1.0 As common question of law and facts arise in this group of petitions, they are disposed of by this common judgment and order.
2.0 In all these petitions respective petitioners have prayed for an appropriate writ, direction and order directing the jail authorities to grant benefit of set off of the days undergone by the respective petitioners as undertrial prisoner in other special Pota Cases for a period he has remained in judicial custody in other Pota Cases.
3.0 At the outset, Shri Ansari, learned advocate for the respective petitioners has stated at the bar that respective petitioners are not challenging the communication dated 5.11.1988 and they are challenging the decision of the jail authorities in denying the benefit of set off against the period of detention / imprisonment undergone by them in connection with other Cases only.
4.0 In all these petitions respective petitioners came to be arrested in three different Pota Cases and in all the three Pota Cases they came to be convicted. In one of the Pota Case, the respective petitioners are sentenced to undergo life imprisonment. It is the case of the respective petitioners that the respective petitioners are entitled to get the benefit of set off in other two Pota Cases, in relation to the period of detention already undergone in respect of the 3rd Pota Cases. That by respective communication, respective petitioners are communicated that the respective petitioners shall be entitled to the benefit of set off only in respect of his detention in first case from the date of his arrest till his conviction, as per the decision of the Hon'ble Supreme Court in the case of Raghbir Singh vs. State of Hariyana reported in AIR 1984 SC 1796. Hence, being aggrieved and dissatisfied with the action of the jail authorities in denying the benefit of set off in relation to their period of detention already undergone in respect of other cases, the respective petitioners have preferred present Special Criminal Applications under Article 226 of the Constitution of India.
5.0 Shri I.H. Saiyed, learned advocate has appeared for Shri Ansari, learned advocate for the respective petitioners. Shri I.H. Saiyed, learned advocate for the respective petitioners has submitted that the impugned decision of the jail authorities in not granting the benefit of set off in relation to the period of detention already undergone in respect to one Pota case, so far as other Pota Cases are concerned, is absolutely illegal and contrary to the provision of Section 428 of the Code of Criminal Procedure.,
5.1. Shri I.H. Saiyed, learned advocate for the respective petitioners has submitted that as such the jail authorities have relied upon the decision of the Hon'ble Supreme Court in the case of Raghbir Singh (supra) which is no longer a good law in view of the subsequent decision of the Hon'ble Supreme Court in the case of State of Maharashtra vs. Najakat Alia Mubarak Ali reported in (2001) 6 SCC 311.
5.2. Shri I.H. Saiyed, learned advocate for the respective petitioners has submitted that the decision of the Hon'ble Supreme Court in the case of Raghbir Singh (supra) came to be considered by the Hon'ble Supreme Court in the subsequent decision of the Hon'ble Supreme Court in the case of Najakat Alia Mubarak Ali (supra) and the Hon'ble Supreme Court in the said decision did not agree with the law laid down by the Hon'ble Supreme Court in the case of Raghbir Singh (supra). It is submitted that as observed by the Hon'ble Supreme Court in the case of Najakat Ali Mubarak Alia (supra) if the convict is in prison for whatever reasons during the stage of investigation, enquiry or trial of a particular case and was later convicted and sentenced to a term of imprisonment, in that case, earlier period of detention undergone by him should be counted as part of the sentence imposed on him and it may happen that the accused is convicted in one case under different count of affairs and sentence to different terms of imprisonment under each such count, all such sentences are directed to run concurrently. It is further submitted by Shri I.H. Saiyed, learned advocate for the respective petitioners that the Hon'ble Supreme Court considered the word “of the same case” as mentioned in Section 428 of the Code of Criminal Procedure and it is observed and held that word “of the same case” are not to be understood as suggesting that the set off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. It is submitted that it is observed that the period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case and it is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period.
5.3. It is further submitted by Shri I.H. Saiyed, learned advocate for the respective petitioners that even the decision of the Hon'ble Supreme Court in the case of Najakat Alia Mubarak Ali (supra)has been subsequently accepted and approved by the Hon'ble Supreme Court in the case of State of Punjab vs. Madan Lal reported in (2009) 5 SCC 238. It is therefore, submitted that impugned action of the concerned jail authorities in not granting the benefit of set off for the period he had undergone in first pota case in other two pota cases is contrary to law and requires to be quashed and set aside. By making above submission and relying upon the above decisions, it is requested to allow all the Special Criminal Applications.
6.0 All these petitions are opposed by Shri Jayant Panchal, learned Special Public Prosecutor appearing on behalf of the State. It is submitted that the impugned decision of the jail authorities is absolutely in consonance with the law laid down by the Hon'ble Supreme Court in the case of Raghbir Singh (supra). It is submitted that as such the contention on behalf of the learned advocate for the respective petitioners that the decision of the Hon'ble Supreme Court in the case of Raghbir Singh (supra) is no longer a good law, cannot be accepted in view of the subsequent decision of the Hon'ble Supreme Court in the case of Atul Manubhai Parekh vs. Central Bureau of Investigation reported in (2010) 1 SCC 603. It is submitted that as such in the subsequent decision, the Hon'ble Supreme Court in the case of Atul Manubhai Parekh (supra) has reaffirmed the law laid down by the Hon'ble Supreme Court in the case of Raghbir Singh (supra). It is submitted that in the subsequent decision, the Hon'ble Supreme Court in the case of Atul Manubhai Parekh (supra) has as such considered the decision of the Hon'ble Supreme Court in the case of Najakat Alia Mubarak Ali (supra) as well as in the case of Madan Lal (supra) relied upon by the learned advocate for the respective petitioners and thereafter it is held that the convict shall be entitled to the benefit of set off only in relation to the same case and if it is ordered to undergo / run the sentence concurrently.
6.1. Shri Jayant Panchal, learned Special Public Prosecutor appearing on behalf of the State has also relied upon the decision of the learned Single Judge in the case of Salim Nurmohmad Haveliwala vs. State of Gujarat reported in 2007 Cri.L.J. 4564 as well as unreported decision of this Court dated 1.8.2011 in Special Criminal Application No.1453 of 2011 as well as unreported decision of this Court dated 23.2.2010 in Special Criminal Application No.889 of 2008. Relying upon above decisions and making above submissions, it is requested to dismiss all the petitions.
7.0 In reply, Shri Saiyed, learned advocate for the respective petitioners has submitted that the Hon'ble Supreme Court in the case of Atul Manubhai Parekh(supra) distinguished the judgment of the Hon'ble Supreme Court in the case of Najakat Alia Mubarak Ali (supra) on facts and as such has not specifically overruled the decision in the case of Najakat Alia Mubarak Ali (supra). Therefore, it is submitted that as such the decision of the Hon'ble Supreme Court in the case of Najakat Alia Mubarak Ali (supra) still holds the fieldsand is good law. Shri Saiyed, learned advocate for the respective petitioners has tried to distinguish the judgment of the Hon'ble Supreme Court in the case of Atul Manubhai Parekh (supra) by submitting that in the said case as such the convict claimed the period of set off even for the period he was not shown arrested in other cases. Therefore, it is submitted that the decision of the Hon'ble Supreme Court in the case of Atul Manubhai Parekh (supra) is distinguishable on facts. Therefore, it is requested to allow all the petitions.
8.0 Heard the learned advocates for the respective parties at length. As stated hereinabove, the short point involved in all the petitions is whether a person who has been convicted in several cases (in the present case three different Pota Cases) and has suffered detention and imprisonment in connection therewith would be entitled to the benefit of set off in separate case for the period of detention or imprisonment undergone by him in other cases?
8.1. At the outset, it is required to be noted that the Hon'ble Supreme Court in the case of Raghbir Singh (supra) answered the aforesaid question in negative and held that a person cannot claim a double benefit under Section 428 of the Code of Criminal Procedure i.e. the said period being counted as part of the period of imprisonment imposed for committing the later offence as well. However, in the subsequent decision in the case of Najakat Alia Mubarak Ali (supra) the Hon'ble Supreme Court took the contrary view and as such did not agree with the view taken by the Hon'ble Supreme Court in the case of Raghbir Singh (supra) on facts. However, subsequently identical question came to be considered by the Hon'ble Supreme Court in the case of Atul Manubhai Parekh (supra) and in the said decision the Hon'ble Supreme Court formulated the question of law in para 3 as under:
3. The short point involved in this application is whether a person, who has been convicted in several cases and has suffered detention or imprisonment in connection therewith, would be entitled to the benefit of set off in a separate case for the period of detention or imprisonment undergone by him in the other cases.
8.2. In the said decision, the Hon'ble Supreme Court also considered the decision of the Hon'ble Supreme Court in the case of Najakat Alia Mubarak Ali (supra) as well as in the case of Madan Lal (supra) relied upon by the learned advocate for the petitioners. After considering the aforesaid two decisions of the Hon'ble Supreme Court as well as decision of the Hon'ble Supreme Court in the case of Raghbir Singh (supra) as well as another subsequent decision of the Hon'ble Supreme Court in the case of Maliyakkal Abdul Azeez vs. Collector reported in (2003) 2 SCC 439, the Hon'ble Supreme Court has re affirmed the earlier view in the case of the Raghbir Singh (supra) and in the case of Maliyakkal Abdul Azeez (supra) and has held that Section 428 makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case and consequently it is held that a person who has been convicted in several cases and has suffered detention and imprisonment in connection therewith, would not be entitled to the benefit of set off in a separate case over the period of detention or imprisonment undergone by him in other cases.
8.3. By taking above view, the Hon'ble Supreme Court in para 12 to 18 has observed as under:
12. From the wording of Section 428 it is clear that what is to be setoff is the period of detention, if any, undergone by the convict during the investigation, enquiry or trial of the same case and before the date of such conviction. What has fallen for the interpretation of the courts is the expression “the same case”. While in one set of judgments it has been held that periods of detention undergone in connection with other cases can be counted towards setoff under Section 428 Cr.P.C. in respect of the conviction in another case, in the other set of cases it has been held that it cannot.
13. However, even in Najakat Alia’s case, one of the three Hon’ble Judges took a dissenting view that setoff under Section 428 of the Code would have to be in respect of the detention undergone in respect of the same case. It is the said view which had earlier been accepted in Raghbir Singh v. State of Haryana [(1984) 4 SCC 348] and in the case of Champalal Punjaji Shah’s case (supra).
14. The wording of Section 428 is, in our view, clear and unambiguous. The heading of the Section itself indicates that the period of detention undergone by the accused is to be set off against the sentence of imprisonment. The Section makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. It is quite clear that the period to be set off relates only to pre conviction detention and not to imprisonment on conviction.
15. Let us test the proposition by a concrete example. A habitual offender may be convicted and sentenced to imprisonment at frequent intervals. If the period of pretrial detention in various cases is counted for setoff in respect of a subsequent conviction where the period of detention is greater than the sentence in the subsequent case, the accused will not have to undergo imprisonment at all in connection with the latter case, which could not have been the intention of the legislature while introducing Section 428 in the Code in 1973.
16. The reference made in the several decisions cited before us to Section 427 Cr.P.C. appears to be a little out of focus since the same deals with several sentences passed in the same case against the same accused on different counts which are directed to run concurrently. Section 428 Cr.P.C. deals with a different situation, where the question of merger of sentence does not arise and the period of setoff is in respect of each separate case and the detention undergone by the accused during the investigation or trial of such case.
17. The philosophy of Section 428 Cr.P.C. has been very aptly commented upon by this Court in Government of A.P. vs. Anne Venkateswara Rao (1977) 3 SCC 298, in the following terms “Section 428 provides that the period of detention of an accused as an undertrial prisoner shall be set off against the term of imprisonment imposed on him on conviction.”
18. In fact, a similar situation arose in the case of Maliyakkal Abdul Azeez vs. Asstt. Collector, Kerala & Anr. [(2003) 2 SCC 439], wherein it wassought to be argued on behalf of the petitioner that he was entitled to the benefit of setoffunder Section 428 Cr.P.C. for the period of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. While deciding the said case, the Hon’ble Judges observed that Section 428 Cr.P.C.had been brought on the statute book for the first time in 1973 and was incorporated in the light of the proposal put forward by the Joint Select Committee which noticed that in many cases the accused persons were kept in prison for a very long period as undertrial prisoners and in some cases the period spent in jail by undertrial prisoners far exceeded the sentence of imprisonment ultimately awarded. It was also noticed by the Select Committee with concern that a large number of prisoners in the overcrowded jails of the country were undertrial prisoners and that Section 428 Cr.P.C. was introduced to remedy the unsatisfactory state of affairs by providing for settingoff of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on the accused.
8.4. Even in para 19, the Hon'ble Supreme Court has specifically observed that the decision in Maliyakkal Abdul Azeez (supra) has been rendered after the decision in Najakat Alia case and therefore, they follow the same as it reiterates the law laid down in the earlier cases such as in the case of Anne Venkatesware (supra) Raghbir Singh (supra) and Champalal Punjaji Shah reported in (1982) 1 SCC 507. Therefore, as such in the subsequent decision in the case of Atul Manubhai Parekh (supra) the Hon'ble Supreme Court has reiterated and / or reaffirmed the decision of the Hon'ble Supreme Court in the case of Raghbir Singh (supra) which has been relied upon by the jail authorities. Therefore, the submissions on behalf of the respective petitioners that in view of the decision of the Hon'ble Supreme Court in the case of Najakat Alia (supra), the decision of the Hon'ble Supreme Court in the case of Raghbir Singh (supra) is not a good law has no substance and cannot be accepted. On the contrary, in the subsequent decision, the Hon'ble Supreme Court has reaffirmed and has followed the decision of the Hon'ble Supreme Court in the case of Raghbir Singh (supra).
8.5. As such similar view has been expressed by this Court in the case of the Salim Nurmohmad Haveliwala (supra), unreported decisions of this Court rendered in SCR.A No.889 of 2009 and SCR.A No.1453 of 2011.
8.6. Considering the aforesaid facts and circumstances of the case , it cannot be said that the decision of the jail authorities in not granting the benefit of set off against the period of detention / imprisonment undergone by him in connection with the other case is in any way illegal and / or arbitrary. On the contrary, the said decision is in consonance with the decision of the Hon'ble Supreme Court more particularly in the case of Atul Manubhai Parekh (supra).
9.0. In view of the above and for the reasons stated above, all the petitions fail and same deserves to be dismissed and are accordingly dismissed. Rule are discharged.
kaushik sd/ (M.R.SHAH, J.)