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TMI Blog2004 (9) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... secution, he was found guilty and was convicted by the General Security Court and was sentenced to undergo life imprisonment and also directed his dismissal from his service vide order dated 17-7-1992. The petitioner-prisoner was transferred to Nagpur Central Prison, Nagpur on 26-12-1993 for undergoing the sentence. 4. Prior to the conviction, the petitioner was in custody of Border Security Force Police from the date of his arrest, i.e. 29-6-1991 till the date of his conviction, and therefore, he was in detention as an under-trial prisoner for the period of 1 year 7 days. He claimed the benefit of Section 428 of the Criminal Procedure Code (for short, the Code) and also benefit of the provisions of Section 121-A of the B.S.F. Act by making representation to the respondent Nos. 1 and 2 through respondent No. 3 vide letter dated 29-2-2001. The respondent Nos. 1 and 2 communicated to respondent No. 3 vide letter dated 14-3-2002 that the petitioner is not entitled for the benefit of set off for the period he was in detention as an under-trial prisoner before conviction. This communication cum order dated 14-3-2002 has been challenged in this petition. 5. The learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be introduced in the B.S.F. Act w.e.f. 1-9-2000 which cannot be made applicable retrospectively. He therefore contended that the petitioner was tried and convicted under the Border Security Force Act which is a special law and since the amended provision of Section 121A is prospective in application and the petitioner was convicted on 17-7-1992, question of granting benefit under the said provision or under Section 428 of the Code does not arise. Secondly, the petitioner is convicted and sentenced to suffer imprisonment for life and not for a term therefore otherwise also the provision of Section 121A of the B.S.F. Act or Section 428 of the Code will not be applicable as held in Kartar Singh v. State of Harayana, , and therefore, the impugned order passed by respondent Nos. 1 and 2 is perfectly legal and correct and no interference into the same is warranted. 7. We have carefully considered the contentions canvassed by the learned counsel for the parties. It is undisputed position that Section 121A of the B.S.F. Act has been introduced in the Border Security Force Act w.e.f. 1-9-2000 and the petitioner-prisoner has been convicted by the Border Security Court by the order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim under Section 428 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 term. This construction of the Section does not offend against the principle which requires that unless the legislative intent is clear and compulsive, no retrospective operation should be given to a statute. On this interpretation, the Section is not given any retrospective effect. It does not seek to set at naught the conviction already recorded against the accused person. The conviction remains intact and unaffected and so does the sentence already undergone. It is only the sentence, insofar as it yet remains to be undergone, that is reduced. The Section operates prospectively on the sentence which yet remains to be served and curtails it by setting off the period of detention undergone by the accused person during the investigation, inquiry or trial of the case. Any argument based on the objection against giving retrospective operation is, therefore, irrelevant. The same conclusion as to construction of Section 428 is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be set off against the sentence of imprisonment imposed upon him. There are no words of limitation either in the Section or in its marginal note which would justify restricting the plain and natural meaning of the word term so as to comprehend only sentences which are imposed for a fixed or ascertainable period. 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 grammer 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 under-trial 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. Overruled. Decision of Delhi High Court Reversed. Therefore, the contention of respondents that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We fail to see any departure from the ratio of Godse's case : on the contrary the aforequoted passage clearly shows approval of that ratio and this becomes further clear from the final order passed by the Court while allowing the appeal/writ petition. The Court directed that the period of detention undergone by the two accused as undertrial prisoners would be set off against the sentence of life imprisonment imposed upon them, subject to the provisions contained in Section 433A and, 'provided that orders have been passed by the appropriate authority under Section 433 of the Code of Criminal Procedure.' These directions make it clear beyond any manner of doubt that just as it the case of remissions so also in the case of set off the period of detention as undertrial would ensure to the benefit of the convict provided the appropriate Government has chosen to pass an order under Sections 432/433 of the Code. The ratio of Bhagirath's case, therefore, does not run counter to the ratio of this Court in the case of Godse or Maru Ram 11. The Border Security Force authorities did not dispute that the petitioner was in detention for more than one year as an under trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not 'affect' the B.S.F. Act, the question whether this Section is a 'specific provision to the contrary' within the meaning of Section 5 of the Code is redundant. We are in respectful agreement with the view taken by the Calcutta High Court in the case of Anand Singh Bishit. However, it may be mentioned that the time when the conviction of the petitioner was recorded, Section 121A was not in existence in the B.S.F. Act, and therefore, by virtue of the application of Section 5 of the Code it must be held that the beneficent provision under Section 428 of the Code is fully and totally applicable to the sentences imposed under the B.S.F. Act and the question whether this Section is a specific provision to the contrary within the meaning of Section 5 of the Code, would be redundant. 14. In view of the aforesaid legal position, it is obvious that where a member of the Border Security Force is sentenced to imprisonment, on his conviction by Security Force Court under the B.S.F. Act of 1968 for the offence punishable under Section 302 of the Indian Penal Code read with Section 46 of the B.S.F. Act, is entitled to the benefit of Section 428 of the Code and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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