Kalidas Vanmalibhai vs State of Gujarat and Another

This Judgment has been overruled by : Kartar Singh and Others Vs. State of Haryana, AIR 1982 SC 1439 : (1982) CriLJ 1772 :

(1983) 1 Crimes 43 : (1982) 1 SCALE 671 : (1982) 3 SCC 1 : (1983) 1 SCR 445 : (1982) 14 UJ 621

M.P. Thakkar, J.—The claim of a convict sentenced to suffer a term of imprisonment for life for setting off the period of his pre-conviction

detention during investigation, enquiry and trial having been repelled by the learned Sessions Judge on taking an amazing and unprecedented view

that sentence of imprisonment for life is not a sentence for a term of imprisonment within the meaning of Section 428 of the Code of Criminal

Procedure of 1973, the convict has sought redress in this Court.

The relevant provision, Section 428, which provides for set off in respect of the period of pre-conviction detention undergone by the convict as

an under-trial prisoner reads thus:

428 Where an accused person has, on conviction, been sentenced to imprisonment for a term, the period of detention, if any, undergone by him

during the investigation, enquiry 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."" On a plain reading of the provision it is clear that this benefit has been conferred

on all convicts regardless of the provision under which the conviction has been recorded. The benefit of Section 428 can be claimed even by a

convict who has been convicted for an offence of murder u/s 302 of the Indian Penal Code. There is no rational basis for discriminating between

convicts who have been convicted for an offence of murder u/s 302 of the Indian Penal Code on one hand and the convicts who are undergoing a

sentence of imprisonment in respect of other offences. The learned Sessions Judge appears to have placed a strange interpretation on the

expression ""imprisonment for a term"". The view taken by him is that since the Legislature has employed the expression ""term"" if the period is not

defined in terms of years, a convict is not entitled to claim the benefit of Section 428. The interpretation placed by him is altogether untenable. No

doubt a sentence of imprisonment for a life term does not confer a right on the convict to be set at liberty on completion of the period of 20 years

less the remissions earned by him under the relevant rules as per the law declared by the Supreme Court in Gopal Vinayak Godse Vs. The State of

Maharashtra and Others, . Though theoretically it is a sentence for the duration of life as discussed in Godse''s case (supra) such a convict is also

entitled to remission earned under the relevant, rules on several counts such as:

(a) Ordinary remission

(b) Special remission

(c) Physical training remission

(d) Literary remission

(e) Annual good conduct remission

(f) State remission.

And the remission is usually granted by the State.

It is well known that though a sentence of life term means a sentence for the whole of the remaining period of the convict''s natural life,

remissions earned as per the aforesaid rules are taken into account and the convicts are generally released before the completion of 20 years. This

reality cannot be elbowed into oblivion. Just as set off is given for the remissions earned, a convict would be entitled to set off in respect of the

period of pre-conviction detention. Moreover the interpretation placed by the learned Sessions Judge is contrary to established practice. All the

convicts who are sentenced to suffer a term of imprisonment for life have been accorded this benefit since the enforcement of the Code of Criminal

Procedure of 1973. There is no ambiguity whatsoever and neither any principle of interpretation nor any policy consideration compels one to

adopt such a truncated view which has never been canvassed so far. It is difficult to comprehend why the learned Sessions Judge was obliged to

take this narrow and impossible view in regard to the interpretation of a beneficial provision which seeks to treat the convicts fairly by giving credit

for a period of detention undergone by the convict concerned during investigation or enquiry or trial as an under trial prisoner. If the other convicts

are entitled to claim the benefit of the period of detention already undergone, there is no reason why the convicts who have been sentenced to a

term of life imprisonment should not be permitted to take the advantage of this beneficent provision. The expression ""term"" (duration) is equally

applicable to a sentence of imprisonment for life. A life term does not cease to be a term of imprisonment because the number of years are not

specified.

We, therefore, allow this petition, reverse the order of the learned Sessions Judge and direct that the petitioner shall be granted the benefit of set

off u/s 428 of the Code of Criminal Procedure of 1973 by giving credit for the period of detention undergone by him during the investigation,

enquiry and trial. Rule is made absolute.