MANU/KE/0269/1986

Equivalent Citation: ILR1987(2)Kerala284

IN THE HIGH COURT OF KERALA

Crl. M.C. No. 819/1986
Decided On: 30.10.1986
Appellants: Moniyan Pillai
Vs.
Respondent: State
Hon'ble Judges/Coram:
K.T. Thomas, J.
Counsels:
For Respondents/Defendant: Public Prosecutor
ORDER
K.T. Thomas, J.
1. The short question to be decided in this Crl. M.C. is whether a person sentenced for a
term of imprisonment is entitled to have the period of detention set off against the term
of imprisonment, if during the said period he was undergoing detention in connection
with other cases as well. The Chief Judicial Magistrate, Quilon before whom this
question was raised by the Petitioner answered it in the negative. The reasoning of the
Chief Judicial Magistrate is that unless the period of detention is for the same case, the
accused is not entitled to any such set off. The above reasoning is based on the
following words in Section 428 of the Code of Criminal Procedure (for short Code):
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.
2 . This criminal miscellaneous petition has been numbered on a petition sent up by a
prisoner from Central Prison, Trivandrum. The facts, in short, are these. The Petitioner
was convicted by the Chief Judicial Magistrate for three counts of offences on 30th
November 1985 and he was sentenced to rigorous imprisonment for different terms
under each count, but the sentences were directed to run concurrently. The maximum
period of sentence imposed was five years. The Sessions Court confirmed the conviction
and sentence, but directed that he is entitled to set off under Section 428 of the Code.
In revision, this Court reduced the period of imprisonment from five years to three
years. No other modification was made by this Court. Thereafter, he sent a petition to
the Chief Judicial Magistrate for directing the Superintendent of Central Jail to adhere to
the direction regarding set off. In that petition, he mentioned that he was taken into
custody by the police on 24th January 1984 in connection with this case. The Chief
Judicial Magistrate found out that the Petitioner was in detention even much earlier in
connection with other cases and that the police took him into their custody for the
purposes of investigation of the present case on 24th January 1984. Hence, the Chief
Judicial Magistrate declined to accede to his request for a direction to the
Superintendent of Central Prison to set off the aforesaid period against the term of
imprisonment to which he was sentenced.

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3 . The contour of the right to set off the period of detention against any term of
imprisonment depends upon the construction of Section 428 of the Code. Hence that
Section is quoted here:
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.
4 . Shorn of other details which are not material for the purpose of this case, I make
note of two requisites emphasised for the application of the section. They are:
(1) The prisoner should have undergone a certain period of detention during
the investigation, inquiry or trial of the particular case.
(2) In that case, he should have been sentenced to a term of imprisonment.
The third facet in the Section comes into play if the term of imprisonment awarded is
longer than the period of detention mentioned in the first facet. The object of the
Section is evidently to ameliorate the hardships and agony of a prisoner. If he was in
detention, for whatever reason, during investigation, Inquiry or trial and was later
convicted and sentenced to any term of imprisonment, the earlier period of detention
should be counted as portion of the imprisonment already undergone by him. It
happens very often in cases where the accused is sentenced for different counts of
offences, such sentences are directed to run concurrently. The idea behind is that the
imprisonment to be suffered by him for one count of offence will, in fact and in effect,
be imprisonment for the other count as well. The words "of the same case" in Section
428 of the Code are not to be understood as suggesting that the set off is allowable
only if the sentence of detention is in connection with the same case. I do not see any
ambiguity in the Section. There is no difficulty to discern the real purport or intention of
the Parliament by including the said provision in the Code. The period during which the
accused was in prison subsequent to the inception of a particular case should be
credited towards the period of imprisonment awarded as sentence in that particular
case. The aforesaid intention is manifested in the Section. It is immaterial that the
prisoner was undergoing sentence or imprisonment in connection with Anr. case also
during the said period. Had the intention been otherwise, the parliament would have
employed necessary words to indicate it. The words "of the same case" are used to refer
to the present tense period of detention undergone by him. The detention does not
cease to be in connection with the same case merely because other cases are also
referable to the detention. What is necessary is that he should have been detained
during investigation, inquiry or trial of the same case.
5 . I find support to the said proposition from the decision in Government of Andhra
Pradesh v. A.V. Rao MANU/SC/0088/1977 : A.I.R. 1977 S.C. 1096. A certain prisoner
who was convicted prayed that the period during which he was detained under the
Preventive Detention Act should be set off against the term of imprisonment. The
Supreme Court repudiated his contention, but however, pointed out that if the detention
under the Preventive Detention Act had covered a period during the investigation,
inquiry or trial of the case, so much of the period could have been set off and not
anything beyond or after. A Single Judge of the Rajasthan High Court in Chella v. State

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of Rajastan MANU/RH/0082/1976 : 1977 Cri. L.J. 589 had occasion to consider a similar
question. It was held that the accused is entitled to claim set off or adjustment of the
period of his detention undergone during investigation, inquiry or trial of each of the
cases "irrespective of the fact whether such period of detention is or is not common to a
considerable extent in all the cases". A Division Bench of the Madras High Court in
Chinnasamy v. State of T.N. 1984 Cri. L.J. 447 discussed the similar question.
Natarajan, J. (as His Lordship then was) who delivered the judgment made detailed
reference to a number of earlier decisions of other High Courts. Their lordships
preferred the view followed in Lalrinfela v. State MANU/GH/0058/1982 : 1982 Cri. L.J.
1793. The said view is in support of the proposition adverted to above.
In the result, I allow this Crl. M.C. and direct the Superintendent of Central Prison,
Trivandrum to allow set off as prayed for by this prisoner.
*A reproduction from ILR (Kerala Series)

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