Kuppan vs Superintendent of Central Prison, Madras

Arunachalam, J.—The Petitioner seeks to invoke the inherent powers of this Court u/s 482, Crl. P.C, praying set off, of the pre-trial detention, to which he claims to be entitled, u/s 428, Crl. P.C.

Here are a few facts which will be necessary to dispose of this petition. In respect of Crime Numbers 5569 and 5691/ 87 the Petitioner was prosecuted in C.C. Nos. 1171/88 (offences under Ss. 341 and 323, I.P.C.,), and 1172/88 (offences under Ss. 323, 336, 427 and 506(2) I.P.C.,) on the file of the X Metropolitan Magistrate, Madras, convicted and sentenced to undergo rigorous imprisonment for 6 months in each case, judgments having been pronounced on the same day, viz: 27.9.1988. The Petitioner was arrested on 5.12.1987 in respect of both the crimes and remanded either on 5.12.1987 or 6.12.1987, regarding which date there is a dispute between the Petitioner and the Respondent, which however could be solved by a perusal of the original remand order.

When the Petitioner was in remand an order of preventive detention under Tamil Nadu Act 14 of 1982 was clamped on him in respect of Crime No. 5691/87 on 12.12.1987 and a warrant therefor was sent to the jail on 13.12.1987. Though the detention period of one year is over, still the Petitioner had not been freed since the Respondent had refused to take into consideration the period of under trial detention, although the period from 27.9.1988 till 12.12.1988 (the date of conviction and the expiry of the period of preventive detention) was acceded to as enuring in favour of the Petitioner.

I have heard Sri R. Sankarasubbu appearing for the Petitioner and Mr. G.R. Edmund, Additional Public Prosecutor on behalf of the Respondent. Let me now determine if the Petitioner is entitled to the benefit of remission, contemplated u/s 428, Crl. P.C. Section 428, Code of Criminal Procedure runs 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.

It is patent from a reading of this section that an accused convicted and sentenced to imprisonment for a term (not the default sentence) shall be entitled to claim set off of the period of detention undergone by him during investigation, inquiry or trial of the same case, before the date of such conviction, On the facts of this case there is no doubt that from 5-12-1987, the date of his conviction, he was in jail. The determination is now restricted to the effect of the order of preventive detention promulgated on 12-12-1987, when the Petitioner was in jail, to his right of remission u/s 428, Crl. P.C.

The Supreme Court in Balak Ram Vs. State of U.P., after referring to Haradhan Saha Vs. The State of West Bengal and Others, has observed.

What was held in this case was, inter alia that the nature of preventive detention is entirely different from punitive detention and there is no bar to a man being detained under the preventive detention law, when a criminal proceeding for the offences on which the preventive detention is based is pending. If that be so, there can be no bar to the preventive and punitive detention continuing simultaneously.

In Champalal Punjaji Shah Vs. State of Maharashtra, . The Supreme Court has observed:

It is only in circumstances where the prisoner would have unquestionably been in detention in connection with a criminal case, if he had not been preventively detained, his preventive detention might be reckoned as detention as an undertrial prisoner or detention pursuant to conviction, for the purposes of Section 428, Crl. P.C.,

The observations of a Division Bench of this Court in Cinnasamy v. State of Tamil Nadu, 1983 L.W. Crl. 115 may also be relevant though a directly identical question was not the subject matter of consideration. Natarajan, J , (as he then was), speaking for the Bench has observed:

It is now well established that an accused can undergo pre-trial detention in more than one case at the same time and likewise, there is also no bar to preventive and pre-trial detention as well as preventive and punitive detention running simultaneously.

On the facts unfurled in this case the Petitioner had been remanded to jail even on 5/6.12.1987, a few days prior to the clamping of the preventive detention, on 12.12.1987. If the order of preventive detention had not been made, and the Petitioner had not been bailed out as in this case unquestionably he would have undergone detention during investigation, inquiry or trial of the case, and hence he would be entitled to a remission or set off as claimed for the period commencing 5/6.12.1987, the date of his arrest/remand till 27.9.1988, the date of judgment in the calendar cases. The Petitioner shall be released forthwith, if he is not required to be detained, in respect of any other case. This petition is allowed.