Section 428 of the new Code of Criminal Procedure, 1973, cannot be applied retrospectively to cases finally disposed of before its commencement.

1. Banwari and Ram Sarup were convicted by the Court of Session in Hissar on November 12, 1965 under Section 302 read with Section 34. Indian Penal Code, and sentenced to life imprisonment each. Criminal Appeal No. 903 of 1965 filed by them was dismissed by this Court on February 21, 1967. Since the date of their conviction, they have been suffering the term of imprisonment. By filing this petition, they seek relief under Section 428 of the Code of Criminal Procedure of 1973 (hereinafter referred to as the new Code) which enacts :-

"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, 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."

For determining the question whether the provisions of the section quoted above can be applied to the case in hand, the following three categories may be visualised :-

(1) Case finally disposed of before the commencement of the new Code.

(2) Case, trial or appeal of which is pending at the commencement of the new Code, and

(3) Case, trial of which starts after the commencement of the new Code.

2. So far as category No. 3 is concerned, there can be no two opinions that benefit of Section 428 would go to an accused person. As regards the application of its provisions to the other two categories, the relevant portion of Sec. 484 of the new Code is :-

"(1) The Code of Criminal Procedure, 1898 is hereby repealed.

(2) Notwithstanding such repeal - (a) if, immediately before the date on which this Court comes into force there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued held or made, as the case may be in accordance with the provisions of the Code of Criminal Procedure, 1898, as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force.

Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of the Code :

(b) all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred prescribed, defined, passed or made under the corresponding provisions of this Code :

(c)** ** ** ** ** ** ** ** ** ** ** ** ** **

(d)** ** ** ** ** ** ** ** ** ** ** **

(3)** ** ** ** ** ** ** ** ** **"

Sub-Section (2) of Section 484 clearly enacts that a case of the second category shall be disposed of in accordance with provisions of the old Code. It follows that in a pending case relief under Section 428 of the new Code cannot be given to an accused. That being the clear intention of the legislature, one fails to see how the benefit of Section 428 can possible go to the accused persons, like the two petitioners before us, of the first category. For doing so, Section 428 shall have to be given retrospective effect but this is nowhere either in the terms of the section or in the scheme of Section, 484. All the same, learned counsel for the petitioners urged that the relief claimed can be granted inasmuch as Sub-Sec. (2)(b) of Section 484 of the new Code lays down that all sentences passed under the old Code and which are in force immediately before the commencement of the new Code shall be deemed to have been passed u