IMPORTANT POINT
Section 428 of Crpc makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case.

JUDGMENT

Altamas Kabir, J. —

1. Crl. M.P. No.13384 of 2009 has been filed in Criminal Appeal No.164 of 2004, which was disposed of by this Court by judgment and order dated 7th August, 2009, upholding the conviction of the appellant under Section 120-B and sentencing him to undergo rigorous imprisonment for a period of 15 days and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for a further period of 15 days. By the same order, the appellant 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 that the right of a convict to be allowed set-off in one case in respect of detention or imprisonment undergone by him in other cases, fell for the consideration of this Court in State of Maharashtra & Anr. vs. Najakat Alia Mubarak Ali, 1 [(2001) 6 SCC 311], wherein three Judges of this Court had occasion to consider the provisions of Section 428 Cr.P.C., and it was the majority view that the period of imprisonment undergone by an accused as an undertrial during investigation, enquiry or trial of a particular case, irrespective of whether it was in connection with that very case or other cases, could be set-off against the sentence of imprisonment imposed on conviction in that particular case. Their Lordships held that the words “same case” used in Section 428 do not suggest that set-off would be available only if the period undergone as an undertrial prisoner is in connection with the same case in which he was later convicted and sentenced to a term of imprisonment. According to Their Lordships, the said expression merely denoted the pre-sentence period of detention undergone by an accused and nothing more.

4. Ms. Jaiswal also referred to the Three-Judge Bench decision of this Court in State of Punjab vs. Madan Lal, 2 [(2009) 5 SCC 238], where also the provisions of Section 428 of the Code fell for consideration and the decision in Najakat Alia’s case was noticed with approval. While deciding the matter, the Hon’ble Judges had occasion to consider the objects and reasons 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 the date he was in jail as an undertrial prisoner and that the period of his being in jail as an undertrial prisoner would be added as a part of the period of imprisonment to which he was sentenced.

5. Ms. Jaiswal, therefore, submitted that in the light of the aforesaid decisions the petitioner was entitled to set off of all periods of detention unconnected with the case in which he has been convicted and sentenced. It was urged that the High Court had erred in rejecting the petitioner’s prayer for grant of set-off against periods of impris