Case Note & Summary
The petitioner, Sanjay Shriram Gondchar, a convict lodged in Central Prison, Amravati, filed a letter-petition seeking earlier release by claiming set-off of the period he had spent as an undertrial prisoner in a case in which he was ultimately acquitted, against the sentence imposed in a different case in which he was convicted. He relied on the Supreme Court judgment in State of Maharashtra & another v. Najakat Ali Mubarak Ali (2001) 6 SCC 311. The admitted facts were that the petitioner was an undertrial in a case where he was acquitted, and he was not arrested or detained as an undertrial in the case that led to his conviction. The Court heard the learned APP Mr. T.A. Mirza and perused the petition and the cited judgment. The Court examined Section 428 of the Code of Criminal Procedure, 1973, which provides that the period of detention undergone by an accused during investigation, inquiry or trial of the same case shall be set off against the sentence of imprisonment. The Court distinguished the cited Supreme Court case, noting that it dealt with a situation where the accused was in detention in the same case. Here, the petitioner's detention was in a different case where he was acquitted, and he was never in custody in the case for which he was convicted. Therefore, the condition of Section 428 was not satisfied. The Court dismissed the petition, holding that the period of detention in an unrelated case cannot be set off against the sentence in another case.
Headnote
A) Criminal Procedure - Set-off under Section 428 CrPC - Detention in Unrelated Case - The petitioner, a convict, sought set-off of the period he spent as an undertrial in a case where he was acquitted, against the sentence imposed in a separate case where he was convicted. The Court held that Section 428 CrPC allows set-off only for detention during the investigation, inquiry or trial of the same case in which the sentence is imposed. Since the petitioner was not arrested or detained as an undertrial in the case leading to his conviction, the period of detention in the acquitted case cannot be set off. The petition was dismissed. (Paras 1-6)
Issue of Consideration
Whether the period of detention undergone by a convict as an undertrial in a case in which he was acquitted can be set off under Section 428 of the Code of Criminal Procedure, 1973 against the sentence imposed in a different case in which he was convicted.
Final Decision
The petition is dismissed. Rule is discharged.
Law Points
- Section 428 CrPC set-off requires detention during investigation
- inquiry or trial of the same case
- detention in an unrelated case where accused was acquitted cannot be set off against sentence in a different case
