LexSTATE OF MAHARASHTRA AND ANR. versus NAJAKAT ALIA MUBARAK ALI
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A STATE OF MAHARASHTRA AND ANR. NAJAKAT ALIA MUBARAK ALI MAY 9, 2001 B [K.T. THOMAS, R.P. SETHI AND S.N. PHUKAN, JJ.] Code of Criminal Procedure. 1973: Section 428-Requisites for applica1io11 of-Set off-Entitlement to- C Accused involved in two separate offences for which he lvas arrested- Conviction-Set off in respect of both the cases-Legality qf-Held, section 428 Cr. P.C. does not contain any indication that if an accused was in jail as an under-trial prisoner in a second case, the benefit of set off lvould be denied to him in respect of the second case-Statue not making any distinction D between the first case and second case for application of the said section- Words "of the same case" occurring therein not to be understood as suggesting that set off is allowable only if the earlier jail life was undergone by an accused exclusively for the case in which the sentence is imposed-Section 427. E Respondent was involved in two separate offences for which he was arrested. After being charge sheeted in both the cases, he was tried separately. He \vas convicted in the first case and was held to be entitled to th~ ~et off under Section 428 of the Criminal Procedure Code by Sessions Court. Subsequently, he was convicted in the other case also and was again held entitled to the set off under Section 428 Cr.P.C. In due course, respondent F prayed for his release as according to him he had already served the sentences imposed on him in both the cases7 The jail authorities, however, placing reliance upon a Resolution dated 7.9.1974 adopted by the State Government, refused to release him on the ground that he could-not be given set off in the second case as he had been given set off in the first case. Respondent G filed a petition in High Court which was allowed holding that respondent was entitled to benefit of Section 428 Cr.P.C. in both the cases for the period of detention undergone by him during investigation, inquiry and trial. Hence the present appeal by the State. On behalf of the State, it was contended that the words 'of the same H case' occurring in Section 428 Cr.P.C. afforded sufficient indication that the 600 - ~-- t- r ' » I I .., STATE OF MAI IARASllTRA 1·. NA.Ii\ KAT J\1.1,\ MUBJ\RJ\K ALI 60 I benefit was intended to cover only for one case and not more than that. A Dismissing the appeal by majority the Court HELD: (Per Thomas, J.) I. t. Section 428 of the Criminal Procedure Code does not contain any B indication that if the prisoner was in jail as an under-trial prisone1• in a second case the benefit envisaged in the Section would be denied to him in respect of the second case. The said Section 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 whethi:r he was in jail in connection with the same during that period. 1608-B; 610-GI C 1.2. The words 'of the same case' in Se~tion 428 Cr.P.C. are not to be understood as suggesting 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. The period during which the accused was in prison sub§equent to the inception of a p!lrticulnr case, should be credited towards the period of D imprisonment awarded as sentenre in that particular case. It is immaterial that the pri,soner was undergoing sentence of imprisonment in another .:ase -+ also during the said period. The words 'of the same case' were used to refer to the pre-sentence period of detention undergone by hint. Nothing more can be made out of the collocation of those words. 1609-G-H I E 1.3. The two requisites postulated in Section 428 Cr.P.C. are: 4 (I) During the stage of investig11tlon, inquiry or trial of a particular case the prisoner should have been in jail at least for a certain period. (2) He should have been sentenced to a term of imprisonment in that case. 1609-CJ F If the above two conditions zre satisfied then the operative part of the provision comes into play i.e if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of G investigation, inquiry or trial, the convicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words 'if any' in the Section amplifies that if there is no balan
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