1. This criminal application is registered on the basis of a letter received from the Superintendent, Nasik Road Central Prison, Nasik, who sought clarification regarding the set off to be granted to prisoner Jaswantlal Harjivandas Dholakia. It appears from the record that prisoner Jaswantlal was sentenced to undergo imprisonment for one year and six months and to pay a fine of Rs. 300/- or in default to undergo further imprisonment for two months in Case No. C. C. 770/P/1973 vide judgment of 33rd Court, Ballard Pier, Bombay dated 1st of Oct. 1973. Thereafter by the 7th Court, Dadar, Bombay he was again sentenced to undergo two years' imprisonment in C. C. 833/P/1971 by judgment dated 21-12-73. It further appears from the record that prisoner Jaswantlal had approached this Court through jail in Criminal Application No. 1160 of 1974 requesting that while counting the period of sentence he should be granted the set off as contemplated by Section 428 of the Cr. P.C. The Division Bench of this Court by the order dated 3rd Feb. 1975 observed that the record before the Court did not indicate in which case he was sentenced, for what offence and on what date. However, relying upon the decision of this Court in Narayanan Nambeesan v. State of Maharashtra : (1974)76BOMLR690 as well as the decision of the Supreme Court reported in Boucher Pierre Andre v. Supdt. Central Jail, Tihar, New Delhi : 1975CriLJ182 where the Supreme Court allowed the application filed by the prisoner and directed the Superintendent, Tihar Jail to compute the period of his sentence by excluding that period when he was under detention during investigation or trial (sic). Thereafter it appears that the prisoner himself approached the Metropolitan Magistrate, 33rd Court, Ballard Pier, Bombay as well as the Metropolitan Magistrate, 7th Court, Dadar, Bombay through the Superintendent, Nasik Road Central Prisoner, Nasik for necessary clarification and instructions. The Metropolitan Magistrate, 33rd Court Ballard Pier, Bombay vide his letter dated 29th Oct. 1075 in formed the Superintendent, Central Prison, Nasik that the accused was in custody in Case No. 770/P of 1973 from 2-5-1973 to 1-10-1973 and this period of detention should be adjusted as set off under Section 428 of the Cr. P.C. The Metropolitan Magistrate, 7th Court, Bombay vide his letter dated 28th Dec. 1975 also informed the Superintendent, Central Prison, Nasik that prisoner Jaswantlal was arrested on 27-7-1971 and was in custody up to 18-10-1971 on which date he was released on bail. Again he was taken in custody on 21-7-1972 and was in custody up to 13-4-1973. Thereafter he was released on parole from Thana jail as per intimation given by the Commissioner of Police vide his letter dated 7-4-1973. While the prisoner was on parole, he remained absent and hence a warrant was issued against him and he was brought by execution of warrant on 4-9-1973 and as such he was in custody from 4-9-7973 till 21-12-1973 on which date he was convicted. Hence the period shown above should be granted as set off ax far as the case before the Metropolitan Magistrate is concerned. From the bare reading of these two letters It is quite obvious that the set off was granted for overlapping period in both these cases, and, therefore, the Superintendent of the Central Prison, Nasik has sought clarification from this Court as to how the set off should be counted in these two cases.
2. On the notice being issued by this Court, the prisoner appearing in person has filed his detailed reply. It is not necessary to refer to his reply in detail because we are not concerned in this case with other cases in which he was already granted set off. We do not intend to disturb the said grant. In this case we are merely concerned with the set off granted by the Metropolitan Magistrate, 33rd Court and the Metropolitan Magistrate, 7th Court in the aforesaid two cases viz. Case No. 770/P of 1973 and 833/P of 1971. From the bare reading of these two letters if is quite obvious that in both these cases the period from 4-9-1973 onwards is overlapping. So far as case No. 770/P of 1973 is concerned, he is granted set off from 2-5-1973 to 1-10-1973 and again in Case No. 883/P of 1971 he is granted set off from 4-9-1973 to 21-12-1973. In our opinion the set off granted in the subsequent case viz. in Case No. 883/P of 1971 from 4-9-1973 to 21-12-1973 is wholly uncalled for because the period from 1-4-1973 (2-5-1973) to 1-10-1973 was already counted while counting the set off in Case No. 770/P of 1973 and after 1-10- 1 973 till 21-12-1973 prisoner was undergoing a substantive jail sentence as a convict prisoner in Case No. 770/P of 1973.
3. From the bare reading of Section 428 of the Cr. P.C. it is quite obvious that it confers a benefit on a convict reducing his liability to undergo imprisonment out of the sentence imposed for the period which he has already served as an undertrial prisoner in the case concerned. It lays down that the period of detention of an accused as an undertrial prisoner shall be set off against the term of imprisonment imposed on him on conviction. The section only provides for set off. It does not change the nature of detention or sentence imposed. It does not do away with two different kinds of detentions nor it puts them on the same footing for all purposes. The detention contemplated by this Section is detention during investigation, inquiry or trial of the ease in which the accused person has been convicted. The section makes it very clear that the period of detention which it allows 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. The case with which we are dealing is not a case wherein the sentences are directed to run concurrently. If he was undergoing substantive jail sentence in Case No. 770/P of 1973 in which he was convicted on 1st of October 1973, he was not detained as an under-trial prisoner in another case because at the relevant time he was undergoing substantive jail sentence as a convicted criminal prisoner Section 3(3) of the Prisons Act, 1894 defines the term 'convicted criminal prisoner' and Section 27(3) of the said Act provides for their separation. Separate provisions are made for the employment of these prisoners in Chapter VII of the Prisons Act. Therefore, it is difficult to hold that a prisoner who was undergoing substantive jail sentence on conviction in one case was also an undertrial prisoner in another case. If such a construction is accepted, it is bound to create anomaly. It is no doubt true that the question will obviously stand on different footing if sentences in two cases are directed to run concurrently, but we are not concerned with such a case in the present application and hence it is not necessary to express any opinion in that behalf. As per provisions of Section 427(1) of the Code of Criminal Procedure a sentence imposed on the accused on his subsequent conviction shall commence at the expiration of the imprisonment to which he had been previously convicted, unless it is made concurrent with the previous sentence. Section 428 of the Code applies only to a stage before conviction. It does not alter the nature of sentence. If the sentence is to ran consecutively by indirect method of invoking benefit of set off under Section 428 of the Code, in the absence of specific direction, it cannot be altered to run concurrently. Therefore, Sections 427 and 428 will have to be read together and harmoniously.
4. Even otherwise, once the period from 4-9 1973 to 1-10-1973 is already counted by granting a set off to the prisoner in Criminal Case No. 770/P of 1973, the same period cannot be counted in another case because once a set off is granted, it becomes a part and parcel of the sentence imposed and undergone. In this view of the matter, in our opinion this double counting of the period or its overlapping while granting set off in these two cases is not contemplated when the sentence is not directed to run concurrently and the prisoner was convicted and sentenced in two different cases, by two different courts and on two different occasions and the sentences are to run consecutively, Therefore, while counting the period of set off the petitioner will not be entitled to get a set off from 4-9-1973 to 21-12-1973 in Criminal Case No. 833/P of 1971. In our opinion this practically covers all the questions raised by the Superintendent of Central Prison, Nasik and as already observed, so far as the other cases are concerned, we do not intend to disturb the period of set off if already granted to the prisoner.
5. In the letter written by the Superintendent, Central Prison, Nasik as well as the reply filed by the prisoner a reference is made to certain decisions of this Court, viz. the decision of single Judge of this Court in Cr. Appln. No. 2900 of 1976 as well as the decision of this Court in Cr. Appln. No. 1160 of 1974 decided by the Division Bench of this Court. So far as the decision in Criminal Application No. 1160 of 1974 is concerned we have already made a reference to it and by that order the Superintendent of Jail was only directed to compute the period of sentence of the prisoner by excluding that period when he was under detention during investigation or trial. It is further made clear in the said decision that the record of the case was not before the Court to indicate in which case he was sentenced, for what offence and on what date. So far as the decision of Sapre J. in Cri. Appln. No. 2900 of 1976 is concerned it is quite obvious from the bare reading of the said decision that such a question was not at all posed nor decided by the learned Judge. The question posed therein related to the retrospective operation of the provisions of Section 428 of the Code of Criminal Procedure. Relying upon the decision of this Court in Narayanan Nambeesan v. State of Maharashtra : (1974)76BOMLR690 as well as the decision in Boucher Pierre Andre v. Snpdt. Central Jail, Tihar, New Delhi : 1975CriLJ182 Sapre J. observed that the benefit of the said section is equally available to those persons who are convicted before 1st April 1974 i.e. before coming into force of the new Code. From para 4 of the said order it is further clear that the factual position was not controverted and, therefore, the application was allowed. The question as to double counting of the same period in two different cases when the sentences are to run consecutively was neither raised nor considered in the said decision. In this view of the matter, in our opinion, the decision in that case cannot help the convicted prisoner and hence the said decision is of no assistance while deciding the controversy raised before us.
6. Rule is discharged. A copy of this order be sent to the Superintendent, Central Prison, Nasik.