DESHMUKH, J.:- This is an application by a convict through Jail. It raises a point of some interest relating to the real meaning and interpretation of S. 428 of the Cr. P. C. 1973,

2. The petitioner has been convicted in three different cases. One was Sessions Case No. 347 of 1962 which resulted in Me conviction under S. 302 as well as under S. 324 1 P. C. The judgment was delivered in that case on the 18th of Feb. 1963. He was sentenced to life imprisonment under S. 302 and to undergo rigorous imprisonment for one year each under two different counts under S. 324 I. P. C. The two sentences of one year each were not only to run concurrently with each other but they were both to run concurrently with life imprisonment In relation to this Sessions case he was arrested on or about Sept 1962 and was in continuous detention for the purpose of investigation, inquiry and trial of Sessions Case No. 347 of, 1962. This was till 18th Feb. 1963 when the sentence was pronounced upon him.

3. He was also convicted in two criminal eases both under and 66 (1) (b) of the Bombay Prohibition Act. In Criminal Case No. 525/P of 1962 the Presidency Magistrate of the 14th Court. Bombay, sentenced him to suffer rigorous imprisonment for five months and to pay a fine of Rs. 1,000/-, or in default, rigorous imprisonment for one month. In Criminal Case No. 6180/P of 1962 the 18th Court of the Presidency Magistrate, Bombay, sentenced him to suffer rigorous imprisonment for nine months and a fine of Rs. 200/-, or in default, rigorous imprisonment for one month.

4. While the petitioner was serving life imprisonment for his conviction in Sessions Case No. 347 of 1962, his sentence has been commuted by the State Government under S. 433 of the Cr. P. C. 1973 to a term of 14 years under cl. (b) thereof. The petitioner, therefore, applies by this application to grant him concession of 158 days, which was the period of detention in relation to Sessions Case No. 347 of 1962 from the sentence of 14 years rigorous imprisonment which is the commuted sentence due to the State Government's orders under S. 433 of the Code. He has also urged that he is entitled to a set off in relation to that period even in the cases of convictions under the Prohibition Act by the 14th and the 18th Courts of the Presidency Magistrates, Bombay. The application is opposed by the Public Prosecutor.

5. So far as the request of the petitioner to grant him the relief under Section 428 Cr. P. C. in relation to the prohibition cases is concerned, it is not possible to accept the application at all S. 428 lays down in terms that -

"Where an accused person has, on conviction, been sentenced to imprisonment 'for a term,' the period of detention, if any, undergone by him during the 'investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction. ........."

It is, therefore, clear that an accused person must in the first instance be sentenced, on conviction, to imprisonment for a term. That description is answered by the sentences pronounced in the two prohibition cases. They are respectively for the terms of 5 months and 9 months. However, in order that a set off should be given under S. 428, the detention must have been undergone by the accused during the investigation, inquiry or trial of the "same case". The tacts stated by the accused in the petition clearly show that he was arrested in Sep. 1962 only in relation to the offence of murder, which is the subject-matter of Sessions Case No. 347 of 1962. The detention from Sep. 1962 to 18th Feb. 1963 is in relation to the Sessions Case No. 347 of 1962 and it is not a detention in relation to the investigation, inquiry or trial of the prohibition cases. That being so, the petitioner is not entitled to claim any remission of the detention period in relation to the prohibition cases.

6. So far as the Sessions Case is concerned, it is no doubt true tha

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