2004 (9) TMI 673 - HC - Indian Laws

Summary

Issues Involved:
1. Entitlement of the petitioner to set off the period of detention as an under-trial prisoner against the sentence of imprisonment.
2. Applicability of Section 428 of the Criminal Procedure Code (CrPC) and Section 121A of the Border Security Force (BSF) Act.
3. Retrospective application of Section 121A of the BSF Act.
4. Interpretation of the term "imprisonment for a term" in the context of life imprisonment.

Detailed Analysis:

1. Entitlement to Set Off Period of Detention:
The primary issue is whether the petitioner, convicted under Section 302 of the Indian Penal Code and Section 46 of the BSF Act, is entitled to set off the period of detention undergone as an under-trial prisoner before the date of conviction. The petitioner was in custody from 29-6-1991 until his conviction on 17-7-1992 and sought the benefit of Section 428 of the CrPC and Section 121A of the BSF Act.

2. Applicability of Section 428 CrPC and Section 121A BSF Act:
The petitioner argued that Section 428 of the CrPC, which provides for setting off the period of detention undergone by the accused as an under-trial against the sentence of imprisonment, should apply. The respondents contended that Section 121A of the BSF Act, introduced by the BSF (Amendment) Act 35 of 2000 and effective from 1-9-2000, is prospective and does not apply to the petitioner's conviction dated 17-7-1992. The court noted that Section 121A of the BSF Act is pari materia to Section 428 of the CrPC and should be interpreted similarly.

3. Retrospective Application of Section 121A BSF Act:
The court examined whether Section 121A of the BSF Act could be applied retrospectively. It referenced the Supreme Court's decision in B.P. Andre v. Supdt. Central Jail, which held that Section 428 of the CrPC applies to sentences still running at the date when the new CrPC came into force, without giving retrospective effect to the statute. The court concluded that Section 121A operates prospectively on the sentence yet to be served and does not retrospectively alter the conviction.

4. Interpretation of "Imprisonment for a Term":
The respondents argued that the benefit of Section 428 CrPC or Section 121A BSF Act does not apply to life imprisonment. The court referred to the Constitution Bench decision in Bhagirath v. Delhi Administration, which clarified that persons sentenced to life imprisonment are entitled to set off the period of detention undergone as under-trial prisoners. The court rejected the respondents' contention, affirming that life imprisonment is considered a term of imprisonment for the purpose of set off.

Conclusion:
The court held that the petitioner is entitled to the benefit of set off under Section 121A of the BSF Act read with Section 428 of the CrPC. The period of detention undergone by the petitioner as an under-trial prisoner must be set off against the term of imprisonment imposed upon him. The impugned order denying this benefit was quashed, and the respondents were directed to grant the set off accordingly. The rule was made absolute in these terms.