1. The question regarding the scope of Section 428 of the Criminal P.C. 1973, is the principal question that is required to be decided in this matter. A Division Bench of this Court consisting of J. B. Mehta and P. D. Desai. JJ., before whom this Special Criminal Application came up for final hearing found that there was a conflict of decisions between different judgments delivered by this High Court. In Aditya Ramkrishna v. State, (1974) 15 Gui LR 670, the game Division Bench of J. B. Mehta and P. D. Desai, JJ. was dealing with a case where the sentence of imprisonment was imposed after the new Criminal P.C. of 1973 (hereinafter referred to as 'the new Code1) came into force. P. D. Desai, J., speaking for the Division Bench in that case had pointed out that Section 428 of the new Code 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 on him on his conviction for an offence. The Court imposing the punishment should, therefore, give suitable direction providing for set-off of the period of detention of an under-trial prisoner against the term of imprisonment and restrict the liability of the accused to undergo imprisonment to the remainder of the term of imprisonment imposed upon him. If the Court has omitted to give such a direction due to oversight, the accused cannot be made to suffer for the fault of the Court and the statutory right conferred upon him cannot be allowed to be defeated. The Division Bench also held in the case of Aditya Ramkrishna that a substantive sentence of imprisonment is different from or distinct from a sentence of imprisonment for a term imposed upon default of fine. Having regard to the scheme of the Indian Penal Code and the Criminal P.C. and the language employed in and the object underlying Section 428, its beneficent provisions would be available only to a person who has been substantively sentenced to imprisonment for a term and the Division Bench held that the sentence of imprisonment in default of payment of fine cannot be set-off against the period of detention as an under-trial prisoner. It may be pointed out that in that particular case the accused was arrested prior to coming into force of the new Code and the actual sentence of imprisonment was passed after the new Code came into force. If the new Code were not to apply to pending proceedings and the sentences imposed upon the accused were to be considered to have been imposed under the provisions of the old Criminal P. C, 1898. (hereinafter referred to as 'the old Code'), the question was required to be considered whether the benefit of Section 428 of the new Code would be available to the accused and the Division Bench in Aditya Ramkrishna's case held that the beneficent provisions of Section 428 of the new Code would be available to such an accused.
2. Thereafter a different view was taken by another Division Bench consisting of S. H. Sheth and M. C. Trivedi. JJ. in two decisions. One was the decision in Criminal Appeals Nos. 356 and 424 of 1974 decided on September 17, 1974 (Gui) and the other was the decision in Criminal Appeals Nos. 863 of 1972 and 40 of 1973 decided on September 10, 1974 (Guj). S. H. Sheth and M. C. Trivedi. JJ held that in the light of the decision of a Full Bench of this Court in Criminal Appeal No. 279 of 1974 decided on May 3, 1974 :reported in 1976 Cri LJ 84) (Guj) the view taken in Aditya Ramkrishna's case was not correct. The Division Bench consisting of S. H. Sheth and M. C. Tri-vedi, JJ. in terms observed that because the Division Bench consisting of J. B. Mefata and P. D. Desai, JJ., in Aditya Ramkrishna's case (1974) 15 Guj LR 670 had not got the benefit of the Full Bench decision, the view in Aditya Ramkrishna's case was inconsistent with the Full Bench decision and the Division Bench of S. H. Sheth and M. C. Trivedi, JJ. held that in view of the Full Bench 4ecision, pending appeals had to be disposed of under the old Code which did not contain any provision corresponding to Section 228 of the new Code and, therefore, to extend the benefit of Section 428 of the new Code to a pending proceeding in appeal would amount to extending the provisions of the new Code to the pending appeals, which was not permissible in view of the Full Bench decision.
3. Thereafter the present Special Criminal Application, namely, No. 105 of 1974 came up for hearing before J. B. Mehta and P. D. Desai, JJ. and they came to the conclusion that the observations of the Full Bench in Criminal Appeal No. 279 of 1974 :reported in 1976 Cri LJ 84) (Guj) in no way militated against the decision in Aditya Ramkrishna's case (1974) 15 Guj LR 670 and in view of this conflict between the decisions of the two different Division Benches and in view of the fact that J. B. Mehta and P. D. Desai, JJ. were unable to agree with the conclusions of S. H. Sheth and M. C. Trivedi, JJ. the entire case has been referred to a larger Bench and the matter has now come up for hearing before us.
4. After the order of reference to the larger Bench was made, the Supreme Court in Boucher Pierne Andre v. Superintendent, Central Jail, Bihar, Writ Petition No. 505 of 1974 decided on November 21, 1974 :reported in 1975 Cri LJ 182) (SC), has considered the sconce of Section 428 of the new Code. In the case before the Supreme Court the petitioner was arrested on November 10, 1971 in connection with an offence of theft which took place in the night between October 31, 1971 and November 1, 1971 in Rajas-than Emporium at Ashoka Hotel, New Delhi. He was tried by the Additional Sessions Judge, Delhi, and by an order dated July 16, 1973 he was convicted of the offence punishable under Section 380 of the Indian Penal Code and sentenced to rigorous imprisonment for four years and a fine of Rs. 10,000/- and in default of payment of fine, further rigorous imprisonment for one year. An appeal preferred by the petitioner to the High Court of Delhi failed and his conviction was confirmed but the substantive sentence of imprisonment was reduced to two years and the fine was enhanced to Rs. 15,000/-and the sentence of one year's rigorous imprisonment in default of payment of fine was retained. The order of the High Court in appeal was passed on April 4, 1974, that is, after the coming into force of the new Code. It may be mentioned at this stage that the new Code came into force with effect from April 1, 1974. According to the petitioner before the Supreme Court, his term of imprisonment came to an end on August 12, 1974 and his detention since that date was contrary to law and that is why the writ petition was filed before the Supreme Court.
5. On the above facts the question which arose for determination before the Supreme Court was as follows :-
Is Section 428 confined in its application only to cases where a person is convicted after the coming into force of the new Criminal P. C, or does it also embrace cases where a person has been convicted before but his sentence is still running at the date when the new Code of Criminal Procedure came into force?
After examining the language of the Section, Bhagwati, J. speaking for the Supreme Court observed-
The applicability of Section 428 was resisted only on the ground that it does not apply to a case where an accused person has been sentenced under the old Criminal P.C. But if the sentence imposed on the petitioner, though under the old Criminal P. C, is to be regarded, for the purposes of the new Code, as a sentence passed under the new Code and all the consequences and incidents are to be worked out on that basis, Section, 428 must clearly be held to be applicable to the case of the petitioner and his liability to undergo imprisonment must be restricted to the remainder of the term imposed on him, after setting off the period for which he was detained during the investigation, inquiry and trial of the case against him.
He also observed-
Section 428 does not seek to set at naught the conviction already recorded against the accused person. The conviction remains intact and unaffected and so does the sentence already undergone. It is only the sentence, in so far as it yet remains to be undergone, that is reduced. The Section operates prospectively on the sentence which yet remains-to be served and curtails it by setting off the period of detention undergone by the accused person during the investigation, inquiry or trial of the case. Any argument based on the objection against giving retrospective operation is therefore, irrelevant.
The Supreme Court in this case also held that Section 428 applies not only in relation to a substantive sentence of imprisonment but also in relation to a sentence of imprisonment in default of payment of fine. The Supreme Court observed-
Section 428 is absolute in its terms. It provides for set-off of the pre-cohviction detention of an accused person against the term of imprisonment imposed on him on conviction whatever be the termy of imprisonment imposed and whatever be the factors taken into 'account by the Court while imposing the term of imprisonment. It does not say that where the pre-conviction detention of an accused person has already been taken into account by the Court while imposing the term of imprisonment on conviction, no set-off of such pre-conviction detention shall be permitted, and of the legislature has not introduced any such exception, we cannot read it into the Section by a process of judicial construction. To read such an exception into the Section would be to do violence to the language of the Section and to read it with words which are not there. That is clearly impermissible according to well recognised canons of construction.
In this case the Supreme Court approved of the decisions of the Andhra Pradesh High Court in Biddika Jagannadham v. Superintendent. Central Jail, Vishakhapatnam (1974) 2 Andh PLJ 302) and also of the decision of the Bombay High Court in Narayanan Nambeesan v. The State of Maharashtra. The decision of the Bombay High Court is reported in : (1974)76BOMLR690 . The Bombay High Court in Narayanan Nambeesan's case l}as held that the Section 428 being procedural in nature, the benefit of the procedure given in' the Section for calculating the total period of imprisonment which a convict has to undergo will be equally available to those convicted prior to April 1, 1974, the date on which the new Code came into operation. Furthermore, as the provisions of Section 484(2)(b) in terms state that all sentences passed and orders made under the old Cole shall be deemed to have been passed and made under the new Code, the benefit of Section 428 of the new Code becomes equally available to persons who were convicted and sentenced under the old Code.
6. In view of the decision of the Supreme Court mentioned above, it is obvious that it must be held that the view taken by J. B. Mehta and P. D. Desai, JJ. in Aditya Ramkrishna's case (1974) 15 Guj LR 670 was the correct view to the extent to which it proceeded upon the footing that the benefit of the Section is available to those persons whose cases were pending at the time when the new Code came into force or who had already been sentenced to terms of imprisonment and whose sentence was running at the time when the new Code came into force. However, in view of the decision of the Supreme Court in Boucher Pierre Andre's case (1975 Cri LJ 182) (SC) it must be held that the conclusion of the Division Bench in Aditya Ramkrishna's case that the benefit of Section 428 of the new Code would be available only to a person who has been substantively sentenced to imprisonment for a term and would not apply in the case of sentence of imprisonment in default of payment of fine, is not correct. To that extent, therefore, the decision in Aditya Ramkrishna's case must be held to have been overruled by the decision of the Supreme Court in Boucher Pierre Andre's case.
7. In view of the above conclusions, we passed the order on December 21, 1974 that the benefit of Section 428 of the new Code would be available to the present accused even though the sentence of imprisonment was imposed upon him before the coming into force of the new Code.