1. Banwari and Ram Sarup were convicted bv the Court of Session in, Hissar on* November 12, 1965 under Section 302 read with Section 34, Indian Penal Code, and1 sentenced to life imprisonment each. Criminal Appeal No. 903 of 1965 filed bv them was dismissed by this Court on February 21. 1'967. Since the date of their conviction, thev have been suffering the term of imprisonment. By filing? this petition, thev seek relief under Section 428 of the Code of Criminal Procedure of 1973 (hereinafter referred to as the pew Code) which enacts :
Where an accused person has. on conviction, been sentenced to imprisonment for a term, the period of detention. if any. undergone bv him during the investigation, inquirv or trial of the same case and before the date of such conviction, shall be set oft 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 anv. of the term of imprisonment imposed on him,
For determining the Question whether the provisions of the section auoted above can be applied to the case in hand, the following three categories mav be visualised' :
(1) Case finally disposed of before the commencement^ of the new Code.
(2) Case, trial or appeal of which is pending at the commencement of the new Code, and '
(3) Case, trial of which starts after the commencement of the new Code.
2. So far as category No. 3 is concerned, there can be no two opinions that benefit of Section 428 would eo to an accused person. As regards the application of its provisions to the other two categories, the relevant portion of Section 484 of the new Code is:
(1) The Code of'Criminal Procedure, 1898, is herebv repealed.
(2) Notwithstanding such repeal.-
(a) if, immediately before the date on which this Court comes into force, there is anv appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial inauiry or investigation shall be disposed of. continued, held or made, as the case mav be. in accordance with the provisions of the Code of Criminal Procedure, 1898. as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force.
Provided that every inquirv under Chapter XVIII of the Old Code, which is pending at the commencement of thia Code, shall be dealt with and disposed of in accordance with the provisions of this Code;(b) all notifications published, proclamations issued, (powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Sipecial Magistrates, made under the old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code: (c) * * * *(d) * * * *
Sub-section (2) of Section 484 clearly enacts that a case of the second category shall be disposed of in accordance with provisions of the old Code. It follows that in a pending case relief under Section 428 of the new Code cannot be given to an accused. That being the clear intention of the legislature, one fails to see how the benefit of Section 428 can pos-siblv So to the accused persons, like the two petitioners before us. of the first category. For doing so, Section 428 shall have to be given retrospective effect, but this is nowhere either in the terms of the section or in the scheme of Section 484. All the same, learned counsel for the petitioners urged that the relief claimed can be granted inasmuch as Sub-section (2)(b) of Section 484 of the new Code lavs down that all sentences passed under the old Code and which are in force immediately before the commencement of the new Code shall be deemed to have been passed under the corresponding provisions of this Code. In our opinion, fallacy in the argument is obvious. The saving Clause (b) to Sub-section (2) of Section 484 is designed to safeguard the validitv of sentences passed under the old Code and not to give retrospective effect to Section 428 of the new Code.
3. Learned counsel for the petitioners then placed reliance on a Sinele Bench decision of this Court in Rud Lai v. State of Harvana. (Criminal Writ No. 12 of 1974) decided on April 19. 1974. In that case, lone before the commencement of the new Code, Ram Chander was convicted under /Section 324. Indian Penal Code, and sentenced to rigorous imprisonment for one year. His relation. Rup Lai filed petition under Articles 226/227 of the Constitution of India praying that a writ in the form of habeas corpus or any other order or direction be issued direct-ins the respondent to release the convict immediately as- he had spent more time during the period of investigation, inauirv and trial of the case than the sentence imposed. On facts, the learned Judge lound that the convict had remained in detention for 13 months and 2 days, including 3 months and 24 days after^ his conviction. The relief claimed was granted with the following observations:
Under Section 428 of the Code of Criminal Procedure (Act No. 2 of 19741 it has been provided that the iperiod of detention suffered by an accused person shall be set off against the term of im-pf isonment imposed on him. Consequently. I allow this petition and order that bail bond furnished by the accused should stand discharged.
With due respect, we are unable to concur with the learned Judge, who in his idt has given no reason for apply- ing Section 428 of the new Code to a case decided before the commencement thereof.
4. In the result, the petition fails and the same is hereby dismissed.