KALIDAS VANMALIBHAI Vs. STATE OF HARYANA
LAWS(GJH)-1979-1-20
HIGH COURT OF GUJARAT
Decided on January 15,1979

KALIDAS VANMALIBHAI Appellant
VERSUS
STATE Respondents

JUDGEMENT

M.P.THAKKAR - (1.) . The claim of a convict sentenced to suffer a term of imprisonment for life for setting off the period of his pre-conviction detention during investigation enquiry and trial having been repelled by the learned Sessions Judge on taking an amazing and unprecedented view that sentence of imprisonment for life is not a sentence for a term of imprisonment within the meaning of sec. 428 of the Code of Criminal Procedure of 1973 the convict has sought redress in this Court
(2.) The relevant provision sec. 428 which provides for set off in respect of the period of pre-conviction detention undergone by the convict as an under-trial prisoner reads thus:- "428 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 enquiry 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". On a plain reading of the provision it is clear that this benefit has been conferred on all convicts regardless of the provision under which the conviction has been recorded. The benefit of sec. 428 can be claimed even by a convict who has been convicted for an offence of murder under sec. 302 of the Indian Penal Code. There is no rational basis for discriminating between convicts who have been convicted for an offence of murder under sec. 302 of the Indian Penal Code on one hand and the convicts who are undergoing a sentence of imprisonment in respect of other offences. The learned Sessions Judge appears to have placed a strange interpretation on the expression imprisonment for a term. The view taken by him is that since the Legislature has employed the expression term if the period is not defined in terms of years a convict is not entitled to claim the benefit of sec. 428. The interpretation placed by him is altogether untenable. No doubt a sentence of imprisonment for a life term does not confer a right on the convict to be set at liberty on completion of the period of 20 years less the remissions earned by him under the relevant rules as per the law declared by the Supreme Court in Gopal Vinayak Godse v. The State of Maharashtra and others (1961) 3 S. C. R. 440. Though theoretically it is a sentence for the duration of life as discussed in Godses case (supra) such a convict is also entitled to remission earned under the relevant rules on several counts such as :- (a) Ordinary remission (b) Special remission (c) Physical training remission (d) Literary remission (e) Annual good conduct remission (f) State remission. And the remission is usually granted by the State. It is well known that though a sentence of life term means a sentence for the whole of the remaining period of the convicts natural life remissions earned as per the aforesaid rules are taken into account and the convicts are generally released before the completion of 20 years. This reality cannot be elbowed into oblivion. Just as set off is given for the remissions earned a convict would be entitled to set off in respect of the period of pre-conviction detention. Moreover the interpretation placed by the learned Sessions Judge is contrary to established practice. All the convicts who are sentenced to suffer a term of imprisonment for life have been accorded this benefit since the enforcement of the Code of Criminal Procedure of 1973. There is no ambiguity whatsoever and neither any principle of interpretation nor any policy consideration compels one to adopt such a truncated view which has never been canvassed so far. It is difficult to comprehend why the learned Sessions Judge was obliged to take this narrow and impossible view in regard to the interpretation of a beneficial provision which seeks to treat the convicts fairly by giving credit for a period of detention undergone by the convict concerned during investigation or enquiry or trial as an undertrial prisoner. If the other convicts are entitled to claim the benefit of the period of detention already undergone there is no reason why the convicts who have been sentenced to a term of life imprisonment should not be permitted to take the advantage of this beneficient provision. The expression term (duration) is equally applicable to a sentence of imprisonment for life. A life term does not cease to be a term of imprisonment because the number of years are not specified.
(3.) We therefore allow this petition reverse the order of the learned Sessions Judge and direct that the petitioner shall be granted the benefit of set off under sec. 428 of the Code of Criminal Procedure of 1973 by giving credit for the period of detention undergone by him during the investigation enquiry and trial. Rule is made absolute. Application allowed.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.