Does the provisions for set off in Section 428 of the Code of Criminal Procedure apply to a sentence imposed for default in payment of compensation under Section 357(3) Cr.P.C. as enabled by the dictum in Hari Kishan & State of Haryana V. Sukhbir Singh (AIR 1988 SC 2127) and Suganthi Suresh v. Jagdeeshan (AIR 2002 SC 681)? Do the words “not being imprisonment in default of payment of fine” introduced in Section 428 Cr.P.C. by Act 45 of 1978 w.e.f. 112.1978 take in a sentence of imprisonment in default of payment of compensation” Are deemed fines not fines stricto senso also included in the sweep of the expression “fine” in the portion introduced by amendment in 1978? These are the interesting questions that are thrown up for consideration.

2. To the crucially relevant facts first. The petitioner faced indictment in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty, convicted and sentenced on 29.06.1996. During the pendency of that prosecution, he had undergone imprisonment as an under trial from 02.02.96 to 26.04.96. The learned Magistrate sentenced him to undergo substantive sentence of R.I. for a period of 6 months. No fine was imposed. There was no direction for payment of compensation.

3. Thepetitioner preferred an appeal. In the appeal, the verdict of guilty, conviction and sentence were all confirmed. There was a direction that the learned Magistrate must consider whether the petitioner is entitled for set off for the period of 84 days under Section 428 Cr.P.C. The learned Magistrate, by order dated 16.01.1999, took the view that the petitioner is entitled for set off for the said period of 84 days and that period was liable to be set off against the substantive sentence of imprisonment imposed.

4. The petitioner had challenged the appellate judgment before this Court in a revision petition. In that revision petition, another Bench of this Court, by order dt. 02.08.06, upheld the verdict of guilty and conviction, but indulgently modified the sentence. He was sentenced to undergo imprisonment till rising of court and to pay an amount of Rs.50,000/- as compensation under Section 357(3) Cr.P.C and in default to undergo S.I. for a further period of 3 months.

5. The petitioner did not make the payment. He now faces the prospect of being sent to prison to serve the default sentence. The petitioner has come to this Court now with this petition under Section 482 Cr.P.C. for a direction that the period of 84 days that he has spent in prison, may be directed to be set off against the default sentence of S.I. for a period of 3 months. Can that be done? This is the question to be decided.

6. A look at the law next. Section 428 Cr.P.C was introduced in the 1973 Code with the avowed object of ensuring that persons in custody pending investigation/trial get the opportunity to claim credit for such period of pre trial detention against the sentence of imprisonment imposed. After the introduction of that new provision, disputes arose as to whether such set off can be claimed towards the default sentence imposed. The supreme Court in B.P. Andre V. Supdt., Central jail (AIR 1975 SC 164) considered the question in detail and a two Judge Bench took the view that such set off under Section 428 Cr.P.C. is available against a default sentence also. The question appeared to be concluded by that pronouncement.

7. But we find that the Parliament stepped in immediately to take away the benefit of B.P. Andre v. Supdt., Central Jail by a prompt amendment of Section 428 Cr.P.C I extract below Section 428 Cr.P.C. as it now stands. The portion introduced by Act 45 of 1978 w.e.f. 112.1978 has been underlined below.

“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 imprisonment for a term (not being imprisonment in default of Payment of fine) the period of det