TMI Blog2009 (11) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... llant was also granted the benefit of set-off for the period of detention he had already undergone under Section 428 Cr.P.C. This application has been filed on behalf of the appellant, Atul Manubhai Parekh, for a direction that he be entitled to set-off of 30 days in the present case against the detention of 15 days already undergone by him. 2. The short point involved in this application is whether a person, who has been convicted in several cases and has suffered detention or imprisonment in connection therewith, would be entitled to the benefit of set-off in a separate case for the period of detention or imprisonment undergone by him in the other cases. 3. Ms. Kamini Jaiswal, learned Advocate appearing for the appellant, submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for introducing Section 428 into the Code of Criminal Procedure, 1973 by amendment. The Hon'ble Judges extracted a portion of the objects and reasons, wherein it was stated 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. Their Lordships emphasized that the new clause provides for the setting off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on him. Their Lordships interpreted the same to mean that the purpose of introduction of Section 428 into the Code was to give the convicted person the right to reckon the period of his sentence of imprisonment from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latter case. It was held that in order to secure the benefit of Section 428 of the Code, the prisoner has to show that he had been detained in prison for the purpose of investigation, enquiry or trial of the case for which he is later on convicted and sentenced, but he cannot claim a double benefit under Section 428, i.e., the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set-off against the period of imprisonment imposed for committing the latter offence as well. Their Lordships further held that if a person is undergoing a sentence of imprisonment on being convicted of an offence in one case during the period of investigation, enquiry or trial of some other case, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of fine, 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. Provided that in cases referred to in Section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section. 8. From the wording of Section 428 it is clear that what is to be set-off is the period of detention, if any, undergone by the convict during the investigation, enqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imprisonment at frequent intervals. If the period of pre-trial detention in various cases is counted for set-off in respect of a subsequent conviction where the period of detention is greater than the sentence in the subsequent case, the accused will not have to undergo imprisonment at all in connection with the latter case, which could not have been the intention of the legislature while introducing Section 428 in the Code in 1973. The reference made in the several decisions cited before us to Section 427 Cr.P.C. appears to be a little out of focus since the same deals with several sentences passed in the same case against the same accused on different counts which are directed to run concurrently. Section 428 Cr.P.C. deals with a differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee with concern that a large number of prisoners in the overcrowded jails of the country were undertrial prisoners and that Section 428 Cr.P.C. was introduced to remedy the unsatisfactory state of affairs by providing for setting-off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on the accused. 12. The decision in the case of Maliyakkal Abdul Azeez (supra) was rendered after the decision in Najakat Alia's case (supra) and we respectfully follow the same as it reiterates the law laid down in the earlier cases such as in the case of Anne Venkateswara Rao (supra), Raghubir Singh (supra) and Champalal Punjaji Shah (supra). 13. The facts on which the decision was rendered in Najakat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
