Case Note & Summary
The petitioner, Clint Fernandez, was convicted in Sessions Case No. 112 of 2004 and sentenced to death by the trial court. He appealed to the Supreme Court in Criminal Appeal No. 1092 of 2006, which partly allowed the appeal on 3rd August 2010, maintaining the conviction but commuting the death sentence to life imprisonment. Since the death sentence was imposed, neither the trial court nor the High Court had mentioned the entitlement to set-off under Section 428 of the Code of Criminal Procedure, 1973 (CrPC). The petitioner feared that the prison authorities might not deduct the period he had spent as an undertrial prisoner (from 20/11/2003 to 25/11/2005, a period of more than two years) while calculating the sentence undergone. He filed a writ petition under Articles 226 and 227 of the Constitution seeking a direction to the respondents (State of Maharashtra, Deputy Inspector General of Police (Prison), and Superintendent of Open Prison Visapur) to grant set-off of that period. The High Court examined Sections 428, 433, and 433A CrPC. It noted that Section 428 mandates that the period of detention as an undertrial prisoner shall be set off against the sentence of imprisonment. The court observed that the provision applies to life imprisonment as well, and the fact that the petitioner was initially sentenced to death does not disentitle him to set-off after commutation. The court held that the prison authorities are bound to compute the period of detention as undertrial and deduct it from the life sentence. The petition was allowed, and the respondents were directed to give the benefit of set-off for the period from 20/11/2003 to 25/11/2005.
Headnote
A) Criminal Procedure - Set-off of Undertrial Detention - Section 428 CrPC - Entitlement of life convict after commutation of death sentence - The petitioner, convicted and sentenced to death, had his sentence commuted to life imprisonment by the Supreme Court. The trial court and High Court had not mentioned set-off under Section 428 CrPC. The petitioner sought direction to prison authorities to deduct the period of more than two years spent as undertrial. The High Court held that Section 428 CrPC applies to life imprisonment and the period of detention as undertrial must be set off against the sentence of life imprisonment. The court directed the prison authorities to compute the period from 20/11/2003 to 25/11/2005 and give set-off accordingly. (Paras 2-6)
Issue of Consideration
Whether a convict sentenced to death, later commuted to life imprisonment, is entitled to set-off of the period spent as an undertrial prisoner under Section 428 of the Code of Criminal Procedure, 1973
Final Decision
The petition is allowed. The respondents are directed to give the benefit of set-off period from 20/11/2003 to 25/11/2005 as per Section 428 of the Code of Criminal Procedure. Rule made absolute accordingly.
Law Points
- Section 428 CrPC applies to life imprisonment after commutation from death sentence
- set-off of undertrial detention period is mandatory
- prison authorities must compute and deduct the period spent in detention as undertrial
