Case Note & Summary
The petitioner, Tenzin @ Elin Dorje, was convicted by the Additional Sessions Judge, Panaji, in Sessions Case No. 23/2016 for offences under Sections 376, 323, 324, and 506(ii) of the Indian Penal Code, 1860. He was sentenced to rigorous imprisonment for ten years for rape, with lesser concurrent sentences for other offences. The judgment and order dated 26.10.2020 did not mention any set-off under Section 428 of the Code of Criminal Procedure, 1973 (Cr.P.C.). The petitioner filed a criminal writ petition before the Bombay High Court at Goa, challenging the judgment only to the extent of the omission to grant set-off. He sought directions to the jail authorities to recalculate his sentence by setting off the period he had already spent in custody prior to his conviction. The petitioner's counsel argued that Section 428 Cr.P.C. mandates such set-off and that the trial court's silence was an error. The State opposed the petition, contending that the petitioner had not challenged the conviction on merits and that the writ petition was not maintainable. The High Court examined Section 428 Cr.P.C., which provides that the period of detention undergone by an accused during investigation, inquiry, or trial before conviction shall be set off against the sentence of imprisonment imposed upon him. The court noted that the provision is mandatory and not discretionary. It held that the trial court's failure to mention set-off does not deprive the petitioner of his statutory right. The court directed the Superintendent of Central Jail, Colvale, to recalculate the petitioner's sentence by granting set-off from the date of his initial arrest until the date of conviction, and to communicate the revised release date to the petitioner. The petition was disposed of accordingly.
Headnote
A) Criminal Procedure - Set-off of Pre-conviction Detention - Section 428 Cr.P.C., 1973 - Statutory Right - The petitioner was convicted for offences under Sections 376, 323, 324, 506(ii) IPC and sentenced to imprisonment. The trial court's judgment was silent on granting set-off under Section 428 Cr.P.C. The High Court held that Section 428 Cr.P.C. mandates that the period of detention undergone by an accused during investigation, inquiry or trial before conviction shall be set off against the sentence of imprisonment imposed upon him. The court directed the jail authorities to recalculate the sentence after granting set-off from the date of initial arrest. (Paras 1-10) B) Criminal Procedure - Correction of Omission in Judgment - Section 428 Cr.P.C., 1973 - Writ Jurisdiction - The trial court's failure to mention set-off in the judgment does not extinguish the petitioner's right. The High Court, in exercise of its writ jurisdiction, can direct the jail authorities to give effect to Section 428 Cr.P.C. by recalculating the sentence. (Paras 8-10)
Issue of Consideration
Whether the petitioner is entitled to set-off of the period of detention undergone by him prior to his conviction against the substantive sentence of imprisonment imposed upon him, in accordance with Section 428 of the Code of Criminal Procedure, 1973.
Final Decision
The High Court allowed the petition and directed the Superintendent of Central Jail, Colvale, to recalculate the petitioner's sentence by granting set-off under Section 428 Cr.P.C. from the date of his initial arrest until the date of conviction, and to communicate the revised release date to the petitioner.
Law Points
- Section 428 Cr.P.C. mandates set-off of pre-conviction detention period against substantive sentence of imprisonment
- period of detention prior to conviction must be set off against sentence of imprisonment imposed upon conviction
- set-off is a statutory right and not dependent on court's discretion
- omission to grant set-off in judgment can be corrected by filing a criminal writ petition
