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Aditya Ramkrishna Vs. the State of Gujarat. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1974)15GLR670
AppellantAditya Ramkrishna
RespondentThe State of Gujarat.
Cases ReferredEmperor v. Subrao Sasharao A.I.R.
Excerpt:
- - it might be stated that the superintendent, ahmedabad central prison, appears to have declined to consider such request of the petitioner on the ground that the court convicting the petitioner having failed to give any such direction it was not competent to the jail authorities to grant the set-off claimed by the petitioner. the petitioner cannot be made to suffer for the fault of the court and the statutory right conferred upon him under section 428 cannot thereby be defeated. 6. an interesting point was raised on behalf of the respondent by mr......given by his surety for being discharged. the petitioner thereafter remained in jail as an under-trial prisoner. sessions case no. 15 of 1974 was decided on april 5, 1974 and the petitioner was convicted in the said case for the offences punishable under sections 408, 419, 465, 467, 468 and section 465 read with section 471 and section 467 read with section 47) of the indian penal code and sentenced to suffer rigorous imprisonment for nine months and fine of rs. 500/ in default to rigorous imprisonment for a further period of two months. an appeal, being criminal appeal no. 407 of 1974, preferred against the said order of conviction and sentence was summarily dismissed by this court on june 13, 1974. in sessions case no. 35 of 1974 the petitioner was convicted on april 8, 1974 of the.....
Judgment:

P.D. Desai, J.

1. Two complaints were registered against petitioner at the Kagdapith Police Station for offences punishable under Section 408 and other sections of the Indian Penal Code. These complaints were registered separately. In respect of the offences which were the subject-matter of one of the complaints, the petitioner was arrested on October 9,1973 and in respect of the offences which were the subject-matter of the other complaint, the petitioner was arrested on October 19,1973. Two separate charge-sheets were thereafter filed in the Court of the City Magistrate, Tenth Court, Ahmedabad against the petitioner and those cases were registered as Criminal Case No. 1542 of 1973 and Criminal Case No. 1596 of 1973. The learned City Magistrate, by a common order, committed the petitioner to stand trial before the Court of Sessions at Ahmedabad for offences punishable under Sections 408, 467 and 471 of the Indian Penal Code. Two Sessions Cases were thereupon registered against the petitioner, the said cases being Sessions Case No. 15 of 1974 and Sessions Case No. 35 of 1974. It appears that the petitioner was released on bail on December 11, 1973. However, he was rearrested on December 13, 1973 on an application given by his surety for being discharged. The petitioner thereafter remained in Jail as an under-trial prisoner. Sessions Case No. 15 of 1974 was decided on April 5, 1974 and the petitioner was convicted in the said case for the offences punishable under Sections 408, 419, 465, 467, 468 and Section 465 read with Section 471 and Section 467 read with Section 47) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for nine months and fine of Rs. 500/ in default to rigorous imprisonment for a further period of two months. An appeal, being Criminal Appeal No. 407 of 1974, preferred against the said order of conviction and sentence was summarily dismissed by this Court on June 13, 1974. In Sessions Case No. 35 of 1974 the petitioner was convicted on April 8, 1974 of the same offences for which he was convicted in the other case and a similar sentence was passed upon him. An appeal preferred against the said order of conviction and sentence, being Criminal Appeal No. 406 of 1974, was summarily dismissed by this Court on June 13, 1974. It would appear from the foregoing that the petitioner remained as an under trial prisoner from October 19,1973 so far as Sessions Case No. 15 of 1974 is concerned and as an under trial prisoner from October 19, 1973 so far as Sessions Case No. 35 of 1974 is concerned.

2. The petitioner has filed the present petition under Articles 226 and 227 of the Constitution of India praying that in view of the provisions of Section 428 of the Code of Criminal Procedure, 1973, the period of detention undergone by him during the investigation and trial and before the date of his conviction should be set-off against the term of imprisonment imposed upon him and that since the said period of detention, together with the period of sentence served by him so far in both the cases, exceeds the term of imprisonment imposed upon him, he ought to be set at liberty forthwith. It might be stated that the Superintendent, Ahmedabad Central Prison, appears to have declined to consider such request of the petitioner on the ground that the Court convicting the petitioner having failed to give any such direction it was not competent to the jail authorities to grant the set-off claimed by the petitioner.

3. The determination of the point raised in this petition depends upon the true construction of Section 428 of the Code of Criminal Procedure, 1973. The said section 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.

It would appear from an analysis of this section that it contemplates a set off being given to an accused person who has, on conviction, been sentenced to a term of imprisonment against 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. The section contemplates that in such a case the liability of the accused person to undergo imprisonment should be restricted to the remainder, if any, of the term of imprisonment imposed upon him. The section was inserted by the Joint Committee of the Parliament and while recommending the new provision it was pointed out by the Joint Committee that it was a distressing fact that in many cases accused persons are kept in prison for very long period as under-trial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as under-trial prisoner. This factor is some times taken into account by the Court when passing sentence and occasionally the sentence of imprisonment is even restricted to period for which a person has been under detention during the investigation, inquiry or trial of the case. However, according to the Joint Committee, this factor does not always enter into account in the imposition of sentence of imprisonment with the result 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. Section 428 was, therefore, inserted in the Code to remedy this unsatisfactory state of affairs and it provides for set-off of the period of detention as an under-trial prisoner against the sentence of imprisonment imposed on him. It is thus clear that the section imposes a duty on the authorities and a corresponding right on the accused person to have the period of detention during the investigation, inquiry or trial of a case set-off against the term of imprisonment imposed upon him on his conviction for an offence.

4. Now, in the present case, it is not in dispute and it cannot possibly be disputed, that the petitioner has remained as an under-trial prisoner for a fairly long period. In one case he was an under-trial prisoner for a period of 175 days on the date of his conviction and in the other case he was an under-trial prisoner for a period of 165 days on the date of his conviction. While passing the order of sentence of imprisonment the Sessions Court ought to have given suitable direction providing for set-off of the period of detention as an under-trial prisoner against the term of imprisonment and restricted the liability of the petitioner to undergo imprisonment to the remainder of the term of imprisonment imposed upon him. The Sessions Court, however, omitted to give such a direction presumably due to oversight. The petitioner cannot be made to suffer for the fault of the Court and the statutory right conferred upon him under Section 428 cannot thereby be defeated. It appears to us, therefore, that this is a fit and proper case in which we should issue a writ directing the jail authorities to give effect to the provisions of Section 428 of the Code and to give set-off to the petitioner in respect of the period of detention undergone by him during the investigation, inquiry or trial of each case. The petitioner, as stated earlier, was arrested on October 9, 1973 and October 19, 1973. Even taking the last-mentioned of the two dates, the petitioner has as on this day been in jail for a period of more than nine months. Taking the period of detention as an under-trial prisoner and the period of sentence which he has served since the date of his conviction together, it is not in dispute that he has been in jail for a period more than nine months. Consequently, a writ will issue directing the jail authorities that the petitioner should be deemed to have served out the substantive sentence of imprisonment served upon him so far as both the criminal cases are concerned.

5. Mr. Deepak Trivedi, who assisted the Court as amicus curiae, urged that the benefit of the provisions of Section 428 was available even in respect of the sentence of imprisonment imposed in default of the punishment of fine and that since in the present case the petitioner has been in jail as an under-trial prisoner and after his conviction for a period of nearly ten months and ten days, the period for which he has been in jail In excess of nine months should be set-off against the sentence of imprisonment in default of fine imposed upon him. We are unable to accede to this argument. Section 53 of the Indian Penal Code prescribes different punishments to which offenders are liable under the provisions of the said Code. It is clear from a bare reading of the said section that punishment of imprisonment and punishment of fine are two distinct punishments. Section 64 of the Indian Penal Code authorises the Court to impose sentence of Imprisonment for non-payment of fine and inter alia provides that it would be competent to the Court which sentences an offender to direct by the sentence that in default of payment of the fine, the offender shall suffer imprisonment for a certain term which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence. Reading these two sections together, there is no manner of doubt that a substantive sentence of imprisonment for a term and a sentence of imprisonment for a term in default of payment of fine are two different sentences and that a sentence of imprisonment in default of fine is intended to operate in addition to a substantive sentence of imprisonment. The provisions of Sections 29 and 30 of the Code of Criminal Procedure, 1973 also indicate that a sentence of imprisonment in default of payment of fine can be awarded, subject to certain limitations mentioned in Section 30, in addition to a substantive sentence of imprisonment for the maximum term which the Court is entitled to impose under Section 29. It is thus clear that a substantive sentence of imprisonment is different than or distinct from a sentence of imprisonment for a term imposed in default of fine. Now, if we turn to Section 428, it speaks of an accused person who has on conviction been sentenced to imprisonment for a term and it is to such a person that the benefit of set-off is available. The emphasis is on sentence of imprisonment for a term imposed upon a person on his conviction which sentence, earlier pointed out, is distinct and different from the sentence of imprisonment awardable in default of fine. It appears to us, having regard to the scheme of the Indian Penal Code and the Code of Criminal Procedure and the language employed in and the object underlying the section in question, that its beneficent provisions would be available only to a person who has been substantively sentenced to imprisonment for a term. There is no indication express or implied, that the legislature intended to make available the benefit of Section 428 to an accused person who has been sentenced to a term of imprisonment in default of payment of fine. In our opinion, therefore, so far as the sentence of imprisonment in default of payment of fine is concerned, the petitioner would not be entitled to a set-off in respect of the period of the detention as an under-trial prisoner. We might mention that in Emperor v. Subrao Sasharao A.I.R. 1926 Bombay 62 a Division Bench of the Bombay High Court his taken the view that Sub-section (1) of Section 35 of the Code of Criminal Procedure, 1898 did not permit the passing of concurrent sentences of imprisonment in default of fine imposed for two or more offences. This decision supports the aforesaid view which we are inclined to take since in the context of a somewhat analogous provision it holds that only substantive punishments of imprisonment inflicted upon a person convicted at one trial of two or more offences could be ordered to run concurrently.

6. An interesting point was raised on behalf of the respondent by Mr. G.T. Nanavati, learned Assistant Government Pleader, and the point was that in cases where an accused person has been substantively sentenced to a term of imprisonment in two different cases and the sentences are directed to run concurrently, as in the present case, the operation of Section 428 would be restricted to the previous detention, if any, undergone by such person during the investigation, inquiry or trial of each case separately and that merely because such an accused person might have been in jail as an under-trial prisoner in one case he could not be entitled to set-off that period so far as the sentence imposed upon him in the other case is concerned although such sentence might have been directed to run concurrently. It is not necessary for us in the instant case to express any opinion on the validity or otherwise of this contention since, as pointed out earlier, the petitioner has been an under-trial prisoner in both the cases and even taking the latter date of arrest of the petitioner, he has served out his substantive sentence of imprisonment if set-off is given to him for the period during which he was in detention as an under-trial prisoner in each case. In these circumstances we do not propose to express any opinion on the contention advanced by Mr. Nanavati.

7. In the result, the writ petition succeeds and is allowed. A writ will issue to the Superintendent of the Ahmedabad Central Prison directing him that the petitioner shall be deemed to have served out his substantive sentence of imprisonment in Sessions Case No. 15 of 1974 and Sessions Case No. 35 of 1974 and that he shall be detained in jail only in so far as he is required to undergo imprisonment in default of payment of fine. Orders accordingly.

We are beholden to Mr. Deepak Trivedi for the assistance that he has rendered to us appearing as amicus curiae.


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