BOUCHER PIERRE ANDRE Vs. SUPERINTENDENT CENTRAL JAIL TIHAR NEW DELHI

JUDGEMENT

(1.) The petitioner was arrested on 10th November, 1971 in connection with an offence of theft which took place in the night between 31st October, 1971 and 1st November, 1971 in Rajasthan-Emporium at Ashoka Hotel, New Delhi. He was tried by the Additional Sessions Judge, Delhi and by an order dated l6th July, 1973 he was convicted of the offence under Section 380 of the Indian Penal Code and sentenced to rigorous imprisonment for four years and a fine of Rs. 10,000/- and in default of payment of fine, further rigorous imprisonment of one year. An appeal preferred by him to the High Court of Delhi failed and his conviction was confirmed but the substantive sentence of imprisonment was reduced to two years though the fine was enhanced to Rs. 15,000/- with one year's rigorous imprisonment in default. The order of the High Court in appeal was passed on 4th April, 1974. The petitioner did not pay the amount of fine and he was, therefore, liable under the order of the High Court to serve a maximum sentence of imprisonment for three years. Since the petitioner was continuing under detention from 10th November, 1971 during the investigation, enquiry and trial of the case against him, the petitioner contended that by reason of Section 428 of the new Code of Criminal Procedure, which came into force from 1st April, 1974, the period of detention from 10th November, 1971 upto 16th July, 1973 was liable to be set off against the term of imprisonment imposed upon him and he could be required to undergo imprisonment only for the remainder of the term which, after taking into account the remission granted on account of good behaviour, expired on 12th August, 1974. The petitioner claimed that he was, therefore, entitled to be freed on 12th August, 1974 and his detention in jail since that date was illegal. The petitioner filed an application for a writ of habeas corpus in the High Court of Delhi challenging the validity of his detention since 12th August, 1974 but the High Court took the view that since the conviction of the pensioner by the Sessions Court had taken place prior to the coming into force of the new Code of Criminal Procedure, Section 428 had no application and the petitioner was bound to suffer imprisonment for the full term of three years calculated from the date of conviction namely, 16th July, 1973. The habeas corpus application in the High Court having failed, the petitioner preferred the present writ petition directly in this Court under Art. 32 of the Constitution. This writ petition also claimed the same relief and the ground was also the same, namely, that by reason of Section 428, 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. Is 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 Code of Criminal Procedure 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:

(3.) We reach the same conclusion also by a different process of reasoning. Sub-Section (1) of Section 484 repeals the old Code of Criminal Procedure. But sub-section (2), clause (b), provides that notwithstanding such repeal, all sentences passed under the old Code of Criminal Procedure and which are in force immediately before the commencement of the new Code of Criminal Procedure shall be deemed to have been passed under the corresponding provisions of the new Code. The sentence of imprisonment and fine passed against the petitioner under the provisions of the old Code of Criminal Procedure must, therefore, be deemed to have been passed under the corresponding provisions of the new Code of Criminal Procedure. It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion. To quote the words of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council 1952 AC 109 at page No. 132: