Mandatory set-off under Section 428 Cr.PC for under-trial detention against life imprisonment, even if not expressly granted by trial court.

Dated this the 6^th day of April, 2026 JUDGMENT The petitioner is the mother of Sri.Sanish (Convict No.3826), 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.400/2012. He was also convicted under various penal sections of the Indian Penal Code. The Sessions Court sentenced him to life imprisonment under Section 302 of IPC with a rider that accused No.2 shall not be released from the prison for a period of 20 years. He challenged the conviction and sentence in Criminal Appeal No.121/2013 before this Court. This Court in Criminal Appeal held that the sentence imposed on accused No.2 for a period of 20 years is without jurisdiction. This Court partly allowed the Criminal Appeal confirming the conviction and sentencing him for life imprisonment. Challenging the judgment in Criminal Appeal the convict approached the Apex Court. The Apex Court also confirmed the conviction and the sentence. The Apex Court further held that the dismissal of the present petition would not come in the way of the petitioner filing representation for premature release/remission. In the judgment convicting accused No.2/convict, set-off as provided in Section 428 Cr.PC was not expressly given.

2. The convict served actual sentence of 13 years and 2 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 against a period of 368 days [from 29.11.2011 to 30.11.2012] undergone by him as an under-trial prisoner.

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

433A, 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