Bombay High Court
Saquib Abdul Hamid Nachan vs The Superintendent Central Jail on 5 May, 2017
Bench: Ranjit More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4047 OF 2016
Saquib Abdul Hamid Nachan .. Petitioner
v/s.
The Superintendent, Central Jail ..Respondent
CRIMINAL WRIT PETITION NO. 2285 OF 2016
Saquib Abdul Hamid Nachan .. Petitioner
v/s.
The State of Maharashtra ..Respondent
CRIMINAL APPLICATION NO. 290 OF 2016
IN
CRIMINAL WRIT PETITION NO. 2285 OF 2016
Saquib Abdul Hamid Nachan .. Petitioner
v/s.
The State of Maharashtra ..Respondent
Mr. Sandeep Pasbola for the Petitioner.
Ms.Rohini Salian, Spl.PP APP for the Respondent.
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CORAM : RANJIT MORE &
SMT. ANUJA PRABHUDESSAI, JJ.
DATED : 5th MAY, 2017.
Judgment (Per Anuja Prabhudessai, J.) :
1. Rule. Rule is made returnable forthwith. With consent of the
parties, petition is taken up for hearing.
2. The petitioner is sentenced to undergo maximum imprisonment
for a period of 10 years in Special Case No.2 of 2003 and fine of
Rs.1,00,000/-. The sentence of imprisonment imposed for other
offences, is ordered to run concurrently. The period of detention
undergone by the Petitioner from 10.4.2003 to 2.3.2011 is set off
under Section 428 of Cr.P.C.
3. The Petitioner was arrested on 10.4.2003 for committing
offences under POTA ( Mulund, Ghatkoper, Vile Parle and Bombay
Central Bomb Blast cases). He faced trial for the said offence in
Special Case No. 2 of 2003 and was in custody till 1.3.2011 i.e. for a
period of 7 years, 10 months and 22 days. He was convicted in the
said case by judgment dated 6.4.2016 for a period of 10 years.
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4. On 4.8.2012, i.e. after he was released on bail in POTA case, the
Petitioner came to be arrested in Crime No. I-131 of 2012 and he
faced trial in MCOCA Special Case No. 10 of 2012 with 6 of 2013. He
was remanded in the said case from time to time and was released on
bail on 31.10.2016. Thus, the Petitioner was in custody in MCOC
Special Case No.10 of 2012 for a period of 6 months and 24 days.
The said case is still pending trial.
5. The petitioner has claimed that he was in custody as an
undertrail Prisoner in MCOC Case No. 10 of 2012 till 31.10.2016. In
the course of trial of POTA Case No. 2 of 2003, he was produced
before the POTA Court under production warrant. In Writ Petition
4047 of 2016, the Petitioner has claimed that he was produced in
POTA Case No 2 of 2003 from 7.9.2012, whereas in Writ Petition
No.2285 of 2016 the Petitioner has claimed that he was produced
before POTA Court in Pota Case No. 2 of 2003 from 1.9.2012. The
Petitioner claims that since he was an undertrial prisoner in MCOC
case and was produced before POTA Court under production
warrant, the period of detention undergone in MCOC Case should be
set off against the sentence of imprisonment in POTA case.
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6. In Writ Petition No. 4047 of 2016 he has sought set off from
7.9.2012 to 6.4.2016, whereas in Writ Petition No. 2285 of 2016 he
has sought set off from 1.9.2012 to 6.4.2016.
7. Shri Pasbola, the learned Counsel for the Petitioner has
submitted that the Petitioner was admittedly in custody in MCOC
Special Case No. 10 of 2012 as undertrial prisoner from 4.8.2012.
While he was in custody in MCOC Case, he was produced in POTA
Case under production warrant. He has submitted that in terms of
Section 428 Cr.P.C. the period during which he was produced before
POTA Court under production warrant is required to be set off as
against the period of imprisonment imposed in the said case. He has
submitted that in State of Maharashtra vs. Najakat @ Mubarak
Ali1, the Apex Court has clearly laid down that the words "same case"
do not suggest that set off would be available only if the period
undergone as undertrial prisoner is in connection with the same case
in which he was later convicted and sentenced to imprisonment and
that the words "same case" merely denote pre-sentence period of
detention undergone by the accused and nothing more. Shri
1 2008 Cri.L.J. 2588
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Pasbola, has further submitted that the Petitioner was released on
bail in POTA Special Case No. 2 of 2003. He was produced in the
said case under production warrant and was thereafter remanded to
judicial custody, and this fact indicates that he was deemed to be in
custody in the said case.
8. Ms. Salian, the learned Spl.PP for the State has submitted that
the words "same case" in Section 428 of Cr.P.C. clearly indicate that
in terms of Section 428 Cr.P.C. only the period undergone by the
petitioner in the "same case" can be set off. She has submitted that
the facts of the case in Najakatali (supra) are distinguishable and
hence the ratio laid down in the said case is not applicable to the
facts of the present case.
9. We have perused the records and considered the submissions
advanced by the learned Counsel for the Petitioner and the learned
Spl.PP for the State. Before adverting to the facts of the present
case, it would be necessary to refer to Section 428 of Cr.P.C. which
reads as under:
428. Period of detention undergone by the accused to
be set off against the sentence of imprisonment.-
Where an accused person has, on conviction, been
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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, any, of the term of imprisonment imposed
on him.
10. In Najakatali (supra) the accused had been convicted and
sentenced to imprisonment in two criminal cases. He was arrested
on the same day in both the cases and he remained in jail as an
undertrial during the same period in both the cases. The question
before the Apex Court in the said case was whether it was permissible
for the accused to claim the benefit of set off and discharge under
section 428 of Cr.P.C. in both the cases. While answering the said
question, the Apex Court held that :
"15. The purpose is therefore clear that the convicted
person is given the right to reckon the period of his sentence
of imprisonment from the date he was in jail as an
undertrial prisoner. In other words, the period of his being in
jail as an undertrial prisoner would be added as a part of the
period of imprisonment to which he is sentenced. We may
now decipher the two requisites postulated in Section 428 of
the Code.
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(1) During the stage of investigation, inquiry or trial of a
particular case the prisoner should have been in jail at least
for a certain period.
(2) He should have been sentenced to a term of
imprisonment in that case.
16. If the above two conditions are satisfied then the
operative part of the provision comes into play i.e. if the
sentence of imprisonment awarded is longer than the period
of detention undergone by him during the stages of
investigation, inquiry or trial, the convicted person need
undergo only the balance period of imprisonment after
deducting the earlier period from the total period of
imprisonment awarded. The words if any in the section
amplifies that if there is no balance period left after such
deduction the convict will be entitled to be set free from jail,
unless he is required in any other case. In other words, if the
convict was in prison, for whatever reason, during the
stages of investigation, inquiry or trial of a particular case
and was later convicted and sentenced to any term of
imprisonment in that case the earlier period of detention
undergone by him should be counted as part of the sentence
imposed on him.
17. In the above context it is apposite to point out that
very often it happens when an accused is convicted in one
case under different counts of offences and sentenced to
different terms of imprisonment under each such count, all
such sentences are directed to run concurrently. The idea
behind it is that the imprisonment to be suffered by him for
one count of offence will, in fact and in effect be
imprisonment for other count as well.
18. Reading Section 428 of the Code in the above
perspective, the words 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. The period during
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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.
It is immaterial that the prisoner was undergoing sentence
of imprisonment in another case also during the said period.
The words of the same case were used to refer to the pre-
sentence period of detention undergone by him. Nothing
more can be made out of the collocation of those words."
11. The facts of the present case are distinguishable. In the instant
case, the Petitioner was in custody in POTA Special Case No. 2 of
2003 from 10.4.2003 till 1.3.2011. The period undergone by him
from 10.4.2003 to 1.3.2011 as an undertrial prisoner is admittedly
set off in terms of Section 428 of Cr.P.C. The question is about
setting off the period from 1.9.2012 till 6.4.2016.
12. It is to be noted that the petitioner was on bail in POTA Special
Case No.2 of 2003 from 2.3.2011. In other words, unlike in the case
of Najakatali (supra) the Petitioner was not a undertrial prisoner in
both the cases. He was already released on bail in POTA Special
Case No. 2 of 2003 on 2.3.2011, hence was not a undertrial prisoner
in the said case during the period between 1.9.2012 till 6.4.2016.
During this period the Petitioner was a undertrial prisoner in MCOC
Case No. 10 of 2012. This period is sought to be set off as against the
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period of imprisonment imposed in POTA Special Case No. 2 of 2003
wherein he was already released on bail. The facts of this case are
therefore distinguishable and the principles laid down in Najakatali
(supra) are not strictly applicable to the Petitioner's case.
13. At this stage we would like to make a reference to the judgment
of the Apex Court in Atul Manubhai Parekh vs. Central Bureau of
Investigation2. The question involved in the said case was whether a
person who has been convicted in several cases and has suffered
detention or imprisonment in connection therewith would be entitled
for the benefit of set off in a separate case for the period of detention
or imprisonment undergone by him in the other cases. The Apex
Court, after considering the principles laid down by the Three Judge
Bench in Najakatali (supra), and also the scope of Section 428 of
Cr.P.C. has held as under:
8. From the wording of Section 428 it is clear that what is
to be set-off 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
2 (2010) 1 SCC 603
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connection with other cases can be counted towards set-
off 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. However, even in Najakat Alia's case, one
of the three Hon'ble Judges took a dissenting view that
set-off 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).
9. 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.
10. 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 pre-
trial detention in various cases is counted for set-off 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. 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
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of sentence does not arise and the period of set-off is in
respect of each separate case and the detention
undergone by the accused during the investigation or
trial of such case. 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."
11. In fact, a similar situation arose in the case of
Maliyakkal Abdul Azeez vs. Asstt. Collector, Kerala & Anr.
[(2003) 2 SCC 439], wherein it was sought to be argued
on behalf of the petitioner that he was entitled to the
benefit of set-off under 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 setting-off of the period of detention as an
undertrial prisoner against the sentence of imprisonment
imposed on the accused.
12. The decision in the case of Maliyakkal Abdul Azeez
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(supra) was rendered after the decision in Najakat Alia's
case (supra) and we respectfully follow the same as it
reiterates the law laid down in the earlier cases such as in
the case of Anne Venkateswara Rao (supra), Raghubir
Singh (supra) and Champalal Punjaji Shah (supra).
13. The facts on which the decision was rendered in
Najakat Alia Mubarak Ali's case are distinguishable from
the facts of this case. In the said case, the convict was
undergoing imprisonment in two cases in which he had
been convicted and he claimed that he was entitled to
set-off in respect of both the cases. This Court drawing
inspiration from Section 427 on the concurrent running
of sentences, held that the petitioner was entitled to set-
off in both cases in view of the doctrine of merger of
sentences when directed to run concurrently in a
particular case where conviction is on many counts.
14. At this stage, we may also refer to the decision of this Court in
Sanjay Shriram Gondchar v. State of Maharashtra 3, wherein
another Division Bench of this Court while dealing with the similar
issue has held that the Petitioner is not entitled to get the period of
under trial imprisonment suffered in one case for set-ff against the
sentence to be undergone in another case.
15. In the light of above, in our considered view, the period
undergone by the Petitioner in MCOC Case No. 10 of 2012 cannot be
set off as against the sentence imposed in POTA Case No. 2 of 2003.
3 2012 BCR (Cri) 472
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Hence, both the petitions are dismissed. Rule is discharged.
16. In view of dismissal of the writ petitions, Criminal Application
No. 290 of 2016 does not survive and the same is also rejected.
(ANUJA PRABHUDESSAI, J.) (RANJIT MORE, J.)
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