The right to set off the period of pre-conviction detention against the term of imprisonment is absolute, even in the case of a sentence of imprisonment for life, and can be availed only if the appropriate Government has remitted the sentence under S. 432 or commuted under S. 433(b) Cr.P.C.

KOSHY, J. :- Petitioner who was an accused in the Vypin Liquor Tragedy case was sentenced to undergo rigorous imprisonment for a period of seven years. The Supreme Court enhanced the above punishment to one of imprisonment for life. He wanted to set off the under trial period spent by him in jail against the sentence of imprisonment under S. 428 of the Code of Criminal Procedure. Learned single Judge before whom it was posted referred the matter to Division Bench.

2. Since interpretation of S. 428, Cr.P.C. is involved, the above section is extracted below :

"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 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 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, 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."

Section 428 is clear and positive. An absolute right for set off is granted under the section for the period of pre-conviction detention of an accused against the term of the imprisonment imposed whatever be the term of the imprisonment and whatever be the factors taken into account by Court while imposing the term of imprisonment (Hardev Singh v. State of Punjab, AIR 1975 SC 179) : (1975 Cri LJ 243). The contention that since the punishment is awarded by the Supreme Court, the benefit of set off can be given only by the Supreme Court cannot be accepted because right to set off is an absolute right given under S. 428, Cr.P.C. Even if it is not mentioned in the Supreme Court judgment, this right cannot be denied. A miscellaneous application can be filed at any time while the sentence was running (Suraj Bhan v. Om Prakash, AIR 1976 SC 648) : (1976 Cri LJ 1192) :

3. The next question to be considered is whether set off can be given when sentence is imprisonment for life. Earlier, the Supreme Court in Kartar Singh v. State of Haryana AIR 1982 SC 1439 : (1982 Cri LJ 1772) held that since life imprisonment is not for a fixed term, the question of set off under S. 428 will never arise. But, the above view was overruled by a Constitutional Bench of the Supreme Court in Bhagirath v. Delhi Administration AIR 1985 SC 1050. There, it was held that the 'term' mentioned in S. 428, Cr.P.C. is not a fixed term. Therefore, life convicts also are entitled to get the benefit of S. 428 Cr.P.C. Paragraphs 7 and 8 of the above decision are as follows :

"7. We see but little warrant for qualifying the word 'term' by the adjective 'fixed' which is not to be found in S. 428. The assumption that the word 'term' implies a concept of ascertainability or conveys a sense of certainty is contrary to the letter of the law, as we find it in that section. Even the marginal note to the section does not bear out that assumption. It rather belies it. And, marginal notes are now legislative and not editorial exercises. The marginal note of S. 428 shows that the object of the Legislature in enacting the particular provision was to provide that 'the period of detention undergone by the accused.' should 'be set off against the sentence of imprisonment' imposed upon him. There are no words of limitation either in the section or in its marginal note which would justify restricting the plain and natural meaning of the word 'term' so as to comprehend only sentences which are imposed for a fixed or ascertainable period.

8. To say that a sentence of life imprisonment imposed upon an accused is a sentence for the term of his life does offence neither to grammar nor to the common understanding of the word 'term'. To say otherwise would offend not only against the language of the st