VERY IMPORTANT POINT
(By Majority of 2 : 1)
It is permissible for an accused who has been convicted and sentenced to imprisonment in two criminal cases to claim the benefit of set off of under trial detention as envisaged in Section 428 Cr.P.C. 1973 in both cases. The view expressed by the two Judge Bench of Supreme Court in Raghubir Singh v. State of Haryana to the contrary is dissented from.
(Edition querry : Whether this judgment will help the undertrials in future or will lead to another protracted litigation for settlement of law for them has to be waited since two Judge ruling in Raghubir Singh s case plus dissenting opinion in this ruling will make it a 3 Judge ruling against them which may be argued to over rule majority ruling in this judgment in future.)

Headnote:Criminal Procedure Code, 1973 -Section 428-Setting off of period of under-trial detention by the accused against the sentence of imprisonment-Meaning of the words "of the same case"-Respondent was arrested on the same day in connection with two criminal cases-He has been convicted and sentenced to imprisonment in both criminal cases-He remained in jail as an under-trial prisoner during the same period in both cases-Is it permissible for him to claim the benefit of set off envisaged in Section 428 Cr.P.C. in both cases? (Yes, by Majority of 2 : 1)-Whether two Judge Bench case of Supreme Court in Raghubir Singh s case holding that accused cannot claim a double benefit correct? (No, by Majority of 2 : 1)-Appeal dismissed by Majority-Case law discussed (Cross Ref: Cr.P.C. 1973-Section 427).
       Per Thomas, J.
       Held : Reading Section 428 of the Code in the above perspective, the words "of the same case" are not to be understood as suggesting that the set off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words "of the same case" were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words. (Para 17)
       We have no reason to think that the High Courts mentioned above have gone wrong in taking the view that Section 428 of the Code permits the accused to have the period undergone by him in jail as an under-trial prisoner set off against the period of sentence imposed on him irrespective of whether he was in jail in connection with the same case during that period. We therefore, respectfully dissent from the view expressed by the two Judge Bench of this Court in Raghubir Singh v. State of Haryana, 1984(4) SCC 348. (Para 20)
       Per Phukan, J. (agreeing with Thomas, J.)
       Held : The only question which according to me needs consideration is true effect of the expression "same case" as appearing in Section 428 of the Code of Criminal Procedure. The provision is couched in clear and unambiguous language and states that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be one undergone by him during investigation, inquiry or trial in connection with the "same case", in which he has been convicted. Any other period which is not connected with the said case cannot be said to reckoneable to be for set off. The view of learned Brother Mr. Justice Thomas according to me accords the legislative intent. Acceptance of any other view would be necessary either adding or subtracting words to the existing provision; which would not be a proper procedure to be adopted while interpreting the provision in question. I am, therefore, in respectful agreement with the views expressed by my learned Brother Mr. Justice Thomas. (Paras 43 and 44)
       Consequently held : In the result we dismiss this appeal. (Para 21)
       (Per Sethi, J. dissenting)
       Held : Generally speaking the "same case" would thus mean "same transaction" for which the accused has been tried. Two different criminal cases, therefore, cannot be treated to be the "the same case" in relation to an accused for the purposes of determining the applicability of Section 428 of the Code. (Para 30)
       After going through the scheme of the Code and the object for which Section 428 was incorporated, I have reached the conclusion that the law laid down by this Court in Raghubir Singh s case (supra) does not require any review or a new interpretation. Taking any other view would amount to legislating and amending the plain meanings of the section. Giving a contrary interpretation may, in some cases, be against the public policy. Any person accused of a heinous crime, in that even, be at liberty to commit minor offences and being under trial prisoner in the main case, eventually may not get any imprisonment of law for the minor offences committed by him. It cannot be the object of civilised criminal jurisprudence to encourage the repetition of crime by adoption of an approach of liberality. The commercial approach of sale of commodities providing for purchasing of one expensive item and getting three free with it, cannot be imported into criminal justice system. (Para 35)
       Facts of this case are that the respondent was arrested on 29th November, 1995 in connection with CR 707/95 registered at Khar Police Station, Mumbai. During the investigation it transpired that he was also involved in the offences registered vide CR 737/95 on 29th November, 1995 Santacruz Police Station. He was shown arrested in both crime numbers. After being chargesheeted in both the cases, he was tried separately. In one of the cases he was convicted and sentenced under Sections 395 and 397 of IPC on 3.4.1998. The learned Judge held that the accused was entitled to set off under Section 428 of Cr.P.C. for the period of custody already undergone. He was convicted in the second case for the offences punishable under Section 392, 395 of IPC and held entitled to set off under Section 428 of Cr.P.C. The respondent prayed for his release as according to him, he had already served sentences. Relying upon the Government Resolution dated 7th September, 1974 the Jail Authorities refused to release the respondent on the ground that he could not be given set off in the second case as he had been given set off in the first case. The accused filed a petition in the High Court which was allowed by impugned order, holding that the convict was entitled to benefit of Section 428 of the Code in both the cases for the period of detention undergone by him during investigation, inquiry and trial. In the light of the view I have taken the impugned judgment of the High Court cannot be sustained and is liable to be set aside. Allowing the appeal filed by the State the judgment impugned is set aside holding that the respondent is not entitled to the benefit of set off in the sentence awarded to him in the second case. (Paras 40 and 41)

JUDGMENT

Thomas, J.-Leave granted.

2. An accused has been convicted and sentenced to imprisonment in two criminal cases. As he was arrested on the same day in connection with both the cases he remained in jail as an under-trial prisoner during the same period in both cases. The question mooted in this appeal is this : Is it permissible for him to claim the benefit of set off envisaged in Section 428 of the Code of Criminal Procedure (for short the Code ) in both cases? As the High Court of Bombay has answered the question in the affirmative by the impugned judgment this appeal is filed by the State of Maharashtra in challenge of the said view of the High Court.

3. A two Judge Bench of this Court has made observations in Raghubir Singh v. State of Haryana1 that on the fact situation in the said case the accused cannot claim a double benefit. In other words, learned Judges held that the accused can have the benefit of set off in one of those cases but not in both. When the said decision was cited before the High Court, the learned Single Judge who rendered the impugned judgment has stated that on the facts in the case of Raghubir Singh (supra) the question in issue involved here never arose. Learned Judge expressed the view that the accused is "entitled to the benefit of set off in the second case as well where he was in custody during the course of the trial". When the special leave petition in this case came up for consideration on 20.1.2000, we felt that since Raghubir Singh was decided by a two Judge Bench it would be appropriate that this matter is heard by a larger Bench so that a fresh look can be made on Section 428 of the Code.

4. As the accused respondent was benefited by the decision of the High Court he would have been released from jail. That might be the reason why he did not enter appearance in this appeal despite notice served on him. So we appointed Mr. Aparna Bhatt, Advocate, as amicus curiae. She presented the case for the accused very effectively after looking up all the decisions pertaining to the subject. We are indeed immensely grateful to her and we record our appreciation for the help rendered by her.

5. The facts out of which the aforesaid question has winched to the fore can be stated briefly thus : Respondent accused was tried in two cases. One was numbered SC 230 of 1995 and the other as SC 313 of 1996. He was arrested on 21.9.1995 in connection with both cases. The Sessions Judge who convicted him in SC 230 of 1995 on 3.4.1998, while sentencing him, directed that the accused would be entitled to the set off under Section 428 of the Code.

6. Subsequently a Sessions Court (we are not sure whether the same Sessions Court or a different one) convicted him in SC 323 of 1998 on 23.7.1998 and sentenced him to certain terms of imprisonment. The Sessions Judge concerned observed therein that the accused is entitled to the set off under Section 428 of the Code.

7. On 14.9.1998 the respondent accused sent an intimation to the jail authorities that he is entitled to be released from jail since he has already served the sentences imposed on him in both cases. But the jail authorities refused to release him on the premise that he could not claim the benefit of set off in the second case "as he had been given set off in the first case". The jail authorities did so on the strength of a Resolution dated 7.9.1974 adopted by the Government of Maharashtra. That resolution reads thus :

"If a prisoner is convicted in different cases, and different set off period is granted by different courts then in that case maximum period of set off in one case should be granted to prisoners, as other set off period will be merged in the set off which is the maximum."

8. When the prisoner challenged the decision of the jail authorities before the High Court learned Single Judge observed that the construction placed by the authorities on the said Government Resolution "is completely contrary to the interpretation of Section 428 of the Code and

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2001 Supreme(SC) 885

Cases Referred (7)