Case Note & Summary
The petitioners, Saheb s/o Haribhau Aglawe and Waman s/o Shankar Chaukale, were convicted by the trial court for offences under Sections 147, 148, 149, and 323 of the Indian Penal Code (IPC) and sentenced to imprisonment. They filed a criminal writ petition before the Bombay High Court, Aurangabad Bench, seeking a direction to the jail authorities to set off the period of detention undergone by them as undertrial prisoners prior to their conviction against the sentence imposed, under Section 428 of the Code of Criminal Procedure, 1973 (CrPC). The petitioners contended that they had already undergone the entire sentence, but the jail authorities had not granted the benefit of set-off, resulting in their continued incarceration. The State of Maharashtra and the Superintendent of Parbhani District Jail were the respondents. The court, after hearing the parties, allowed the petition and directed the respondents to compute the set-off period and release the petitioners forthwith if the sentence was already completed. The judgment was delivered by a division bench comprising Justice A.H. Joshi and Justice A.V. Nirgude on 26 July 2012.
Headnote
A) Criminal Procedure Code - Set-off of Remand Period - Section 428 CrPC - Pre-conviction detention - The petitioners, convicted for offences under IPC, sought set-off of the period they had spent in custody during investigation and trial against their sentence. The court held that Section 428 CrPC mandates that the period of detention undergone by an accused before conviction shall be set off against the term of imprisonment imposed, irrespective of whether the sentence has already been served. The jail authorities are bound to compute the set-off and release the prisoner if the sentence is already completed. (Paras 1-6) B) Criminal Procedure Code - Writ Petition - Maintainability - Section 482 CrPC - Alternative remedy - The court held that a writ petition under Article 226 of the Constitution is maintainable for enforcement of the right to set-off under Section 428 CrPC, even if an alternative remedy under Section 482 CrPC exists, as the issue involves a fundamental right to liberty. (Paras 1-6)
Issue of Consideration
Whether the period of detention undergone by the petitioners as undertrial prisoners prior to their conviction can be set off against the sentence of imprisonment imposed on them, even though the sentence has already been fully undergone.
Final Decision
The court allowed the writ petition and directed the respondents to compute the period of detention undergone by the petitioners prior to conviction and set it off against the sentence imposed. If the sentence was already completed, the petitioners were to be released forthwith.
Law Points
- Section 428 CrPC
- set-off of remand period
- pre-conviction detention
- sentence already undergone
- writ petition maintainability
