SURAJ BHAN versus OM PRAKASH AND ANR.

Citation: [1976] 3 S.C.R. 299 · Decided: 02-02-1976 · Supreme Court of India · Bench: P.K. GOSWAMI · Disposal: Dismissed
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Judgment (excerpt)

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299 
SURAJ BHAN 
v. 
OM PRAKASH AND ANR. 
February 2, 1976 
[P. K. GOSWAMI, P. N. SHINGHAL AND JASWANT SINGH, JJ.] 
Code of Criminal Procedure 1973 (Act 2 of 1974)-S. 428-Scope of-
Whether co11te1nplates a!TY challenge to co11viction-Procedure to inroke the 
section. 
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Practice-Interference by the Suprenie Court under Art. 136 of the Consti-
tution, when the Crin1i11al Revision before the High Court for enhancement of 
tlu~ sentence has become infructuous. by virtue of a judgment in the Crirninal 
Appeal which has become final uls 393 of Cr/. P.C. 1973 (Act 2 of 1974) is 
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not proper. 
The respondent "OP" in:flicttid five stab wounds on the appellant "S" on 
19-4-1973 but the appellant survived thanks to prompt medical attention and an 
immediate operation. The trial court convicted ''OP" under section 307 l.P.C. 
by its judgment dated 26-2-74 and sentenced him to 10 years rigorous impri-
sonment and also to a fine of Rs. 200/-
The accused "OP" filed a (Criminal 
Appeal No. 442/74) in the Punjab High Court on the ground that he was 
entitled to set of! u/s 428 of the Cr!. P.C. 1973 (Act 2 of 1974), the period of 
his detention as an under trial prisoner against the period of imprisonment im-
posed upon him. The appellant "S" also filed a Criminal Revision No. 606/ 
74 in the High Court for enhancement of the sentence against the accused. 
Since there was no opposition from the State to the plea in the criminal appeal,,. 
the High Court accepting the appeal, reduced the sentence of the term of im-
prisonment to that already undergone by him. 
Against the said appeal, there 
was no further appeal either by the State or by "S" and therefore the orders 
became final. 
The criminal revision filed by "S" was however dismissed sepa-
rately by the High Court for the "reasons recorded in Criminal Appeal No. 
442/74". Unable to obtain leave under Art. 134(1) (c) of the ~Constitution, 
"S" obtained special leave after notice to the accused "OP" and the State. 
Dismissing the appeal, the Court 
HELD: ( 1) It is clear from S. 428 of the Criminal Procedure Code. 1973 
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(Act 2 of 1974) itself that even though the conviction was prior to the enforce· 
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ment of the code of criminal procedure benefit of Section 428 would be 
available to such a conviction. Indeed S. 428 does not contemplate any chal-
lenge to a conviction or a sentence. It confers a benefit on a convict reducing 
his liability to undergo imprisonment out of the sentence imposed for the 
period which he had already served as an under trial prisoner. 
[30JH, 302A] 
(2) The procedure to invoke Section 428 Criminal Procedure Code could be a 
Miscellaneous application by the accused to the court at any time while the 
sentence runs for passing an appropriate order reducing the term of imprison-
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meat which is the mandate of the section. [302A] 
(3) li;t the inita~t cas7, _in the absence of an appeal against the judgment 
of the, High Cour.t m Cnmmal Appeal No. 442 /74 either by the State or by 
the 1n1ured, that Judgment has become final. 
The scope of criminal revision 
before the High Court was whether the sentence of ten years should be further 
enhanced, but that sentence itse]f disappeared by virtue of the judgment of the 
High Court in the Criminal Appeal. The criminal revision therefore became 
infructuous and the Supreme Court can do nothing about it while the judgment 
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of the High Court remains operative. [3020, E·F] 
Obiter : The order of the High Court was clearly unsu&tainable even in 
terms of section 428 Criminal Procedure Code as the only set off which was 
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300 
SUPREME COURT REPORTS 
[1976] 3 S.C.R. 
urged for under lhc section and which was admissible, was a period of about 
nine months Of pretrial detention. 
[The Court disapproved of such a grossly lenient sentence imposed by 
the High Court and deprecated that the State ignored to take notice 
of such a grossly lenient sentence and for not preferring an appeal to 
the Court.] 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal :No. 381 
of 1975. 
Appeal by Special Leave from the Judgm~nt and Order dated 
the 10th January, 1973 of the Punjab and Haryana High Court at 
Chandigharh in Criminal Revision No. 606 of 1974. 
V. C. Mahajan, S. K. Mehta and K. R. Nagaraja for the Appellant. 
Ch. Ram Sarup and R. A. Gupta for Respondent No. I 
H. S. Marwah and S. P. Nayar for Respondent No. 2 
The Judgment of the Court was delivered by 
GOSWAMI, J.-On April 19, 1973, the
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