Set-off under Section 428 Cr.PC must account for under-trial periods regardless of prior court omission.

K.BABU, J.

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W.P (Crl) No.78 of 2026 ---------------------------------------

Dated this the 13^th day of March, 2026 JUDGMENT The petitioner is the wife of Sri.Shereef.K (Convict No.8585), who has been lodged in the Open Prison and Correctional Home, Nettukaltheri, Thiruvananthapuram. He was convicted under Section 302 of IPC by the Sessions Court, Thiruvananthapuram in Sessions Case No. 1222/2011. He was also convicted under various penal sections of the Indian Penal Code. The Sessions Court sentenced him to death penalty under Section 302 of IPC. He challenged the conviction and sentence in Criminal Appeal No.40/2014 before this Court. This Court confirmed the conviction, but commuted the death sentence to life imprisonment. In the judgment convicting the accused/convict, set-off as provided in Section 428 Cr.PC was not expressly given.

2. The accused/convict filed an application before the learned Sessions Judge, Thiruvananthapuram seeking set-off under Section 428 Cr.PC (corresponding to Section 468 of the BNSS) against a period of 824 days [from 21.07.2011 to 22.10.2013] undergone by him as an under-trial prisoner. The learned Sessions Judge dismissed the application seeking set-off on the ground that death penalty was commuted by the High Court. The accused served actual sentence of 14 years and 6 months. The petitioner seeks to issue a writ to the competent authorities to grant the benefit of set-off as provided in Section 428 Cr.PC/Section 468 BNSS.

3. As per Section 428 of the Cr.PC (Section 468 of BNSS), 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.

4. A Constitution Bench of the Apex Court in Bhagirath:

Rakesh Kaushik v. Delhi Administration [ (1985) 2 SCC 580 ], held that Imprisonment for life is 'imprisonment for a term' within the meaning of Section 428 Cr.PC. The Constitution Bench further held that the period of detention undergone by the accused as under- trial prisoner shall be set off against the sentence of life imprisonment imposed upon him, subject to the provision contained in Section 433A and, provided that orders have been passed by the appropriate authority under Sections 432 or 433 of the Cr.PC.

5. As per Sections 432 and 433 of the Cr.PC, the appropriate government may, without the consent of the person sentenced, commute a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine. As per Section 433 A, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

6. It is submitted that the competent authority has recommended premature release of the prisoners who have already served the statutory period of 14 years as provided in Section 433A of the Cr.PC. The case of the petitioner is that if the period of set off entitled to her husband is also reckoned to compute the actual sentence served, he wou