Petitioner held entitled to remission for pre-trial detention period.

NATARAJAN, J.

A convicted prisoner has filed this writ petition through the good offices of the Madras District Committee for Legal Aid and Advice. The petition raises an interesting question of law, viz., whether a person who has been convicted in a plurality of cases on the same day and sentenced to undergo sentences of imprisonment concurrently, can claim the benefit of remission of the period of pre-trial detention under S. 428, Cr.P.C. in respect of all the cases.

2. The brief facts which require mention are as follows : The petitioner was arrested on 19-4-1982 by the third respondent for offences punishable under Sections 457 and 380, I.P.C. Charge-sheets were filed against the petitioner in three cases under Sections 457 and 380, I.P.C. They were taken on file as C.C. Nos. 506, 507 and 508 of 1982 on the file of the Judicial First Class Magistrate No. II. Vellore. The petitioner was in remand from 19-4-1982. On 29-9-1982 the plea of guilt entered by the petitioner in all the three cases was accepted and he was convicted and sentenced to undergo rigorous imprisonment for six months in each case. The sentences were, however, directed to run concurrently. The learned Magistrate had granted the relief of set-off under Section 428. Cr.P.C. only in respect of the sentence awarded in C.C. No. 506 of 1982, but did not grant any set-off in respect of the sentences awarded in the other two cases.

3. The petitioner moved the Judicial First Class Magistrate No. II. Vellore and requested him to issue a direction to the second respondent to release him forthwith. The petitioner made such a request on the basis that his pre-trial detention was referable to all the three cases filed against him and in such circumstances, the benefit of set-off should enure in all the cases, especially when the sentences have been ordered to run concurrently. The learned Magistrate dismissed the petition filed by the petitioner on the ground that he had become functus officio and as such, he cannot issue any direction to the second respondent. It is, thereafter, the petitioner has filed this petition under Art. 226 of the Constitution of India, seeking the issue of a writ of habeas corpus. According to him, if set-off is given to the detention undergone by him as an under-trial prisoner, in respect of all the three cases, he has already served his sentence and as such, any further detention will amount to illegal detention.

4. Notice was ordered to the Public Prosecutor returnable by 17-1-1983. On 24-12-1982 the Public Prosecutor put forth his contentions in the petition. His stand was that inasmuch as the trial Magistrate has granted set-off only in C.C. No. 506 of 1982 and has specifically stated that no set-off was ordered in the other two cases, it followed that the petitioner can claim the benefit of set-off only in respect of the first case and not the second and third cases. Another contention put forward was that the petitioner has twenty-five previous convictions to his credit and in such circumstances, the petitioner is not entitled to any leniency in the matter of set-off so far as the sentence in the second and third cases are concerned.

5. In support of their respective contentions, Mr. Raghupathy appearing for the petitioner and the Public Prosecutor cited the following authorities. But, before referring to them, we may appositely refer to S. 428, Cr.P.C. and the underlying object of Parliament in enacting the section, S. 428, Cr.P.C. runs as follows :-

"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