GOVT. OF ANDHRA PRADESH & ANR. ETC. versus ANNE VENKATESWARE ETC. ETC.

Citation: [1977] 3 S.C.R. 7 · Decided: 17-02-1977 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Disposed off

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

7 
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. Krishnaiah- in 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 
co~accused 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was revoked.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 ''under-
trial 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 connecti~n with 
the. same .case tn wp1ch ~~e accused p~rson 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 
. 
' 
A 
c 
D 
E 
F 
G 
(3) SectiOf! 418 does not exclude a case \Vhere the \varra,nt concerns an 
accu~e.d w~o 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 0·f 
the Wa!fant to be delayed unttl. after the p~r!od of preventive detention is over. 
H 
There 1s no bar to the preventive and punitive detention continuing simultane-
ously. [13A-B, CJ 
2~240SCI/77 
A 
B 
c 
D 
E 
F 
8 
SUPREME COURT REPORTS 
[1977] 3 S.C.R. 
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 respon-
dent 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 

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