Proper Interpretation Of Section 428 CrPC Dealing With Accused’s Entitlement To Set-Off: Supreme Court Refers To Larger Bench

The Superintendent of Prison, Central Prison – 1, Puzhal, Chennai, Tamil Nadu and the Inspector of Police, Q Branch, CID Police Station filed an appeal against the judgment of a Judge of the Madras High Court whereby the petition of the respondent under Section 482 of the Code of Criminal Procedure was allowed. In the petition, Venkatesan had sought that the remand period as an undertrial prisoner produced under P.T. (Prisoner Transit) warrant in S.C. No.2 of 2002, under Section 428 of the CrPC be set-off.

The Division Bench of Justice Dipankar Datta and Justice Manmohan held, “In view of our inability to reconcile the divergent views expressed in Najakat Alia Mubarak Ali (supra) itself and though such decision has been held in Atul Manubhai Parekh (supra) to be confined to its facts, under compelling circumstances, we feel it prudent to refer the matter to the Hon’ble the Chief Justice of India to consider the desirability of constituting a Bench of appropriate strength for proper interpretation of Section 428, Cr. PC.”

Sr. A.A.G. V. Krishnamurthy represented the Appellant while AOR S. Gowthaman represented the Respondent.

Factual Background

The convict Venkatesan belongs to the Tamil Nadu Liberation Army, an organisation banned by the Government of Tamil Nadu. With the objective of liberating Tamil Nadu from the Union of India, Venkatesan resorted to violent activities and, through armed struggle, has been involved in several incidents of crime. Upon full-fledged trial, Venkatesan was found guilty.

Issue

The question of law that the Apex Court was tasked to decide was whether, on the facts and in the circumstances, Venkatesan was entitled to the set-off for the three periods granted by the High Court in terms of Section 428, Cr. PC.

Reasoning

The Bench, at the outset, explained that Section 428 provides that the period of detention undergone by the accused be set off against the sentence of imprisonment. This section envisages that upon a conviction being recorded in a particular case, followed by a sentence to imprisonment for a term, set-off of pre-sentence detention period during the investigation, enquiry or trial of the same case. However, Section 427(1), Cr. PC, ordains that when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.

Coming to the facts of the case, the Bench noticed that Venkatesan was arrested and remanded to judicial custody in 1998. Venkatesan was arraigned as an accused in S.C. No.2 of 2002. He was not released from custody since he was involved in other criminal cases. Therefore, Venkatesan was again produced on PT warrant before the trial court, and his remand was extended. Venkatesan was convicted in Crime No.346 of 1993 and was produced under PT warrant in S.C. No.2 of 2002 and remanded in custody till April 22, 2009. On March 24, 2014, Venkatesan was convicted in S.C. No.12 of 2001, and during his detention period, he was produced under PT warrant from April 21, 2014, to December 23, 201,4 in S.C.No.2 of 2002. Thereafter, he was convicted on November 29, 2019 in S.C. No.2 of 2002 for the offences punishable under Sections 120-B, 148, 450, 395 r/w 397, 307 and 332 of IPC and sentenced to rigorous imprisonment varying from 3 years to 10 years and fined.

The trial court rejected Venkatesan’s plea for setting off his remand period produced under the PT warrant under Section 428, Cr. P.C., reasoning that according to Section 428, Cr. PC, there is no mention of the inclusion of the period during which the accused is produced on the strength of P.T. warrant while undergoing imprisonment in a different case. The High Court proceeded to decide the question of set-off claimed by Venkatesan, while relying on the decision of the Apex Court in State of Maharashtra v. Najakat Alia Mubarak Ali (2001). “A remedy of appeal having been provided by the Cr. PC, we are of the firm view that the High Court erred in law in entertaining the petition under Section 482, Cr. PC filed by Venkatesan”, the Bench said.

The Bench further noticed that Najakat Alia Mubarak Ali (supra) is a decision of a three Judge Bench of the Apex Court where Justice K.T. Thomas held that the period during which the accused was in prison after the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. However, Justice R.P. Sethi dissented with this view. The third Judge, Justice S.N. Phukan penned a short opinion saying that the provision states that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be one undergone by him during investigation, enquiry or trial in connection with the ‘same case’ in which he has been convicted.

The Bench thus said, “Faced with such a conundrum where the Hon’ble Judges have spoken in different voices, we attempted a reconciliation of the conflicting views. However, we are afraid, it has proved abortive. How far and to what extent the efficacy of the decision in Najakat Alia Mubarak Ali (supra) as a precedent would bind subsequent Benches of this Court remains debatable in view of the aforesaid apparent irreconcilable conflict.”

In light of the divergent views, the Bench referred the matter to the Chief Justice of India to consider the desirability of constituting a Bench of appropriate strength for proper interpretation of Section 428, Cr. PC. “The direction for set-off in the impugned order shall remain stayed until further orders; however, if Venkatesan has been released, he may not be taken back in custody”, it concluded.

Cause Title: The Superintendent of Prison & Anr. v. Venkatesan @ Senu @ Srinivasan @ Baskaran @ Radio @ Prakasam (Neutral Citation: 2025 INSC 541)

Appearance:

Appellant: Sr. A.A.G. V. Krishnamurthy, AOR Sabarish Subramanian, Advocates Vishnu Unnikrishnan, Azka Sheikh, Danish Saifi

Respondent: AOR S. Gowthaman, Advocate Selvam P

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