Madras High Court
Varadarajan vs The Superintendent Of Prison on 17 January, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
Crl.O.P.No.1256 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.01.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
Crl.O.P.No.1256 of 2025
Varadarajan
S/o.Meenakshi Sundaram .. Petitioner
vs.
1.The Superintendent of Prison,
Central Prison, Coimbatore.
2.The State represented by
The Inspector of Police,
Sulur Police Station,
Coimbatore.
Crime No.594 of 2014 .. Respondents
Prayer: Criminal Original Petition under Section 528 of B.N.S.S.
equivalent to Section 482 of Cr.P.C. praying to direct the first respondent to
set off the petitioner's remand period from 28.11.2014 to 07.01.2015 as an
under-trial prisoner in connection with the case in C.C.No.546 of 2017 on
the file of Judicial Magistrate, Sulur, Coimbatore.
For Petitioner : Mr.R.Vivekananthan
For Respondents : Mr.S.Vinoth Kumar
Government Advocate [Crl.side]
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Crl.O.P.No.1256 of 2025
ORDER
Heard the learned counsel on either side.
2. The petitioner was convicted for the offence under Section
392 IPC and sentenced to three years rigorous imprisonment vide judgment
dated 27.07.2018 in C.C.No.546 of 2017 on the file of Judicial Magistrate,
Sulur, Coimbatore. Questioning the same, the petitioner filed C.A.No.335 of
2018 before the I Additional District and Sessions Judge, Coimbatore,
which was dismissed vide judgment dated 17.12.2018. Challenging the
same, the petitioner filed Crl.R.C.No.101 of 2019 before this Court and the
same was dismissed by order dated 02.02.2021. Aggrieved by the same, the
petitioner filed Special Leave Appeal (Crl.) No.6950 of 2023 before the
Honourable Supreme Court of India, which was also dismissed vide
judgment dated 09.10.2023. The only request made by the petitioner in this
petition is that the pre-trial incarceration suffered by him should be set-off.
https://www.mhc.tn.gov.in/judis
3. Learned counsel for the petitioner draws my attention to
Section 428 of the Code of Criminal Procedure, which reads as follows:
"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 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."
As rightly pointed by the learned counsel for the petitioner, it is mandatory
in nature.
4. It is further submitted by the learned counsel for the
petitioner that this provision can be invoked even by filing a miscellaneous
petition before the Court at any time. In support of his contention, the
judgment in Suraj Bhan v. Om Prakash and another [(1976) 1 SCC 886]
is pressed into service. This decision was followed by a learned Judge of
this Court vide order dated 11.09.2020 in Crl.O.P.No.5814 of 2020.
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G.R.SWAMINATHAN, J
rka/gm
5. In the instant case, the petitioner was arrested on 28.11.2014
and he was granted bail on 07.01.2015. This period from 28.11.2014 to
07.01.2015 is directed to be set off in terms of Section 428 Cr.P.C.
Accordingly, this Criminal Original Petition is allowed.
17.01.2025
Note: Issue order copy by 21.01.2025
Neutral Citation: Yes/No
Index: yes/no
Speaking Order/Non-Speaking Order
rka/gm
To
1.The Judicial Magistrate,
Sulur, Coimbatore.
2.The Superintendent of Prison,
Central Prison, Coimbatore.
3.The Inspector of Police,
Sulur Police Station,
Coimbatore. Crime No.594 of 2014
4.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
