- (1.) This is a petition by the appellant of Criminal Appeal No.2 of 1970 (Suprovat Bose v. The State of West Bengal) to set off the period of detention undergone by him during investigation and trial against the term of imprisonment imposed upon him, in accordance with section 428 Cr.P.C.
(2.) Section 428 of the Code of Criminal Procedure, 1973 is as follows: ?Whether the accused person has, on conviction, been sentenced to imprisonment for a term the period of detention, if any, undergone by him during investigation, enquiry or trial of the same case and before the date of such conviction, shall be set off against the terms of imprisonment imposed on him on such conviction and the liability of such persons who undergo imprisonment on such conviction shall be restricted to the remainders, if any, of the terms of imprisonment imposed on him.?
(3.) The Supreme Court, in the case of (1) B. P. Andre v. The Superintendent, Central Jail Tihar Jail, New Delhi and another reported in AIR 1975 SC 164 specifically held that where the accused person has been convicted and is still serving his sentence at the date when the new Code of Criminal Procedure came into force section 428 would apply and the connected person would be entitled to claim that the period of detention undergone by him during the investigation, enquiry or trial of the case should be set off against the terms of imprisonment imposed on him and he should be required to undergo only the remainder of the term. In the said case the Supreme Court was in seisin of the matter as a writ petition under Article 32 of the Constitution was made before it after another petition on Habeas Corpus before the Delhi High Court had failed. The Delhi High Court held the view that since the conviction made by the Sessions Court had taken place prior to the coming into force of new criminal procedure section 428 had no application and the petitioner was bound to suffer imprisonment for the full term of three years. The Supreme Court differed from the Delhi High Court decision and approved of two other decisions, one by the Andhra Pradesh High Court, (2) Biddina Jogannadham v. The Superintendent, Central Jail, Vishakapattnam, reported in 74(2) Andhra Pradesh Law Journal 302 and the other of the Bombay High Court in (3) N. Nambesam v. The State of Maharastra, 76 Bombay Law Journal 670. The Supreme Court ordered that the petitioner be set at liberty forthwith. In another decision (4) Hardev Singh v. The State of Punjab AIR 1975 SC 179 the Supreme Court in a criminal appeal allowed the appeal in part and at the same time held that the appellant was entitled to get a set off or adjustment under section 428 of the Criminal Procedure Code of1973 of the period, if any, during which he remained in jail as an under trial prisoner.;