Jagjit Singh, J.
(1) On behalf of Mr. Boucher Pierre Audre this petition was filed, under article 226 of the Constitution of India, for. issuing to the superintendent Central Jail Tihar and the Delhi Administration a writ in the nature of habeas corpus for the petitioner being set at liberty forthwith.
(2) The petitioner, who is a. national of France, along with one Monucher Gherimani alias Irani, a national of Iran, were tried by Shri M.K. Chawla, Additional Sessions Judge, Delhi. They along with one Charles Sobraj, who could not be arrested, were alleged to have entered into a criminal conspiracy leading to the committing of theft, on the evening of October 31, 1971, in the Rajasthan Emporium in Ashoka Hotel. By a clever dodge the Manager of the Emporium and another person who used to assist the Manager in his work were called to a suite in the hotel in occupation of one Miss Gloria and thereafter trying their hands and feet and administering some stupifying drug to them the keys of the Emporium were taken away and burglary was committed by removing jewellery worth many lakhs of rupees from the Emporium.
(3) The learned trial Judge acquitted Irani by living him benefit of doubt. Audre was, however, convicted under section 380 read with section 120B of the Indian Penal Code and was sentenced to rigorous imprisonment for four years and fine of Rs. 10,000 and in default of the payment of fine one year's further rigorous imprisonment.
(4) Against his conviction and sentence for the offence under section 380 read with section 120B of the Indian Penal Code an appeal was filed by Andre to this Court. That appeal was decided by R. N. Agarwal, J., on April 4, 1974. The learned Judge maintained the conviction but reduced the sentence of imprisonment from four years to two years by taking into consideration the fact that before being convicted the appellant 'was in jail as an undertrial for about 19 months'. The sentence of fine was, however, enhanced from Rs. 10,000 to Rs. 15,000. In default of the payment of fine the appellant was directed to under go rigorous imprisonment for one year.
(5) The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'New Code') came into force on April 1, 1974. Section 428 of the New Code reads as under :-
'428.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.'
(6) Relying upon the provisions of section 428 of the New Code the petitioner has claimed that his detention in the Central Jail Tihar 'is illegal and without authority of law' and he is, thereforee, entitled to be set at liberty forthwith. It wa,s stated in his petition that he had been arrested in connection with the theft case on November 10, 1971 and from that date has continuously been in detention. It was also averred that the maximum period of sentence imposed upon him by the judgment of this Court dated April 4, 1974 being only three years, i.e. two years substantive sentence and one year of imprisonment to be undergone in default of the payment of fine, so after allowing the set off in terms of section 428 of the New Code and giving him benefit of ninety days remission earned by him, he should have been released on August 12, 1974.
(7) From an affidavit filed by the Superintendent of the Central Jail Tihar it does appear that the petitioner was admitted in the Jail on December 6, 1971 and till September 16, 1974 had earned remission for satisfactory conduct for a total period of eighty-seven days.
(8) The correctness of the affidavit filed by the Superintendent Central Jail Tihar was not disputed by Mr. A. K. Gupta, learned counsel for the petitioner It was, thereforee, contended that after taking into consideration the period of earned remission and by setting off the period of detention undergone during the investigation, inquiry and trial of the case the petitioner should have been released on August 15, 1974 and his continued subsequent detention was illegal. While elaborating his contention Mr. Gupta sought to make out the following points:-
(I)The set off to be made under section 428 of the New Code is the duty cast on the officer in charge of the Jail or the other place in which a-person sentenced to imprisonment for a term may be confined for serving the sentence or in any case it is the responsibility of the executive and is not a function of the courts ;
(II)By virtue of the provisions of section 484(2)(b) the sentence passed on the petitioner has to be deemed to have been passed under the New Code and, thereforee, under section 428 of the New Code the liability of the petitioner was restricted to undergo only the remainder sentence after setting off the period of detention undergone by him during the investigation, inquiry and trial of the case;'
(III)The provisions of section 428 of the New Code being procedural in nature have to be given retrospective effect and also apply to all cases where sentences of imprisonment were passed on conviction on accused persons even before the coming into force of the New Code;
(IV)The sentence of imprisonment which was required to be served by the petitioner in default of payment of fine can as well be regarded to be a sentence of imprisonment imposed on him and, thereforee, the set off under section 428 of the New Code has as well to be made against the term of imprisonment in default of payment of fine; and
(V)Even if section 428 of the New Code in terms may not be applicable to imprisonment to be undergone by a convicted person in default of payment of fine still the beneficial principles of the said section should apply to imprisonment to be served in default of payment of fine.
(9) The Code of Criminal Procedure. 1898 (to be hereinafter referred to as the 'Old Code') was repealed by section 484 of the New Code. That section, relating to repeal and savings, is in the following terms :-
'484.(1) The Code of Criminal Procedure, 1898, is hereby repealed.
(2)Notwithstanding such repeal)-
(A)if, immediately before the date on which the Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial inquiry or investigation shall be disposed of, continued, held or made, as the case may 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 inquiry under Chapter xviii of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code;
(B)all notificatiofe published, proclamations issued, powers conferred, forms prescribed, local jurisdictions, defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the Old Code and which are in force immediatley 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)any sanction accorded or consent given under the Old Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Code and proceedings may be commenced under this Code in pursuance of such sanction or consent;
(D)the provisions of the Old Code shall continue to apply in relation to every prosecution against a Ruler within the meaning of article 363 of the Constitution.
(3)Where the period prescribed for an application or other proceeding under the Old Code had expired on or before the commencement of this Code, nothing in this Code shall be construed as enabling any such application to be made or proceeding to be commenced under this Code by reason only of the fact that a longer period thereforee is prescribed by this Code or provisions are made in this Code for the extension of time.
(10) There is no dispute that when the sentence of four years rigorous imprisonment and fine of Rs. 10,000 was passed on the petitioner by an Additional Sessions Judge the Old Code was in force. The appeal of the petitioner against his conviction and sentence was filed on September 14, 1973. As provided by clause (a) of sub-section (2) of section 484 the appeal had to be disposed of in accordance with the provisions of the Old Code as in force immediately before the coming into force of the New Code as if the New Code had not come into force.
(11) In the Old Code there was no provision relating to set off of the period of detention, undergone by a convicted person during the investigation, inquiry or trial of the case and before the date of conviction, against the term of imprisonment imposed on him. Generally but not always courts did take such period of detention into consideration while imposing the sentence of imprisonment. For that reason on the appeal filed by the petitioner his sentence of four years rigorous imprisonment was reduced to two years.
(12) Thus not only the sentence passed on the petitioner was under the Old Code but his appeal was also disposed of under the Old Code. Of course the said sentence, though pa,ssed under the Old Code, can be deemed to have been passed under the corresponding provisions of the New Code, as provided by section 484(2)(b). This, however, does not mean that the sentence can be deemed to have been passed under the New Code. There is a clear distinction between a sentence passed under the New Code and a sentence passed under the Old Code which by virtue of the deeming provision contained in section 484(2) (b) of the New Code is to be deemed to have been passed under the corresponding provisions of the New Code. In the Old Code, as already stated, there was no provision corresponding to section 428 of the New Code. The effect of the sentence being deemed to have been passed under the corresponding provisions of the New Code, thereforee, by itself did not attract the application of section 428 of the New Code. A legal fiction is to be limited to the purpose for which it was created and cannot be extended beyond that legitimate field. The reasoning of the learned counsel for the petitioner ignores the limitation placed by the words 'under the corresponding provisions of this Code', as appearing in clause (b) of sub-section (2) of section 428 of the New Code. It may also be mentioned that in a case (Sham Lal v. State-Criminal Miscellaneous Nos. 354 and 491 of 1971 Rangarajan, J. of this Court(1) had, after referring to the provisions of section 428(2)(b) of the New Code, taken the view that a sentence of imprisonment passed on an accused under the Old Code shall be deemed to have been passed under section 428 of the New Code. With very great respect we are unable to agree with that view for the reasons already stated above.
(13) The next submission of Mr. Gupta was that the provisions of section 428 of the New Code being procedural and not a matter of substantive law or something which would affect any substantive rights must be taken to have retrospective effect and in that connection reliance was placed on Sanardhun Reddy & others v. The State of Hyderabad & others : 2SCR344 . In that case the matter under consideration was the effect of the Hyderabad Special Tribunals Regulation (V) (5) of 1358-F as amended by Regulation of (30-10-49. Neither in section 243 of the Hyderabad Penal Code nor in section 311 of the Hyderabad Criminal Procedure Code mention was made as to how sentence of death was to be executed, though the form prescribed by the Hyderabad Code of Criminal Procedure for the warrant of execution of a death sentence referred to separating the head from the body of the prisoner. Before confirmation of the sentence of death by the High Court the Special Tribunals Regulation had already made a specific provision that any sentence of death passed by a Special Tribunal 'shall be carried into execution by causing the person sentenced to be hanged by the neck until he is dead.' Repelling the contention that the sentence of death as confirmed by the High Court was in view of the provisions of the Hyderabad Criminal Procedure Code not strictly appropriate their lordships of the Supreme Court observed as follows :-
'APPARENTLY,these provisions applied to all sentences which had remained unexecuted or were to be executed at the date of the amending Regulation, & thereforee they should govern the case of the petnrs. also. In our opinion, they must be taken to have retrospective effect, because the mode of the execution of a sentence can hardly be regarded as a matter of substantive law or something which would affect any substantive rights. In any event, the H.C., which upheld the conviction, had the power to inflict the sentence of death by hanging under the amended Regulation, & thereforee this point does not properly arise in a matter involving the question whether any relief under Art. 32 of the Constitution should be granted.'
(14) It is true that the presumption against retrospective construction has no application to enactment which affect only the procedure and practice of the courts. As was remarked by Lord Blackburn in Gardner v, Lucas, (1878) 3 App. Cas. 582 (3) 'Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be'. The provisions of section 428 of the New Code are, it seems to us, not procedural. Those have nothing to do with the procedure or practice of the court. The section confers a, right or an accused person who on conviction is sentenced to imprisonment for a term; to be set off against the imprisonment imposed on him the period of detention, if any, undergone by him during the investigation, inquiry or trial of the case and before the date of the conviction. Even the provisions of the section do not relate to the mode in which the imposed sentence of imprisonment is to be-executed. No advantage can, thereforee, be taken by the petitioner from the case of Janardhan Reddy (supra), (2). In another case decided by the Supreme Court, Sukhram Singh and another v. Smt. Harbheji : 3SCR752 it was laid down that a law is undoubtedly retrospective if the law says so expressly, but it is not always necessary to say so expressly to make the law retrospective. It was further observed :-
'RETROSPECTIONis not to be presumed for the presumption is the other way but many statutes have been regarded as retrospective without a declaration. Thus it is that remedial statutes are always regarded as prospective but declaratory statues are considered retrospective. Similarly sometimes statues have a retrospective effect when the declared intention is clearly and unequivocally manifest from the language employed in the particular law or in the context of connected provisions. It is always a question whether the legislature has sufficiently expressed itself. To find this one must look at the general scope and purview of the Act and the remedy the legislature intends to apply in the former state of the law and then determine what the legislature intended to do. This line of investigation is, of course, only open if it is necessary.'
(15) Before the coming into force of the New Code there was no statutory provision for giving set off the period of detention, if any, undergone by an accused person during the investigation, inquiry and trial of a case against the imposed sentence of imprisonment. Of course courts generally but not always took that fact into consideration while imposing sentences of imprisonment. As a remedial measure and for introducing consistency section 428 was incorporated in the New Code but from the wording of the section it appears the legislature did not intend to give it retrospective effect or even to make it applicable to persons who were sentenced to any term of imprisonment prior to the coming into force of the New Code. If section 428 had been given retrospective effect it would have resulted in double benefit to many accused persons, like the petitioner, in whose case the period of detention during the investigation, inquiry and trial had been taken into consideration in imposing the sentence of imprisonment. There, appears to be nothing in the New Code which may have expressly made the provisions of section 428 retrospective in effect. On any other recognised principles of interpretation as well, in our opinion, its retrospection cannot be presumed.
(16) In terms section 428 of the New Code has no application to any imprisonment that may have to be served by an accused person who on conviction is awarded sentence of fine either as the only sentence or addition to sentence for imprisonment for a term. It is not possible to agree with the contention that the imprisonment to be undergone by an accused person on conviction in default of payment of fine should be regarded as a sentence of imprisonment for a term. It follows that the fine of Rs. 15,000 imposed on the petitioner in addition to the sentence of imprisonment for a term of two years is by itself not a sentence of imprisonment. No question, thereforee, arises either of applying section 428 or its principles to imprisonment that may have to be undergone by the petitioner in default of the payment of fine.
(17) As we have held that the provisions of section 428 of the Code of Criminal Procedure are not to be taken to have retrospective effect so as to apply to persons who immediately before the date the New Code came into force were undergoing sentences of imprisonment passed under the Old Code so the petitioner is not entitled to have set off against the term of imprisonment imposed on him the period of his detention during the investigation, inquiry and trial of the case before the date of, his conviction. The provisions of the said section will also have no application if the fine imposed on him is not paid by him and he has to undergo imprisonment in default of the payment of fine. That being the position it is unnecessary in these proceedings to give any finding as to whether allowing set off in terms of section 428 of the New Code is a function of the courts or it is a duty cast on the officer in charge of the jail or the executive.
(18) Even after taking into consideration the remission earned by the petitioner for this good conduct in the jail the sentence of two year rigorous imprisonment imposed on him has not so far been served. After be has served the sentence of imprisonment unposed on him he may have to further undergo imprisonmeat for a furthar period of one year it default is made in paying the fine.
(19) The detention of the petitioner in the Central Jail Tihar for serving his sentence is legal and it cannot be said that be is being dotained illegally and without authority of law. The petition filed on his behalf for issuing a writ in the nature of habeas corpus is accordingly dismissed.