Abubacker alias Bapputty vs State of Kerala

P.A. Mohammed, J.—The common question that comes up for decision in this batch of petitions is whether the life-convicts are entitled to claim the benefit of set off of the period of detention undergone by them as under trial prisoners against the sentence of life imprisonment imposed on them, u/s 428 of the Code of Criminal Procedure, 1973 (for short ''the Code'').

Section 428 of the Code is thus :

Period of detention undergone by the accused to be. set off against the sentence of imprisonment --

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. In order to claim the benefit of set off u/s 428 two essential conditions are required to be fulfilled; (i) the accused person has, on conviction, been sentenced to imprisonment for a term, and (ii) the accused person has undergone detention during the investigation, inquiry or trial before the date of conviction. When these two conditions are fulfilled the liability of accused person to undergo imprisonment shall be restricted to the remainder of the term of imprisonment imposed on him after setting off the period of detention undergone by him as undertrial prisoner. This is a statutory right available to the accused person and he is entitled to claim this benefit subject to the fulfillment of the aforesaid conditions. Therefore, the sentence of imprisonment is always subject to the provisions of Section 428. This would be clear from the object of enactment of this new provision which came into force from April 11, 1974. The Joint Committee of Parliament while recommending its enactment intended to remedy the unsatisfactory situation, namely: "The accused persons are kept in prison for long period as undertrial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as undertrial prisoner." It further pointed out that in many cases the accused person is made to suffer jail life for a period out of all proportions to the gravity of the offence or even to the punishment provided in the statute. Therefore, in all cases where the imprisonment for a specific term is imposed on an accused person he is entitled to claim the benefit u/s 428 irrespective of whether the court imposing such imprisonment makes a direction in that behalf or not. Such benefit u/s 428 conferred on an accused person cannot be effaced by the reason of the absence of an order allowing set off by the court imposing imprisonment.

The question whether the imprisonment for life is imprisonment for a ''term'' arose for decision before the constitution bench of the Supreme Court in Bhagirath Vs. Delhi Administration, . In Gopal Vinayak Godse Vs. The State of Maharashtra and Others, (Para 5) the Supreme Court observed :

A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person''s natural life.

After considering this decision, the Supreme Court in Bhagirath Vs. Delhi Administration, held (Para 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 would 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 undertrial 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.

The court finally said that the question of set off of the period of detention claimed by the accused as an undertrial prisoner against the sentence of life imprisonment arises only if an order is passed by the appropriate authority u/s 432 or 433 of the Code. This position was restated later by the Supreme Court in Ashok Kumar alias Golu Vs. Union of India and others, (contd. on col. 2): (1991 Cri LJ 2483) observing as below (Para 12):

These directions make it clear beyond''. any manner of doubt that just as in the case of remissions so also in the case of set off the period of detention as undertrial would enure to the benefit of the convict provided the appropriate Government has chosen to pass an order u/s 432/433 of the Code.

The court further said that the ratio of Bhagirath Vs. Delhi Administration, does not run counter to the ratio of the court in Gopal Vinayak Godse Vs. The State of Maharashtra and Others, or Maru Ram and Others Vs. Union of India (UOI) and Others, . Thus the position is well-settled that the period of detention under-gone by the accused persons as undertrial prisoners shall be set off against the sentence of life imprisonment imposed upon them subject to the provisions contained in Section 433A and provided that orders have been passed by the appropriate authority u/s 432 or 433 of the Code.

All the petitioners in these cases are life convicts who had undergone detention as undertrial prisoners. The periods of detention of the petitioners as undertrial prisoners claimed by them for set off are as follows:

Case No. Name of prisoner Period claimed for set off Crl. M.C. Abu backer alias Bapputty S/o 996/94 Moitheenkutty Convict No. 491 833 days Crl. M.P. Thazhekkattu Abdul Salam S/o 785 days 899/94 Abdul Jaleel Convict No. 1017 Crl. M.C. Ashraf Mannil, Convict No. 785 days 785/94 1018, Central Jail, Kannur Crl. M.C. Mohanan Kani S/o Damodaran 340 days 1910/94 Kani, Convict No. 1637

In view of the legal position discussed herein before, we have no hesitation to hold that the abovenamed prisoners undergoing imprisonment as life-convicts are entitled to get the benefit of Section 428 of the Code. However, it is an admitted case that the appropriate authority has not so far passed any order u/s 432 or 433 of the Code in the case of the petitioners. That being so, the claims put forth by the petitioners at present are premature. It is however, made clear that they are entitled to claim the benefit of set off as and when orders are passed by the appropriate authority u/s 432 or 433 of the Code.

The petitions are disposed of as above.