Section 428 of the Code of Criminal Procedure only allows set-off for detention periods directly related to the same case, and not for periods related to other cases.

JUDGMENT :

CRIMINAL APPEAL NO. 1371 OF 2025

1. The Superintendent of Prison, Central Prison - 1, Puzhal, Chennai, Tamil Nadu and the Inspector of Police, Q Branch, CID Police Station, Perambalur District, Tamil Nadu,¹[appellants] are in appeal against the judgment and order dated 11.09.2020 of a learned Judge of the High Court of Judicature at Madras. By reason of the impugned order, a petition of the respondent,²[Venkatesan] under Section 482 of the Code of Criminal Procedure, 1973,³[Cr. PC] succeeded. In such petition, Venkatesan had sought that the remand period from (i) 24.03.2005 to 28.02.2006; (ii) 22.04.2008 to 22.04.2009 and (iii) 21.04.2014 to 23.12.2014 as undertrial prisoner produced under P.T. (Prisoner Transit) warrant in S.C. No.2 of 2002, under Section 428 of the Cr. PC., be set-off.

2. Venkatesan belongs to Tamil Nadu Liberation Army, an organisation banned by the Government of Tamil Nadu. With the objective of liberating Tamil Nadu from the Union of India, Venkatesan resorted to violent activities and through armed struggle has been involved in several incidents of crime. Upon full-fledged trial, Venkatesan has been found guilty in Crime No.346 of 1993, S.C. No.12 of 2001 and DS.C. No.2 of 2002.

3. The question of law that we are tasked to decide is, whether on facts and in the circumstances, Venkatesan was entitled to the set-off for the three periods granted by the High Court in terms of Section 428, Cr. PC.

4. Both Section 427 and Section 428, Cr. PC, appear under Chapter XXXII of the Cr. PC titled “EXECUTION, SUSPENSION, REMISSION AND COMMUTATION OF SENTENCES”. Section 428 envisages, upon a conviction being recorded in a particular case followed by a sentence to imprisonment for a term, set-off of pre-sentence detention period during the investigation, enquiry or trial of the same case. However, Section 427(1), Cr. PC, ordains that when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.

5. Venkatesan was arrested and remanded to judicial custody on 08.03.1998 in Crime No.234 of 1997 registered at Andimadam Police Station. After completion of investigation, police report under Section 173(2), Cr. PC was filed. Besides Crime No.234 of 1997, Venkatesan was arraigned as A-2 in S.C. No.2 of 2002. Cognizance was taken in S.C. No.2 of 2002 on the file of the Sessions Court for Exclusive Trial of Bomb Blast Cases, Poonamallee, Chennai. Venkatesan was released on bail in S.C. No.2 of 2002 on 24.3.2005. Though released on bail, Venkatesan was not released from custody since he was involved in other crime cases. Therefore, Venkatesan was again produced on PT warrant before the trial court and his remand extended till 28.02.2006. Venkatesan was convicted on 22.04.2008 in Crime No.346 of 1993 registered at Kullanchavadi Police Station; as such, he was produced under PT warrant in S.C. No.2 of 2002 and remanded in custody till 22.04.2009. On 24.03.2014, Venkatesan was convicted in S.C. No.12 of 2001, and during his detention period, he was produced under PT warrant from 21.04.2014 to 23.12.2014 in S.C.No.2 of 2002. Thereafter, he was convicted on 29.11.2019 in S.C. No.2 of 2002 for the offences punishable under Sections 120-B, 148, 450, 395 r/w 397, 307 and 332 of IPC and sentenced to rigorous imprisonment varying from 3 years to 10 years and fined. The trial court rejected Venkatesan’s plea for setting off his remand period produced under PT warrant under Section 428, Cr. P.C reasoning that according to Section 428, Cr. PC, there is no mention of inclusion of the period during which the accused is produced on the strength of P.T. warrant while undergoing imprisonment in a different case.

6. The judgme