High Court under Article 226 can direct mandatory set-off of undertrial detention under Section 428 Cr.P.C. for life convicts, even if omitted by trial court, as it is non-discretionary statutory right executable by prison authorities.

JUDGMENT :

SANDIPKUMAR C. MORE, J.

1. Rule. Rule made returnable forthwith. Heard finally at the admission stage with the consent of the learned counsel for the petitioner as well as the learned APP for the respondent–State.

2. By way of this writ petition, the petitioner seeks a direction to the Additional Sessions Judge, Osmanabad, to correct or modify the judgment and order dated 15/02/2012 passed in Sessions Case No. 8 of 2012, to the extent of granting him set-off under Section 428 of the Cr.P.C. for the period of imprisonment already undergone by him from the date of his arrest till the decision of the aforesaid case.

3. The learned counsel for the petitioner submits that the learned Additional Sessions Judge, Osmanabad, convicted the petitioner, who is the original accused No. 1 in Sessions Case No. 8 of 2011, for offences punishable under Sections 302 and 323 of the IPC. However, while awarding the sentence, though the learned Additional Sessions Judge directed that the sentences imposed under the aforesaid sections of the IPC shall run concurrently, no order granting set-off under Section 428 of the Cr.P.C. was passed. The learned counsel for the petitioner further submits that the petitioner was arrested in the aforesaid crime on 05/10/2010 and remained in custody until his conviction on 15/02/2012 and therefore entitled to set-off for the said period under Section 428 of the Cr.P.C. In support of her submissions, she has relied on the following judgments:

A) Rajaram Kashinath Charoskar vs. State of Maharashtra , 2008 ALL MR (Cri) 3407;

B) Judgment of the Delhi High Court in Writ Petition (Cri) No. 1828/2013 ( (Zile Singh vs. State GNCT of Delhi) ), delivered on 12/12/2013; and

C) Judgment of this Court in Criminal Appeal No. 172 of 2012 (Vikas @ Sadhu Gendev Hagare (Mali) vs. The State of Maharashtra), delivered on 29/07/2015.

4. On the contrary, the learned APP strongly opposed the submissions made on behalf of the petitioner and raised a preliminary objection regarding the maintainability of the present petition by relying upon the judgment of the Hon’ble Apex Court in Pradnya Pranjal Kulkarni vs. State of Maharashtra and another , 2025 SCC OnLine SC 1948. According to him, the writ petition under Article 226 of the Constitution of India is not maintainable, as the order passed by a judicial officer is under challenge in the present matter. In the alternative, he submits that when the learned Additional Sessions Judge, Osmanabad, has specifically refrained himself from granting set-off under Section 428 of the Cr.P.C. to the present petitioner despite granting such benefit to another accused, i.e., accused No. 3, Ganpat Bhiva Hagare, the petitioner cannot claim the same as a matter of right. Accordingly, he prayed for dismissal of the petition.

5. Admittedly, the learned Additional Sessions Judge, Osmanabad, convicted the present petitioner for offences punishable under Sections 302 and 323 of the IPC. For the offence under Section 302 of the IPC, the petitioner has been sentenced to suffer life imprisonment and to pay a fine of Rs. 500/-, with a default clause; and for the offence under Section 323 of the IPC, he has been sentenced to suffer simple imprisonment for three months and to pay a fine of Rs. 300/-, with a default clause. It is equally important to note that another accused, i.e., accused No. 3, Ganpat, was convicted for the offence under Section 323 read with Section 34 of the IPC and sentenced to suffer simple imprisonment for three months along with fine in the same crime. Further, the operative part of the judgment indicates that the said accused No. 3 was granted set-off under Section 428 of the Cr.P.C. by the learned Additional Sessions Jud