Shaboo and Another vs State of U.P. and Another

M.M. Husain, J.—The two Petitioners, namely Shaboo and Ranga alias Israil, are detained in the District Jail of Bahraich for serving out concurrent sentences of six months'' R.I. u/s 325/149 IPC and three months'' R. I. u/s 147 IPC awarded to them in Sessions Trial No. 89 of 1979, of the Sessions Division of Bahraich. Their contention in this petition moved under Article 226 of the Constitution of India is that after crediting the period during which they have remained in jails under trial in connection with other crimes, they have already served out the sentences awarded to them in the aforesaid Sessions Trial. Their prayer, therefore, is that a writ in the nature of habeas corpus or any other appropriate writ, order or direction be issued to the opposite parties to set them at liberty forthwith as their detention in jail is now illegal.

One Jitendra Singh lodged a first information report against the two Petitioners at P. S. Kotwali Bahraich on 27-8-1978. A case under Sections 147 and 323/149 IPC bearing crime No. 409 of 1978 was registered against them on the basis of that report. The said case, when sent up for trial, was registered as S. T. No. 89 of 1979. Both the Petitioners surrendered themselves in court as soon as the case was registered against them. They were immediately bailed out and remained on bail till convicted by the trial court on 11-4-1980. Even after their conviction they were granted interim bail by the trial court. They filed Criminal Appeal No. 244 of 1980 in this Court against their conviction. They remained on bail during the pendency of the appeal also which was ultimately dismissed on 25-9-1981, and the two sentences of six months and three months'' R. I. respectively, awarded to them by the trial court for offences under Sections 325/149 and 147 IPC were confirmed. After the confirmation of their sentences by this Court Shaboo was taken into custody on 5-12-1981, whereas Ranga surrendered himself on 7-12-81. Both of them are in jail since then.

Besides the aforesaid case, the two Petitioners were also involved in three other cases, namely, crime Nos. 562 of 1978, 528 of 1979 and 484 of 1981. They were taken into custody in connection with those cases and bailed out on different dates.

In connection with Crime No. 562 of 1978 Shaboo remained in jail from 18-10-78 to 5-12-78 i. e., for forty-nine days whereas Ranga remained in jail for sixty-one days from 3-11-78 to 3-1-79. Shaboo remained in jail for fifty-nine days i. e. from 18-9-79 to 16-11-79 in connection with Crime No. 528 of 1979, whereas Ranga remained in jail from 11-1-78 to 28-2-80 i. e. for sixty-one days in connection with that case. Shaboo again remained in jail for a total of fifteen days in two instalments i. e. from 25-9-81 to 6-10-81, and 12-10-81 to 14-10-81 in connection with Crime No. 484 of 1981, whereas Ranga remained in jail for twenty days i. e. from 25-9-81 to 14-10-81 in connection with that crime. The Petitioners contend that in connection with the sentences awarded to them in S. T. No. 89 of 1979 they had to remain in jail, at the most, for six months. The periods during which they remained in jail in connection with Crimes No. 562 of 1978, 528 of 1979 and 484 of 1981, should be credited towards their sentences awarded in S. T. No. 89 of 1979, as laid down by Section 428 Code of Criminal Procedure and after that set off they have already served out those sentences and should no longer be detained in jail.

This petition had earlier come up for hearing before a Bench consisting of H. N. Seth and S. S. Ahmad, JJ. Reliance was placed before their lordships upon two Bench decisions of this Court, namely Nasim v. State of U.P. 1978 AWC 833 decided by Hari Swamp, J. and one of us, and, Onkar Singh Vs. Police Officers, Prashasan and Others, , decided by Had Swarup and U. C. Srivastava, JJ. In Nasim''s case (supra) reliance was placed upon the Supreme Court''s decision in Government of Andhra Pradesh and Another Vs. Anne Venkatesware and Others, .

The learned Judges who had earlier heard this petition came to the conclusion that in Government of A.P. v. A.V. Rao (supra) the Supreme Court, by a process of reasoning had held that in certain circumstances the period of detention in some other context can also be treated as period of sentence in connection with a case in which a person had eventually been convicted and the said period can be set-off against the sentence awarded to him. They further held that in their opinion detention in connection with some other case could not be considered or treated as a detention in connection with the case in which he had eventually been convicted and no question of setting off the period of detention in connection with other case against the sentence awarded to him could possibly arise. The Hon''ble Judges referred the matter to a larger Bench with the following observation:

As in our opinion the views taken by Hari Swarup and. D. N. Jha, JJ. in Nasim''s case (supra) and that taken by Hari Swarup and U. C. Srivastava, JJ. in Onkar Singh''s case (supra) requires reconsideration, we direct that the papers be laid before the Hon''ble the Chief Justice for constituting a larger Bench to decide this petition.

We are thus required to consider the intent and scope of Section 428 Code of Criminal Procedure in the light of the Supreme Court''s decision in Government of A. P. v. A. V. Rao (supra) and the two aforesaid Bench decisions of this Court in Nasim v. State and Onkar Singh v. Police Officers Prashashan.

Section 428 Code of Criminal Procedure is a new provision of law incorporated in the Code of 1973. It reads as follows:

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, 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.

The object of its enactment, as pointed out by the Joint Committee of the Parliament while recommending its introduction, is that:

...in many cases accused persons are kept in prison for very 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. Indeed, there may even be cases where such a person is acquitted. No doubt, sometime courts do take into account the period of detention undergone as undertrial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is not always the case, so that in many cases, the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The committee has also noted that a large number of persons in the overcrowded jails of today are under-trial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs.

It is thus obvious that Section 428 Code of Criminal Procedure is intended to relieve the anguish of undertrials for their prolonged detention in jail during the investigation, inquiry or trial of a case. Its object is to confer a special benefit upon a convict whereby his liability to undergo the imprisonment, ultimately imposed upon him in a case, stands reduced by the period during which he has remained in jail as an undertrial prisoner in the same case. It simply aims at setting off or crediting the period of pre-conviction detention of the accused of a case towards the sentence ultimately awarded to him after his conviction in that very case.

In Boucher Pierre Andre Vs. Superintendent, Central Jail, Tihar, New Delhi and Another, the Supreme Court considered Section 428 Code of Criminal Procedure and observed at the end of para 2 of the judgment that:

The Section operates prospectively on the sentence which yet remains to be served and curtails it by setting off the period of detention undergone by the accused persons during the investigation, inquiry or trial of the case.

While concluding para 3 of the judgment, their Lordships further observed that:

...Section 428 must clearly be held to be applicable to the case of the Petitioner and his liability to undergo imprisonment must be restricted to the remainder of the term imposed on him, after setting off the period for which he was detained during the investigation, inquiry and trial of the case against him.

This decision was cited with approval by their Lordships in Hardev Singh and Another Vs. The State of Punjab, . In Suraj Bhan Vs. Om Prakash and Another, , their Lordships again observed that:

Indeed, Section 428 does not contemplate any challenge to a conviction on 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.

In Government of Andhra Pradesh and Another Vs. Anne Venkatesware and Others, on which decision raliance was placed by a Bench of this Court in Nasim''s case (supra), the Supreme Court more specifically laid down that:

It is true that Section 428 speaks of the period of detention undergone by an accused person, but it makes it clear that the period of detention which is allowed to be set off against the term of imprisonment imposed on the accused on conviction must be during the investigation, inquiry or trial in connection with the same case in which he has been convicted. Therefore, the period during which the Appellants-accused were in detention under Preventive Detention Act could not be set off u/s 428 against term of imprisonment imposed on them on their conviction in Sessions cases for offence under Penal Code.

The above observations of the Supreme Court contain an unambiguous declaration of law that the ''period of detention" contemplated by Section 428 Code of Criminal Procedure refers to the detention of the accused during the investigation, inquiry or trial of the same case in which be is ultimately convicted and the period of his pre-conviction detention in that very case can be credited or set off towards the sentence ultimately awarded to him.

After having thus interpreted Section 428 Code of Criminal Procedure their lordships, on the basis of the peculiar facts of that case, granted set off to the Appellants for the detention case for the reason that when they were required in ''subsequent cases they being already under detention could also be detained in connection with those subsequent cases. Since the benefit conferred upon them by Section 428 Code of Criminal Procedure was denied due to the negligence of the concerned authorities that benefit in the interest of justice was extended to them with a finding that their detention in the earlier case should also be deemed to be their detention for the purposes of the subsequent cases with effect from the dates when they were sent in those subsequent cases.

The Delhi High Court in K.C. Dass v. State 1979 CriLJ 562 and Bombay High Court in Range Officer, Chungathara Range Vs. Ali and Others, , have also laid down that the period of detention which Section 428 Code of Criminal Procedure allows to be set off against the term of imprisonment awarded to the accused upon conviction must be during the investigation, inquiry or trial in connection with the "Basic case" in which he has been convicted. In Writ Petition No. 1086 of l979 decided on 10-8-79 by a Bench of this Court consisting of K. S. Verma, J. and one of us, set off u/s 428 Code of Criminal Procedure was claimed by the Petitioner in a case convicted at Lucknow for his detention as under-trial in a case at Indore. The Bench observed that:

Under the above provisions the only period which could be set off against the term of imprisonment is the period spent by the accused in jail during investigation, inquiry or trial of the same case. As such the period during which the Petitioner remained in jail in connection with some other case cannot be set off against the term of imprisonment imposed against him in the case decided at Lucknow. In view of the above the petition is misconceived and is hereby dismissed.

A petition for the review of the aforesaid order was moved and the judgment pronounced by the Bench in that review petition is reported as Mohan Lal alias Satish v. State of U.P. at page 272 of 1979 Lucknow Law Journal. It shows that the Bench lateron came to the conclusion that the authorities were negligent in producing the detenue before the Magistrate at Lucknow even after his availability at Indore and benefit of that negligence, upon the analogy of Supreme Court''s decision in Govt. of A. P. v. A. V. Rao (supra), was to go to the detenue. On that account the Bench held that the detention of the accused in the case of Indore should also be deemed to be his detention for the purposes of the case at Lucknow since the date when he was wanted at Lucknow and was available at Indore. The interpretation of Section 428 Code of Criminal Procedure earlier done by the Bench in its order dated 10-8-80 remained unaltered inspite of the review petition having been subsequently allowed. Thus the consistent view of the Supreme Court, this Court and other High Courts regarding the scope of Section 428 Code of Criminal Procedure is that set off towards the sentence ultimately awarded to an accused in a case has to be allowed to him only with respect to the period spent by him in jail as an under-trial in that very case.

Broadly speaking in Nasim v. State 1978 AWC 833 and Onkar Singh Vs. Police Officers, Prashasan and Others, also Section 428 Code of Criminal Procedure has been given the same interpretation which was given to it by the Supreme Court and other High Courts and by a Bench of this Court in Writ Petition No. 1085 of 1979 decided on 10-8-1979. On facts, it was held in those cases that the detention of Petitioners in earlier cases should be deemed to be their detention for the purposes of the subsequent cases also. With these findings of fact benefit of Section 428 Code of Criminal Procedure was extended to the Petitioners of those cases. Some observations made in Nasim''s and Onkar Singh''s cases (supra) are however capable of giving an impression that if a person is detained in several cases his detention in one case shall invariably be deemed to be detention in all the cases. We would, therefore, like to clarify and explain that the view of the Supreme Court in Government of Andhra Pradesh and Another Vs. Anne Venkatesware and Others, and that expressed by this Court in Nasim v. State, Onkar Singh v. Police Officers Prashashan and Mohan Lal alias Satish v. State (supra) is that u/s 428 Code of Criminal Procedure the period of detention as an under-trial, of an accused in a particular case, can be set off only towards the sentence ultimately awarded to him in that very case. Whether or not the detention of a person in one case should also be treated to be his detention for the purpose of any other case, wherein he is wanted, is a question to be decided upon the facts and circumstances of each case. No set formula can be laid down in that behalf. If the facts and circumstances of a particular case indicate that a person already detained in one case was also subsequently wanted in another case and he was not formally detained in that other case on account of the negligence of the concerned authorities, and for no fault of his, he can, with all justification, claim that his detention in the earlier case should also be deemed to be his detention for the purposes of the second case. In that event benefit of Section 428 Code of Criminal Procedure can be extended to him.

Coming to the case of the present Petitioners, it has already been indicated above that they were all along on bail in the case bearing Crime No. 409 of 1978 which gave rise to S. T. No. 89 of 1979 on 27-8-78. They have as such, no pre-conviction detention period to their credit which may be set off against the sentences ultimately awarded to them in that case. In other crimes, namely No. 562 of 1978, 528 of 1979 and 484 of 1981, they were subsequently involved. They cannot claim any benefit of those detentions in S. T. No. 89 of 79, in which case they were involved much prior to their involvement in the three crimes wherein they subsequently remained in jail. It is not disputed that in the normal course Shaboo will complete his awarded sentences of S. T. No. 89 of 1979 on 6-5-82 and Ranga alias Israil will complete the same on 8-5-82. At present their detention in Bahraich jail is perfectly valid. This petition has therefore no merits. We accordingly dismiss it.

At the time of pronouncement of judgment an oral request has been made that certificate to leave to appeal to the Supreme Court be granted. We have decided the habeas corpus petition on the basis of pronouncements made by the Supreme Court and in our opinion, no substantial question of law of general importance is involved in this case to be decided by the Supreme Court. The leave prayed for is rejected.