Madras High Court
Sudharshan vs The Superintendent Of Prison on 27 November, 2023
Author: M.Sundar
Bench: M.Sundar
W.P(MD)No.23758 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.11.2023
Coram
THE HON'BLE MR.JUSTICE M.SUNDAR
and
THE HON'BLE MR. JUSTICE R.SAKTHIVEL
W.P(MD)No.23758 of 2023
Sudharshan .. Petitioner
vs
1.The Superintendent of Prison,
Trichy Central Prison,
Trichy.
2.The Inspector of Police,
K.K.Nagar Police Station,
Trichy. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of Certiorarified Mandamus calling
for the entire records pertaining to the impugned order passed by the
first respondent made in No.20597/Tha.Ku.1/2023, dated 22.09.2023
and quash the same as illegal, consequently direct the respondent No.1
to set off the remand period undergone by the petitioner's father from
09.09.2012 to 18.02.2013 and from 22.12.2013 to 24.06.2014 in
S.C.No.137 of 2013 on the file of learned II Additional District and
Page Nos.1/19
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W.P(MD)No.23758 of 2023
Sessions Judge, Tiruchirappalli further to calculate and include those
days with conviction period under Section 428 of the Criminal
Procedure Code in accordance with law.
For Petitioner : Mr.M.Naveesh Ahamed
for Ms.M.Sudharani
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
[Order of the Court was made by R.SAKTHIVEL, J.]
This Writ Petition has been filed by the petitioner praying to
quash 'the order dated 22.09.2023 bearing reference No.20597/Tha.Ku.
1/2023 passed by the first respondent' [henceforth, referred to as
'impugned order' for the sake of convenience and clarity] as illegal and
consequently direct the first respondent to set off the remand periods
already undergone by the 'petitioner's father' [henceforth, referred to as
'prison inmate' for the sake of convenience and clarity] from 09.09.2012
to 18.02.2013 and from 22.12.2013 to 24.06.2014 in Sessions Case No.
137 of 2013 on the file of learned II Additional District and Sessions
Judge, Tiruchirappalli under Section 428 of 'the Criminal Procedure
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Code, 1973 (Act No.2 of 1974)' [henceforth, referred to as 'Cr.P.C.' for
the sake of brevity]
2. When this Writ Petition came up before this Court on
03.11.2023, this Court made the following order:
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
[Order of this Court was made by M.SUNDAR, J.]
This proceedings has to be read in conjunction
with and in continuation of earlier proceedings made by
Hon'ble Predecessor Coordinate Bench in the listing on
29.09.2023 which reads as follows:
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2. The main writ petition assails an order
dated 22.09.2023 bearing reference No.20597/j.F.1/2023
made by the 1st respondent as regards the set off of remand
period incarceration qua the terms of imprisonment.
3. Learned Prosecutor submits that if the
report of the II Additional District Judge, Tiruchirappalli,
shows the remand period incarceration, the 1st respondent
really does not have a say in the matter and the set off can
follow. In other words, the Prosecutor does not have any
objection if the remand period report enures to the benefit of
the petitioner as there is no other sentence qua the prison
inmate.
4. We now direct the Registry to send a copy of this
proceedings forthwith and requisition II Additional District
Judge, Tiruchirappalli, to send a report forthwith in such a
manner that the report reaches this Court by 15.11.2023. It
is open to the petitioner to file a memo in the Court of II
Additional District Judge, Tiruchirappalli, enclosing a copy
of this order bringing to the notice of the learned Judge the
instant proceedings.
5. List a fortnight hence.
6. List on 17.11.2023.
[M.S.,J.] [R.S.V.,J.]
03.11.2023
3. On 17.11.2023, this Writ Petition was re-notified and
posted for today.
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4. A report dated 16.11.2023 sent by the II Additional
District Judge, Tiruchirappalli is placed before this Court in compliance
of the above-mentioned proceedings dated 03.11.2023. A scanned
reproduction of the said report dated 16.11.2023 is as follows:
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5. This Court has perused the above-mentioned report. In the
first page of the report, it has been stated that 'the accused was arrested
by the 2nd respondent and remanded to the judicial custody on
09.09.2013'. The said date i.e. 09.09.2013 ought to be '09.09.2012' in
view of the latter portion of the report. It appears to be a typographical
error.
6. The above-mentioned report would reveal as follows:
(i) The prison inmate was arrested in connection
with S.C.No.137 of 2013 and remanded to judicial
custody on 09.09.2012. Thereafter, the prison inmate was
enlarged on bail on 18.02.2013. However, the prison
inmate was again arrested on execution of Non-Bailable
Warrant and remanded to judicial custody on 21.12.2013
and he was in prison till the date of the Judgment i.e.
25.06.2014. In short, the prison inmate was in prison
during the time periods, one from 09.09.2012 to
18.02.2013 and, another from 21.12.2013 to 24.06.2014
as pre-conviction detention period.
(ii) Further, the prison inmate was convicted vide
Judgment dated 25.06.2014 passed in S.C.No.137 of
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2013 and sentenced to undergo imprisonment for life and
pay a fine of Rs.5,000/-, in default thereof, to undergo
simple imprisonment for a further period of 6 months for
the offence punishable under Section 302 of the Indian
Penal Code, 1860 (Act No.45 of 1860).
(iii) Since the prison inmate was sentenced to life
imprisonment, no order was passed for set off under
Section 428 of Cr.P.C.
7. It is apposite to extract Section 428 of the Cr.P.C. & Rule
76 of 'the Criminal Rules of Practice, 2019' (w.e.f. 01.01.2020)
[henceforth, referred to as 'Crl.R.P.' for the sake of brevity]. They are
extracted hereunder:
Section 428 of Cr.P.C.:
“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 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
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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.
[Provided that in cases referred to in section 433A,
such period of detention shall be set off against the period of
fourteen years referred to in that section.] *Amendment by
Act 25 of 2005 (w.e.f. 23-06-2006)”
Section 76 of Crl.R.P.:
76. Sentences of imprisonment how calculated.— (1)
In calculating sentences of imprisonment, the day on which
the sentence is passed and the day of release ought to be
included and considered as days of imprisonment; for
example, a man sentenced on the 1st January to one month’s
imprisonment should be released on the 31st January and
not on the 1st February.
(2) The Court shall also give the details of the remand
period and the period of set off under section 428 of the
Code in the judgment and in the committal warrant.
(3) When two or more sentences are passed in a case,
the Court shall, in the committal warrant, specify whether
the sentences are to run concurrently or consecutively.
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8. The question as to whether a person who has been
convicted for life imprisonment is entitled to the benefit of set off under
Section 428 of Cr.P.C. remains no longer res integra.
9. A Constitution Bench of the Hon'ble Supreme Court in
Bhagirath's case [Bhagirath & Another Vs. Delhi Administration,
reported in (1985) 2 SCC 580] has held as follows:
“8. To say that a sentence of life imprisonment
imposed upon an accused is a sentence for the term of his
life does offence neither to grammar nor to the common
understanding of the word “term”. To say otherwise would
offend not only against the language of the statute but
against the spirit of the law, that is to say the object with
which the law was passed. A large number of cases in which
the accused suffer long undertrial detentions are cases
punishable with imprisonment for life. Usually, those who
are liable to be sentenced to imprisonment for life are not
enlarged on bail. To deny the benefit of Section 428 to them
is to withdraw the application of a benevolent provision from
a large majority of cases in which such benefit would be
needed and justified.
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9. ...
10. ...
11. ...
12. ...
13. We have considered with great care the reasoning
upon which the decision in Kartar Singh [(1982) 3 SCC 1 :
1982 SCC (Cri) 522 : AIR 1982 SC 1439 : (1983) 1 SCR 445
: 1982 Cri LJ 1772] proceeds. With respect, we are unable
to agree with the decision. We have already discussed why,
imprisonment for life is imprisonment for a term, within the
meaning of Section 428. We would like to add that we find it
difficult to agree that the expressions “imprisonment for
life” and “imprisonment for a term” are used either in the
Penal Code or in the Criminal Procedure Code in
contradistinction with each other. Sections 304, 305, 307
and 394 of the Penal Code undoubtedly provide that persons
guilty of the respective offences, shall be punished with
imprisonment for life or with imprisonment for a term not
exceeding a certain number of years. But, that is the only
manner in which the Legislature could have expressed its
intention that persons who are guilty of those offences shall
be punished with either of the sentences mentioned in the
respective sections. The circumstances on which the learned
Judges have placed reliance in Kartar Singh [(1982) 3 SCC
1 : 1982 SCC (Cri) 522 : AIR 1982 SC 1439 : (1983) 1 SCR
445 : 1982 Cri LJ 1772] , do not afford any evidence,
intrinsic or otherwise, of the use of the two expressions in
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contradistinction with each other. Two or more expressions
are often used in the same section in order to exhaust the
alternatives which are available to the Legislature. That
does not mean that there is, necessarily, an antithesis
between those expressions.”
10. Further, a Hon'ble Division Bench of Madras High
Court [Principal Seat of this Court] in Kumar's case [Kumar @ Kutty
and others Vs. State of Tamil Nadu, reported in Manu/TN/3212/2014 :
(2014) 2 LW(Cri) 789] has held as under:-
“7. Whenever the Government decides to GRANT
Pre- mature release, the Government will fix a definitive
period of detention for extending the benefit and would call
for reports from the Superintendent of Jails in the State. For
example, in G.O. Ms No. 1155 dated 11.09.2008, the
Government has said that, the G.O. will apply to “life
convicts who have completed 7 years of actual imprisonment
as on 15.09.2008”. At that time, the jail authorities will
identify the prisoners who have undergone the period of
detention fixed by the Government for being considered for
premature release. If the jail authorities do not have the pre-
conviction detention particulars of a prisoner, they will only
furnish to the Government the post- conviction detention
particulars. The prisoner cannot be made to suffer for the
fault of the Presiding Officer of the Court in not giving the
pre-conviction detention particulars of a prisoner to the jail
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authorities. Actus curiae neminemgravabit. [An act of the
Court shall prejudice no man]. If the prison authorities do
not send correct particulars to the Government, the prisoner
will be seriously prejudiced inasmuch as he will be held
disqualified for premature release though fully qualified.”
11. The said Hon'ble Division Bench directed the Trial
Courts as follows:-
“16. ... In the result, these petitions are allowed and
the convict prisoner in these cases are directed to be given
the period of set off under Section 428 Cr.P.C., as set out in
paragraph 10 above.
Before parting, we direct all the trial courts in the
State of Tamil Nadu:
(a) to refer to Section 428 Cr.P.C., and give details of
the period in prison already undergone by the accused in
that case upto the date of Judgment, be it conviction or
acquittal. If he has not undergone any period of detention in
that case prior to the judgment, that shall also be mentioned.
(b) to give the particulars relating to the period of
pre-conviction detention in the warrant of commitment.
(c) send a copy of the Judgment together with the
Warrant of Commitment to the Prison Authorities.
(d) ......"
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12. Further, another Hon'ble Division Bench of Madras
High Court [Principal Seat of this Court], following the Bhagirath's
case and relying on Kumar's case referred to supra, in the case of
A.Palaniswamy @ Palaniappan [The Home Secretary (Prison-IV),
Home Department and others Vs. A.Palaniswamy @ Palaniappan,
reported in 2021-2-L.W. (Crl.) 118 : (2021) 3 MLJ (Crl) 225] has held
as follows:
“14.4.Thus, in the light of the aforesaid
pronouncements and taking note of the underlying object
enshrined under Section 428 of the Code of Criminal
Procedure, 1973, we have no hesitation to hold that 'set off '
is permissible even for a life convict.”
13. Section 428 of Cr.P.C. is a mandatory provision,
requiring the Trial Courts to explicitly mention the pre-conviction
detention period undergone by the prison inmate/accused in the
Judgment and apply set off accordingly as per Section 428 of Cr.P.C.
This obligation extends to specifying the same in the warrant of
commitment [Judicial Form No.21, in Appendix to Crl.R.P. w.e.f.
01.01.2020] and the said obligation lies with the Trial Court, not with
the Jail Authorities.
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14. This Court deems fit to note that the Hon'ble Supreme
Court in the case of Suraj Bhan [Suraj Bhan Vs. Om Prakash and
another, reported in (1976) 1 SCC 886], in paragraph 7, has held as
follows:-
“7. ... The procedure to invoke Section 428 of the
Criminal Procedure Code, could be a miscellaneous
application by the accused to the court at any time while the
sentence runs for passing an appropriate order for reducing
the term of imprisonment which is the mandate of the
section.”
15. It is pertinent to note that the Hon'ble Supreme Court in
the case of Vinay Prakash Singh [Vinay Prakash Singh Vs. Sameer
Gehlaut and others, reported in 2022 SCC OnLine SC 1595], in
paragraph No.12, has held as under:-
“12. As far as Section 428 of Cr.P.C. is concerned, an
indispensable requirement to invoke Section 428 of Cr.P.C. is
that there must be a conviction. The conviction must be
followed by a sentence of imprisonment. It must be for a term
and it should not be imprisonment in default of payment of
fine. If these requirements exist, then the occasion opens up for
applying the beneficial provisions of Section 428 of Cr.P.C.
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However, for it to be invoked the existence of detention
undergone by the convict during investigation, enquiry or trial
in the ‘same case’ is indispensable. If these requirements are
satisfied, the convict would be entitled to the set off for the
period of detention which he has undergone.”
It is pertinent to note that in this case, both the remand periods i.e. from
09.09.2012 to 18.02.2013 and from 21.12.2013 to 24.06.2014 pertain to
the same case in S.C.No.137 of 2013.
16. In the light of the above legal position, the Trial Court
ought to have given set off the pre-conviction detention periods to the
prison inmate under Section 428 of Cr.P.C. Hence, this Court is inclined
to allow this Writ Petition. Accordingly, this Writ Petition is allowed
with the following terms:
(i) The impugned order dated 22.09.2023 bearing
reference No.20597/Tha.Ku.1/2023 passed by the first
respondent is quashed.
(ii) This Court directs the Trial Judge [II Additional
District and Sessions Judge, Tiruchirappalli] to call for the
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warrant of commitment issued in S.C.No.137 of 2013
from the Jail Authorities and incorporate the pre-
conviction detention period in the warrant of commitment
as per Section 428 of Cr.P.C. by way of amendment.
(iii) There shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.)
27.11.2023
Index : Yes
Neutral Citation : Yes
ps / jen
Note: All concerned to act on this order being uploaded in
official website of this Court without insisting on certified
copies. To be noted, this order when uploaded in official
website of this Court will be watermarked and will also have
a QR code
To
1.The Principal District Judge,
Tiruchirappalli.
2.The II Additional District and Sessions Judge,
Tiruchirappalli
3.The Superintendent of Prison,
Trichy Central Prison, Trichy.
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4.The Inspector of Police,
K.K.Nagar Police Station,
Trichy.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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M.SUNDAR, J.,
and
R.SAKTHIVEL, J.,
ps / jen
27.11.2023
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