1974 Supreme(SC) 395

SUPREME COURT OF INDIA
Y.V. CHANDRACHUD AND P.N. BHAGWATI, JJ.
Mr. Boucher Pierre Andre, Petitioner
Versus
Superintendent, Central Jail Tihar, New Delhi and another, Respondents.
Writ Petn. No. 505 of 1974, D/- 21-11-1974.

Headnote:Code of Criminal Procedure (2 of 1974), Section 428–Scope of–conviction after trial under the code of 1898–Detention in default of payment of fine–Set off whether can be claimed for detention pending investigation and trial.

       Where in a case the accused remained in custody pending inquiry and trial and after completing his term of imprisonment he claimed set off of the period undergone during his detention pending inquiry and trial under the old code against his further term of imprisonment in default of payment of fine and argument advanced on behalf of the State was that he cannot claim set off as the Trial was under the old code.

       Held, that this section, on a plain natural construction of language, posits for its applicability a fact situation which is described by the clause "where an accused person has, on conviction, been sentenced to imprisonment for a term." There is nothing in this clause which suggests, either expressly or by necessary implication that the conviction and sentence must be after coming into force of the new Code of Criminal Procedure. The language of the clause is neutral.

       Held further, that the section 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 period for which an accused person has been detained during investigation, inquiry or trial the case is liable to be set off not only against the term of substantive imprisonment but also against the term of imprisonment in default of payment of fine. (Decisions of the Andhra Pradesh and the Bombay High court approved and decision of the Delhi High Court overruled.)

       (Paras 3 & 6)

       Code of Criminal Procedure (2 of 1974), Section 428–Applicability of–Section whether retrospective–Accused serving sentence before the coming if the new Code–Accused whether can claim benefits of set off as envisaged under the section.

       Held, that where an accused person has been convicted and he is still serving his sentence at the date when the new Code of Criminal Procedure came into force, Section 428 would apply and he would be entitled to claim that the period of detention undergone during the investigation, inquiry or trial of the case should be set off against the term of imprisonment imposed on him. This construction of the section does not offend against the principle which requires that unless the legislative intent is clear and compulsive, no retrospective operation should be given to a statute. On this interpretation, the section is not given any retrospective effect. It does not seek to set at naught the conviction already recorded against the accused person. 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.

       Held further that section 428 is absolute in its terms. It provides for set off of the pre-conviction detention of an accused against the term of imprisonment imposed on him on conviction and if the legislature has not introduced any exception, it can not be read into the section by a process of judicial construction.

       (Paras 3 & 7)

       Code of Criminal Procedure (2 of 1974), Section 484(1) & (2) (b), Section 428–Sentence imposed in a trial under the old Code–Effect of such sentence on passing of the new Code–Set off claimed u/s 428 of the new Code–Applicability.

       Held, that Sub-section (1) of Section 484 repeals the old Code of Criminal Procedure, but Sub-section (2), clause (b) provides that notwithstanding such repeal, all sentences passed under the old Code of Criminal Procedure shall be deemed to have been passed under the corresponding provisions of the new Code. The sentence of imprisonment and fine passed under the provisions of the old Code of Criminal Procedure must, therefore, be deemed to have been passed under the provision of the new Code of Criminal Procedure. And as such, if the sentence imposed, though under the old Code of Criminal Procedure, is to be regarded, for the purposes of the new Code, as a sentence 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.

       (Para 40)