accused so that courts could decide cases in “perspective”. So far, it was mandatory to produce custody certificates during the proceedings only in the high court.

The high court also directed Punjab, Haryana and Chandigarh to work out an effective custody certificate jointly and forward it to all jails in both the states and the union territory. The high court gave a month’s time to the respondents to comply with the directions. The high court registry has also been directed to circulate a copy of this order to all courts, jails and public prosecutors within a month.

One of the petitions was of Tejinder Singh, a Punjab resident, convicted in 10 cases, all involving physical violence, who had cited under-trial detention and post-conviction sentence period of multiple cases clubbed together to make a case for his bail. During the hearing of the case, the high court had also made Haryana and Chandigarh as parties and appointed an amicus to adjudicate the issue.

Punjab-Haryana High Court

Tejinder Singh @ Teja vs State Of Punjab on 17 March, 2016

CRM-M-21934-2015 (O&M)                                     

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