1. This is an application by. a convict under Section 428 of the Code of Criminal Procedure, 1973, claiming set off.
2. The petitioner-appellant has been sentenced by this Court to suffer R.I. for three years in Criminal (Jail) Appeal No. 11 of 1977. It has been stated that the petitioner suffered imprisonment as a U.T.P. from 15.6.76 to 19.8.76. We have heard the learned Public Prosecutor, who submits that the petitioner has suffered imprisonment as an under trial prisoner from 15.6.76 to 19.8.76. In view of the mandatory provisions contained in Section 428 Cr.P.C. the petitioner is entitled to set off the said period against the term of imprisonment imposed on him, namely, three years of imprisonment. The petitioner claims that he has suffered imprisonment as a convict from 28.6.77 to 12.4.78, until his period of imprisonment was suspended by this Court in the said Criminal Appeal. However, the period of imprisonment suffered by the petitioner from 28.6.77 to 12.4.78, as a convict cannot be set off under Section 428 Cr.P.C. It shall be treated as the period undergone by the petitioner and it should be counted and deducted from the period of sentence imposed upon the accused-convict.
3. In the result, we hold that the petitioner is entitled to set off from 15.6.76 to 19.8.76 under section 428 Cr.P.C. The period of imprisonment undergone by the petitioner as a convict from 28.6.77 to 12.4.78 shall be considered as imprisonment undergone by him in connection with the sentence imposed by this Court and it shall be deducted accordingly from the term of imprisonment of the petitioner. This aspect of the matter is also not contested by the learned Public Prosecutor. In the result, the petition is allowed to the extent indicated above.