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TMI Blog1974 (11) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... the term of imprisonment imposed on the petitioner came to an end on 12th August, 1974 and his detention since that date was contrary to law. 2. The question which arises for determination in this petition is a narrow one and it rests on the true interpretation of Section 428. In this section confined in its application only to cases where a person is convicted after the coming into force of the new code of Criminal Procedure, or does it also embrace cases where a person has been convicted before but his sentence is still running at the date when the new CrPC came into force? It is only if the latter interpretation is accepted that the petitioner would be entitled to claim the benefit of the section and hence it becomes necessary to arrive at its proper construction. Section 428 reads as follows : Where an accused person has, on conviction, been sentenced to imprisonment for a term, 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which must exist in order to attract the applicability of the section and this fact situation would be satisfied equally whether an accused person has been convicted and sentenced before or after the coming into force of the new CrPC. Even where an accused person has been convicted and sentenced prior to the coming into force of the new CrPC but his sentence is still running, it would not be inappropriate to say that the accused person has, on conviction, been sentenced to imprisonment for a term . Therefore, where an accused person has been convicted and he is still serving his sentence at the date when the new CrPC came into force, Section 428 would apply and he would be entitled to claim that the period of detention undergone by him during the investigation, inquiry or trial of the case should be set off against the term of imprisonment imposed on him and he should be required to undergo only the remainder of the terms of course, if the term of the sentence has already run out, no question of set off can arise. It is only where the sentence is still running that the section can operate to restrict the term. This construction of the section does not offend against the princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of that state of affairs. We must, therefore, imagine the sentence imposed upon the petitioner as one imposed under the new CrPC and then give effect to all the consequences and. incidents which would inevitably flow from or accompany a sentence imposed under the new CrPC. Now, there was no dispute before us that Section 428 would be clearly applicable where an accused person has been sentenced to imprisonment under the new CrPC The applicability of Section 428 was resisted only on the ground that it does not apply to a case where an accused person has been sentenced under the old CrPC. But if the sentence imposed on the petitioner, though under the old CrPC, is to be regarded, for the purposes of the new Code, as a sentence passed under the new Code and all the consequences and incidents are to be worked out on that basis, Section 428 must clearly be held to be applicable to the case of the petitioner and his liability to undergo imprisonment must be restricted to the remainder of the term imposed on him, after setting off the period of for which he was detained during the investigation, inquiry and trial of the case against him. 5. The State, however, raised one further con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt in prison for very long period as under-trial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as under-trial prisoner. Indeed, there may even be cases who such a person is acquitted. No doubt, sometimes courts do take. into account the period of detention undergone as under-trial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is not always the case so that in many cases, the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The committee has also noted that a Urge number of persons in the overcrowded jails of today are under trial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs. 6. We fail to see how, having regard to this object of Section 428, any differentiation can be made between a substantive sentence of imprisonment and a sentence of imprisonment in default of payment of fine. The nature of the mischief arising by reason of the accused person being made to suffer jail life for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e term of imprisonment imposed and whatever be the factors taken into account by the Court while imposing the term of imprisonment. It does not say that where the pre-conviction detention of an accused person has already been taken into account by the Court while imposing the term of imprisonment on conviction, no set off of such pre conviction detention shall be permitted, and if the legislature has not introduced any such exception, we cannot read it into the section by a process of judicial construction. To read such an exception into the section would be to do violence to the language of the section and read with words which are not there. That is clearly impermissible according to well recognised cannon of construction. It is quite understandable that the legislature has not introduced any such exception, because very often the factors which weigh with the Court in imposing a particular term of imprisonment are not articulated and in many cases it would be a matter of speculation whether and to what extent the fact that an accused person was in detention prior to his conviction must have weighed with the Court in imposing a sentence of imprisonment. 8. We may point out that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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