1. "This petition is filed by the petitioners/appellants [A-1 and A-2] under Section 428 of Cr.P.C., seeking to set-off remand their remand period from 28-8-2007 to 29-11-2007 in Criminal Appeal No. 1458 of 2009 and consequently direction may be given to the Jail Superintendent of Prisoners Agricultural Colony, Cherlapalli, Ranga Reddy district to add the remand period of the petitioners.

2. The petitioners are A-1 and A-2 in S.C.No. 222 of 2008 on the file of the Court of II-Additional Sessions Judge, Nalgonda at Suryapet. The petitioners were prosecuted as A-1 and A-2 in the aforesaid sessions case along with two other accused for the offences punishable under Section 302 read with Section 34 of IPC and Section 307 read with Section 34 of IPC. The petitioners along with two others were found guilty and they were convicted and sentenced lo suffer imprisonment for life.

3. Then case of petitioner is that at the time of conviction set-off under Section 428 Cr.P.C. was not granted to the petitioners because life imprisonment was imposed.

4. Sri D. Purnachandra Reddy, learned counsel appearing on behalf of the petitioners submit that questioning the same the petitioners along with two other accused approached this Court by way of Criminal Appeal No. 1458 of 2009 and the said criminal appeal and the same was partly allowed, vide judgment dated 3-3-2014. Consequently, this Court set aside the conviction and sentence inflicted on A-3 and A-4 and confirmed the conviction and sentence inflicted on A-1 and A-2 without any observation with regard to set-off the remand period of A-1 and A-2 from 28-8-2007 to 29-11-2007 under Section 428 Cr.P.C.

5. Learned counsel further submits that under Section 428 Cr.P.C. period of detention undergone by the accused to be set-off against the sentence of imprisonment where an accused has undergone during the investigation, inquiry or trial of the same case even before the date of such conviction. Accordingly, 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.

6. Learned counsel submits that before the commencement of trial, the petitioners were arrested in Crime No. 62 of 2007 of P.S. Mothey on 28-8-2007 and released on bail on 29-11-2007. The remand period of petitioners is 94 days. Because set-off was not granted by the learned Sessions Judge in S.C.No. 222 of 2008. these 94 days remand period was not added to the petitioners imprisonment period as is evident from the Nominal Roll of the petitioners, the remand period is shown as zero.

7. On the other hand, learned Public Prosecutor appearing on behalf of the State does not oppose the present petition and submits that as per the settled rule of law and the amendment carried out it Section 428 Cr.P.C. by Act No. 25/2005 with effect from 23-6-2006, the period of detention shall be set-off.

8. Section 44 convenience is re-produced as under:

Section 428 Cr.P.C. Period of detention undergone by the accused to be set-off against the sentence of imprisonment :-

Where an accused has, on conviction, been sentenced to imprisonment for a term [not being imprisonment in default of payment of fine], the period of detention, if any, undergone by him during the investigation, inquiry or trial of trial of the same case and before the date of such conviction, shall be set 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 433-A, such period of detention shall be set off against the period of four years referred to in that section.

9. In addition to above, clarification was made by the Hon'ble Supreme Court in Bhagirath v. Delhi Administration reported in AIR 1985 SC 1050, whereby held as under:

14. The reasoning in Kartar Singh, AIR 198