Holding

Detention while serving a prior sentence cannot be set off under Section 428 against a later sentence; it counts as part of the earlier imprisonment.

Summary

Raghbir Singh was convicted in a Sessions case on 1 February 1980 for offences under Sections 307 and 459 of the IPC and sentenced to rigorous imprisonment. While serving this sentence, he remained in judicial custody from 11 January 1980 for a separate case that later resulted in a conviction on 16 February 1981 by a Metropolitan Magistrate, Delhi, which ordered a set‑off under Section 428 of the CrPC. The petitioner claimed that the period of custody during the second case should be set off against the later sentence, arguing that it was pre‑conviction detention. The Supreme Court examined the scope of Section 428, which permits set‑off only for detention incurred during the investigation, inquiry or trial of the same case for which the conviction occurs. It held that detention while already serving a sentence for another offence is part of that earlier sentence and cannot be counted again for set‑off, as this would amount to a double benefit. Consequently, the petition seeking the set‑off was dismissed.

Issues considered

Whether detention incurred while a person is already serving a sentence for one offence can be set off against the term of imprisonment imposed for a later conviction under Section 428 of the Code of Criminal Procedure, 1973.

Legislation cited

Code of Criminal Procedure, 1973s. 427, s. 428
Indian Penal Code, 1860s. 307, s. 380, s. 411, s. 457, s. 459

Subjects

Section 428set‑offpre‑conviction detentiondouble benefitcriminal procedureimprisonmentjudicial custodywrit petitionArticle 32

Judgment

(

A

•
RAGHBIR SINGH
v.
STATEOF HARYANA
B '
September 13, 1984

(E.S. VBNKATARAMll\ll AND SABYASACH! MUKHARJI, JJ ,)

Code of Criminal Procedur e 1973 (Act Tl of 1974) Section 428 read with
Punjab & Haryana High Court Instruction No. 29442 Rules VJ. v. 38 dt.
19. Jl.1945 Scope of-Set off against the terni of imprisonment of period of
dentention undergone by an accused, explained-Whether it is open to a person
who is undergoing imprisonment on being convicted of an offence committed by
him to claim that the period occupied by the investigation or inquiry carried on •
and the trial held while he was undergoing imprisonment in respect of another
D offence alleged to have been committed by him should be set off against the term
of imprisonment imposed on hi1n on being convicted of the latter offence.

The petitioner was ~nvicted for an offence under Section 307 and Section
459 of the Indian Penal Code and sentenced on February 1, 1980 to a tern1 of
rigorous imprisonment. During the pcndency of the trial the petitioner was in
•
E judicial custody with effect from January 11, 1980 in another case F.LR. 315/78
under Sections 457/380/411 of the Jndian Penal Code which also ended in his
conviction on February 16, 1981 and was sentenced for a term of rigorous
imprisonment. In the latter case it was ordered that the petitioner was entitled •
to the set off as provided by Section 428 of the Code. The petitioner clai1ned
that in spite of his conviction in the earlier case fro1n February 1, 1980 he was
entitled for set off from 11. I. 1980)0~16. 2. 81. The question in the present
F Writ Petition is whether such a claim 'is in order.

Dismissing the Writ Petition, the Court

HELD : 1. The petitioner is not entitled to claim that the period between
February 1, 1980 on which date he was convicted in the Sessions Case and
February 16, 1981 on which date he was convicted by the Metropolitan Magis-
G trate, Delhi in another case when he was undergoing imprisonment i111poscd on
him in the Sessions Case should be] set off against the term of imprisonment
imposed by the Metropolitan Magistrate, Delhi.~ That period should be counted
as part of the imprisonment undergone by the petitioner as directed in the
Sessions Case. [728G-HJ

2 : l. Section 428 of the Code of Criminal Procedure 1973 was introduced
ff with the object of remedying the unsatisfactory state of affairs that was prevail-
kAOHBiR SINGH v. iiAkYANA (Venkataramiah, J.) 725
ing when the former Code of 1898 was in force. It was then found that many A
persons were being detained in prison at the pre-conviction stage for unduly
long periods, many times for periods longer than the actual sentence of impri·
sonment that could be imposed on them on conviction. -[727F-G]

2 : 2. In order to secure the benefit of Section 428 of the Code1 the prisoner
should show that he had been detained in prison for the purpose of investigation
• inquiry or trial of the case in which he is later on convicted and sentenced. It B
follows that if a person is undergoing the sentence of imprisonment imposed by
a court of law on being convicted of an offence in one case during the period
of investigation, inquiry or trial of some other case, he cannot claim that the
period occupied by such investigation, iriquiry or trial should be set off against
the sentence of imprisonment to be imposed in the latter case even though he
had been detained during such period. In such a case the period of dentention
is really a part of the period of imprisonment which he is undergoing having
c
been sentenced earlier for another offence. It is not the period of detention
undergone by him during the investigation, inquiry or trial of the same case in
which he is later on convicted and sentenced to undergo imprisonment. He
cannot claim a double benefit under Section 428 of the Code that is the same
period being counted as part of the period of in1prisonment imposed for com-
mitting the former offence and also being set off against the period of imprison- D
mcnt imposed for committing the latter offence as weJI. The instruction issued
by the High Court of Punjab & Haryana No. 29442 Rules VI. V. 38 dated 29th
November, 1975 is unexceptionable. [727G~H]

' ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 941 of
1984. E
(Under ariticle 32 of the Constitution of India)
;

S.L. Chibber for the Petitioner.

Ashwani Kumar and R.N. Podaar for the Respondent.

The Judgment of the Court was delivered by
F

VENKATARAMIAH, J. The short question which arises for deci
sion in this petition under Article 32 of the Constitution is whether-
it is open to a person who is undergoing imprisonment on being
convicted of an offence committed by him to claim that the period
G
occupied by the investigation or inquiry carried on and the trial held
while he was undergoing imprisonment in respect of another offence
alleged to have been committed by him should be set off against the
term of imprisonment imposed on him on being convicted of the
latter offence, under section 428 of the Code of Criminal Procedure
1973 (hereinafter referred to as 'the Code'). '
H
7:i.6 SUPREME COURT REPORTS (1985] j S.C.R.

The facts relevant for the purpose of this case are these: The
A
petitioner was convicted of an offence punishable under section 3 07
of the Indian Penal Code and sentenced to undergo rigorous impri-
sonment for seven years and to pay a fine of Rs. 100/- in a Sessions
Case on February I, 1980 by the Addi. Sessions Judge, Karna!. In
the same case, he was also convicted of an offence punishable under
B section 459 of the Indian Penal Code and sentenced to undergo •
rigorous imprisonment for five years and to pay a fine of Rs. JOO/-.
Both the sentences of imprisonment were directed to run con-
currently. The petitioner was in judicial custody with effect from
January 11, 1980 in another case F.I.R. No. 315/78 under sections
457/380/411 of the Indian Penal Code before a Metropolitan
c Magistrate at Delhi. That case ended in his conviction on February
16, 1981 for an offence punishable·under section 457 of the Indian
Penal (ode and he was sentenced to undergo imprisonment for one
year and to pay a fine of Rs. 200/-. In the same case he was con-
victed of an offence punishable under section 380 of the Indian •
Penal Code and sentenced to undergo rigorous imprisonment for
D four months and to pay fine. The two sentences of imprisonment
imposed in this case were directed to run concurrently. In this case
it was further ordered that the petitioner was entitled to the set off
as provided by section 428 of the Code. It is not necessary to refer
to the other case or cases in which he has also been convicted in
order to decide the issue involved in this case.
E
The petitioner is undergoing rigorous imprisonment for seven
years as directed by the Add]. Sessions Judge, Karna! in the Sessions •
case from February I, 1980 at the District Jail at Rohtak.
The sentences of imprisonment imposed by the Metropolitan
F Magistrate, Delhi will commence to run at the expiration of
the imprisonment imposed by the Addi. Sessions Judge, Karna!
as prescribed by section 427 of the Code since the court has
not directed that the subsequent sentence shall run concurrently
with the previous sentence. The petitioner. however, contends that
since he was in judicial cnstody from Jannary II, 1980 in connec-
G tion with the investigation and trial of the case which ended in his
conviction by the Metropolitan Magistrate on February 16, 1981,
the whole of the peri11d between January 11, 1980 and February 16,
1981 should be set off against the sentence of imprisonment imposed
by the Metropolitan Magistrate, Delhi. This claim of the petitioner
is contested by the State Government of 1-laryana. It is urged on
H behalf of the State Government that_ while the petitioner is entitled
'
RAGHBIR siNGH v. IiARYANA (Venkataramiah, J) 71'1
to set off under section 428 of the Code, the period between January
A
II, 1980 and February I, 1980 on which date he was sentenced to
imprisonment for seven years by the Add!. Sessions Judge, Karna!
against the sentence of imprisonment imposed by the Metropolitan
Magistrate, Delhi, the period between February l, 1980 and Ferbuary
16, 1981 on which date the petitioner was convicted by the Metro-
politon Magistrate, Delhi cannot be set off since during that period B
the petitioner was actually undergoing imprisonment imposed on
him in the Sessions case. The State Government has relied in support
of its contention on the instruction issued by the High Court of
Punjab and Haryana in No. 29442 Rules VI.V.38 dated November
29, 1975, the relevant part of which reads thus:
c
"The period of detention undergone by a convict in execu-
tion of sentence of imprisonment imposed on him by a
court of law while facing inquiry or trial in some other
• case(s) should not be set off against the term of imprison-
ment imposed on him on conviction in such other case(s)."
D
We are concerned in the present case with the correctness of
the above instruction.
Section 428 of the Code reads thus:
"428. Period of detention undergone by the accused to be
set off against the sentence of imprisonment-Where an E
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, under-
gone 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 F
on such conviction, and the liability of such person to
undergo imprisonment on such conviction shall be restrict-
ed to the remainder, if any, of the term of imprisonment
imposed on him."
'
There was no provision corresponding to section 428 of the
Code in the Code: of Criminal Procedure, 1898 which was repealed and
replaced by the present Code. It was introduced with the object of
remedyin.g the unsatisfactory state of affairs that was prevailing when
the former Code was in force. It was then found that many persons
were being detained in prison at the pre-conviction stage for unduly
Jong periods, many times for periods longer than the actual sentence H
728 sUPllEME COURT REPORTS [1985] 1 s.c.it.
of imprisonment that could be imposed on them on conviction. In
order to remedy the above situation, section 428 of the Code was
enacted. It provides for the setting off of the period of detention as
an under trial prisoner against the sentence of imprisonment imposed
on him. Hence in order to secure the benefit of section 428 of the
Code, the prisoner should show that he had been detained in prison
B
for the purpose of investigation, inquiry or trial of the case in which
he is later on convicted and sentenced. It follows that if a person is
•
undergoing the sentence of imprisonment imposed by a court of law
on being convicted of an offence in one case during the period of
investigation, inquiry or trial of some other case, he cannot claim
that the period occupied by such investigation, inquiry or trial should
c be set off against the sentence of imprisonment to be imposed in
the latter case even though he was under detention during such
period. In such a case the period of detention is really a part of the
period of imprisonment which he is undergoing having been sentenc-
ed earlier for another offence. It is not the period of detention •
undergone by him during the investigation, inquiry or trial of the
0 same case in which he is later on convicted and sentenced to under-
go imprisonment. He cannot claim a double benefit under section
428 of the Code i.e. the same period being counted as part of the
period of imprisonment imposed for committing the former offence
and also being set off against the period of imprisonment imposed '
for committing the latter offence as well. The instruction issued by
E. the High Court in this regard is unexceptionable. The stand of the
State Government has, therefore, to be upheld.
•
The petitioner is not, therefore, entitled to claim that the
period between February 1, 1980 on which date he was convicted in
the Sessions case and February 16, 1981 on which date he was
F
conviced by the Metropolitan Magistrate, Delhi when he was under-
going imprisonment imposed on him in the Sessions case should be
set off against the term of imprisonment imposed by the Metropoli-
tan Magistrate, Delhi. That period should be counted as part of the 1
imprisonment undergone by the petitioner as directed in the c. .

G Sessions case.

No other contention is urged.

In the result the petition is dismissed.
H S.R. Petition dismissed.