JUDGMENT [ PER : A. A. KUMBHAKONI, J.]

1. Rule. Rule made returnable forthwith. The learned APP waives service of the rule. By consent of parties, taken for final disposal at the admission stage itself, since very short issue is involved in the matter.

2. This writ petition is received by this Court though the jail. The petitioner by this writ petition invokes the writ jurisdiction of this Court under Article 226 of the Constitution of India, for claiming set off, as contemplated by section 428 of Code of Criminal Procedure (hereinafter referred to as “the Code” for the sake brevity). At present the petitioner is lodged in Nashik Road Central Prison, Nashik.

3. As the petition was received through jail, we requested Mr. Nitin Pradhan, the learned counsel who was present in the Court to assist as amicus. As usual, he readily accepted our invitation and has rendered his valuable assistance to us for which we hereby record our deep appreciation. We have also heard the learned APP for the State.

4. Undisputed facts of the case are as under- .

The petitioner was arrested in connection with an offence punishable under section 302 r/w section 201 of Indian Penal Code, on 30th February, 1992. The petitioner was tried by the Additional Sessions Judge, Malegaon and was convicted by a judgment and order dated 20th October, 1993. The operative portion of this judgment has required us to entertain this petition and deliver this somewhat detailed judgment. In other words this operative portion is 'the cause of action' for this judgment, which reads thus-

“1. The accused is hereby convicted for the offence punishable U/s. 302 of Indian Penal Code. He is sentenced to suffer R.I. For life and to pay fine of Rs. 2000/( Two thousand only) in default of payment of fine, the accused to suffer further R.I. for three months. 2. The accused is acquitted of the offence punishable u/s. 201 of Indian Penal Code. 3. The accused is undertrial prisoner but as he is sentenced for life imprisonment, no setoff is given u/s. 428 of Code of Criminal Procedure.”

5. The petitioner had preferred Criminal Appeal No. 168 of 1994 with this Court and the Division Bench was pleased to dismiss the same by its Judgment and order dated 19th August, 1996. A perusal of this judgment delivered in Appeal demonstrates that the Division Bench of this Court did not consider the aforesaid emphasised part of the operative order of the learned Sessions Judge and has not pronounced its view on the same. It appears that nothing was submitted to the Division Bench on behalf of the petitioner at that time in this regard. The Division Bench while dismissing the appeal has observed thus-

“15.......... Having to the medical evidence on record, we have no hesitation in holding that the accused is guilty of having committed offence under Section 302 of the Indian Penal Code. 16. In the result, we find no reason to interfere with the judgment and order of sentence dated 20th October, 1993 passed by the Addl. Sessions Judge, Malegaon in Sessions Case No. 52/93, which is impugned in the present appeal. In the result, the appeal is dismissed .”

6. As the petitioner now claims that the petitioner was never released on bail, once he was arrested on 30th February, 1992 till he was convicted on 20th October, 1993. It is also not disputed that during the pendency of trial as well as the appeal the petitioner continued to remain in the custody. Thus, as on 31st May, 2008 the petitioner has suffered imprisonment as under- Years Months Days 14 07 14 - Actual imprisonment 02 00 00 - Remission by the State. 05 01 20 - Other remissions. 21 09 04 - Total imprisonment. . With the aforesaid admitted factual matrix, the petitioner claims that appropriate set off be granted to the petitioner under section 428 of the Code, which reads thus- Section 428 : Period of detention undergone by the accused to be set off against the sentence of imprisonment – Where an accused person has, on conviction, been sentenced to

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