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428 cr.p.c

(Querist) 25 May 2012 This query is : Resolved 
Dear experts,
One accused, facing two separate trial of a criminal case and is in judicial custody since three years. Now in both cases, he is convicted for RI three years. My question is on the aspect of 428 Cr.P.C that whether his custody period (already undergone in custody) shall be set-off either in one case or in both cases simultaneously ? if any ruling on this point, please quote.
deepak kumar (Expert) 25 May 2012
if he was remanded in both cases then his sentence will be set off from the date of remand in both cases seperately
SAINATH DEVALLA (Expert) 25 May 2012
yes.I agree,but what was mentioned in the orders,was it to undergo simultenaously or concurrently.

see section 428crpc:

Period of detention undergone by the accused to be set off against the sentence of imprisonment.
Where an accused person has, on conviction, been sentenced to imprisonment, for a term 1[not being imprisonment in default of payment of fine,] the period of detention, if any, undergone by him during the investigation, inquiry 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.
Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section
Adv.R.P.Chugh (Expert) 25 May 2012
Would be set off against the sentence awarded in both, if such custody was warranted in both the cases. for eg : if he was on bail in one - then such period cannot be set off vis-a-vis that sentence. I don't have any ruling, but this appears to me as logical !
kuldeep kumar (Expert) 25 May 2012
same case means same case of which conviction took place.minus the period undergone to the sentence finally impposed on him.wat is same case has already been explained in crpc.
kuldeep kumar (Expert) 25 May 2012
offcourse the free time enjoyed by him with his relatives will be excluded as that time is required in jail which ultimately fell upon him when conviction was actually maintained for the offence.
Nadeem Qureshi (Expert) 25 May 2012
Dear Querist
as per section 428 Cr.PC he can be released and the period of detention can be sett-off, but when the court pass an order u/s 427 CR.PC and direct that both the sentance shall run concurrently.
427. Sentence on offender already sentenced for another offence.


(1) 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:

Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.

(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
Feel free to call
deepak kumar (Expert) 26 May 2012
we are losing sight of the fact that there are two seperate criminal cases therefore there is no question of sentences being ordered to run concurrently.
regards
Rajan Salvi (Expert) 27 May 2012
- 1 -
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APELLATE JURISDICTION
CRIMINAL APPLICATION NO.254 OF 2005
Vilas Yadu Vairat ...Applicant
vs.
State of Maharashtra ...Respondent
Mr.Rajan Salvi for the Applicant
Ms S.D.Shinde,A.P.P. for State
CORAM: A.S.OKA,J.
DATE OF THE HEARING LAST ARGUMENTS: OCTOBER 6, 2005
DATE OF PRONOUNEMENT OF JUDGMENT : DECEMBER 5,2005
JUDGMENT:
1. This application has been received through jail where the
prayer is that the sentences awarded against the Applicant be
ordered to run concurrently. The Application has been filed
by the Applicant through jail. I have heard the Shri Rajan
Salvi, Advocate appointed as amicus curie to espouse the cause
of the Applicant. I have also heard the learned A.P.P. for
State.
2. The Applicant has been convicted for various offences.
The details of the conviction which are on record are as
under:
i) The Judgment and order dated 20th October
2000 passed by the learned Judicial
Magistrate First Class, Cantonment Court,
Pune in Regular Criminal Case No.109 of 2000
by which the Applicant was convicted for
- 2 -
offences under Section 454 read with Section
34 of the Indian Penal Code and was
sentenced to suffer rigorous imprisonment
for one year. By the same Judgment and
order the Applicant was convicted for
offence under Section 380 read with Section
34 of I.P.C. and was sentenced to suffer
rigorous imprisonment for one year. Under
the same Judgment a direction is given that
the aforesaid sentences and the sentences
passed in Regular Criminal case
Nos.161/2000, 106/2000, 169/2000, 168/2000,
170/2000, 171/2000 and 159/2000 shall run
concurrently.
ii) Regular Criminal Case no.94 of 1999 decided
by the learned Judicial Magistrate First
Class, Court No.8, Pune on 14th May 2002 by
which the Applicant was convicted under
Section 379 of the I.P.C. and was sentenced
to suffer rigorous imprisonment for 18
months.
iii) Regular Criminal case no.139 of 1998 decided
by the learned J.M.F.C., Court No.8, Pune by
Judgment and Order dated 1st August 2002 by
- 3 -
which the Applicant was convicted under
Section 457 of the I.P.C. and was sentenced
to suffer rigorous imprisonment for two
years. By the said order the Applicant was
also convicted for offence under Section 380
of the I.P.C. and was directed to suffer
rigorous imprisonment for two years. Both
the punishments were directed to run
concurrently.
iv) Regular Criminal case No.140 of 2000 decided
by the learned Judicial Magistrate First
Class, Court No.8, Pune on 12th December
2002 by which the Applicant was convicted
for offence under Section 454 read with
Section 34 of the I.P.C. and was sentenced
to suffer rigorous imprisonment for two
years. By the same Judgment and order, the
Applicant was convicted for offences
punishable under Sections 457 and 380 of the
I.P.C. and was sentenced to suffer rigorous
imprisonment for three years each under both
the sections. By the said Judgment all the
three sentences were directed to run
concurrently.
- 4 -
v) Regular Criminal case No.11/2003 decided by
the learned Chief Judicial Magistrate, Pune
on 25th June 2003 by which the Applicant was
convicted for offences under Sections 454,
457, 380 read with Sections 34 and 75 of
I.P.C. and was sentenced to suffer rigorous
imprisonment for three years on each count
the sentences were ordered to be run
concurrently.
vi) By common Judgment and Order dated 25th June
2003 in Regular Criminal Case Nos.12,13 and
14 of 2003 the Applicant was convicted in
all three cases for offences under Sections
454, 457, 380 read with Sections 34 and 75
of I.P.C. and was sentenced to suffer
rigorous imprisonment for three years on
each count in each case. Substantive
sentences in all the three cases were
ordered to be run concurrently.
3. The prayer in the application seems to be that the
sentences in aforesaid cases should be directed to run
concurrently.
- 5 -
4. The relevant provision of the Code of Criminal Procedure,
1973 is Section 427 which reads thus :
"427.Sentence on offender already sentenced for
another offences - (1) 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:
. Provided that where a person who has been
sentenced to imprisonment by an order under
section 122 in default of furnishing
security is, whilst undergoing such
sentence, sentenced to imprisonment for an
offence committed prior to the making of
such order, the latter sentence shall
commence immediately.
(2) When a person already undergoing a sentence
- 6 -
of imprisonment for life is sentenced on a
subsequent conviction to imprisonment for a
term or imprisonment for life, the
subsequent sentence shall run concurrently
with such previous sentence.
Another provision which is relevant is Section 428 which reads
thus :
"428.Period of detention undergone by the accused
to be set off against the sentence of
imprisonment - Where an accused person has,
on conviction, been sentenced to
imprisonment for a term [ not being
imprisonment in default of payment of fine]
the period of detention, if any, undergone
by him during the investigation, inquiry 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."
5. The learned Advocate for the Applicant has submitted a
- 7 -
chart giving details of the sentences awarded in different
cases, period from which the Applicant was undertrial
prisoner, the total period from investigation to trial and the
set off to which the Applicant is entitled to Section 427 and
428 of the Code of Criminal Procedure, 1973. The learned
A.P.P. was granted time to verify the correctness of the
chart. The learned A.P.P. on instructions stated that the
said chart except column No.6 thereof is factually correct.
Accordingly, I have taken the said chart on record and marked
‘X’ for identification. The learned Advocate for the
Applicant submitted that the if the details of the chart are
correct and full benefit is granted to the Applicant, he will
have to be released forthwith. The learned A.P.P. opposed
the application by submitting that power under section 427
cannot be invoked as the conviction of the Applicant is under
different trials in connection with the different offences.
The learned A.P.P. submitted that even under Section 428 of
the said Code, benefit cannot be granted to the Applicant of
the period spent in jail as an undertrial prisoner in one
particular case against sentence in another case. The learned
A.P.P. therefore submitted that there is no merit in the
Application and the same deserves to be rejected.
6. I have considered the submissions. The learned Advocate
for the Applicant tried to draw support from the decision of
the Apex Court in 2000 Cr.L.J. page 4662 (S.C.) (Ammavasai
- 8 -
Vs. Inspector of Police). By the said decision, the Apex
Court directed that all sentences shall run concurrently in
peculiar facts of the case where the Appellant was sentenced
to undergo imprisonment in different offences for a total
period of 35 years. This Judgment does not lay down as a
proposition of law that in case of conviction of accused in
different trials for different offences, the High Court has a
power to direct that sentences to run concurrently. As is
clear from the details given earlier, conviction of the
Applicant is in different cases. Wherever separate
punishments are imposed against the Applicant for different
offences in the same case, benefit is already granted for
running the sentences concurrently. In my view, no case is
made out for granting benefit under Section 427 of the said
Code to the Applicant.
7. In so far as relief under Section 428 of the said Code is
concerned, reference will have to be made to the decision of
the Apex Court reported in A.I.R. 2001 SC. page 2255 (State
of Maharashtra and another vs. Najakat @ Mubarak Ali). The
Apex Court in paragraph Nos.15 and 16 of the said decision
held thus :
"15. The purpose is therefore clear that the
convicted person is given the right to
reckon the period of his sentence of
- 9 -
imprisonment from the date he was in jail as
an under-trial prisoner. In other words,
the period of his being in jail as an
under-trial prisoner would be added as a
part of the period of imprisonment to which
he is sentenced. We may now decipher the
two requisites postulated in Section 428 of
the Code.
. (1) During the stage of investigation,
inquiry or trial of a particular case the
prisoner should have been in jail at least
for a certain period.
. (2) He should have been sentenced to a term
of imprisonment in that case.
16. If the above two conditions are satisfied
then the operative part of the provision
comes into play i.e. if the sentence of
imprisonment awarded is longer than the
period of detention undergone by him during
the stages of investigation, inquiry or
trial, the convicted person need undergo
only the balance period of imprisonment
after deducting the earlier period from the
- 10 -
total period of imprisonmement awarded. The
word "if any" in the section amplifies that
if there is no balance period left after
such deduction the convict will be entitled
to be set free from jail, unless he is
required in any other case. In other words,
if the convict was in prison, for whatever
reason, during the stages of investigation,
inquiry or trial of a particular case and
was later convicted and sentenced to any
term of imprisonment in that case the
earlier period of detention undergone by him
should be counted as part of the sentence
imposed on him."
Therefore, the Applicant is entitled to benefit of Section 428
in the light of the law laid down by the Apex Court in the
said case of State of Maharashtra (supra). In all cases
except in R.C.C.No.11 of 2003 benefit under Section 428 has
been given to the Applicant.
8. Hence, this application is disposed of by directing that
benefit available under Section 428 of the said Code shall be
made available by the State to the Applicant in case of his
sentence in R.C.C.No.11 of 2003 decided on 25th June 2003 by
the Chief Judicial Magistrate by reckoning the period of his
- 11 -
sentence of imprisonment in the case from the date on which he
was in jail in the said case as an undertrial prisoner. The
prayer for directing that sentences awarded in all the
offences shall run concurrently is rejected.
( ABHAY S.OKA,J. )
Shonee Kapoor (Expert) 29 May 2012
Nothing more to say.

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com
DEFENSE ADVOCATE.-firmaction@g (Expert) 01 June 2012
From above citation you can try to take benefit of -2000 Cr.L.J. page 4662 (S.C.) and go the Higher court for concurrent sentence.

The lower court must have given sett off in one conviction if not you will get it as a right.




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