Case Note & Summary
The case arose from a criminal application filed by Santosh Bhau Homane, a convict undergoing life imprisonment, seeking the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973. The applicant had been convicted and sentenced to life imprisonment in Sessions Case No. 252 of 1997 by the Sessions Court, Thane. After his conviction, he requested the Sessions Court to adjust the period of pre-trial detention already undergone by him against his sentence, as contemplated under Section 428 Cr.P.C. The Sessions Court, however, rejected this request by its order dated 22 April 2002, on the reasoning that set-off cannot be provided in cases where the accused is awarded life imprisonment. Aggrieved by this denial, the applicant filed the present application before the Bombay High Court through jail, seeking to enforce his right to set-off. The central legal issue before the High Court was whether an accused sentenced to life imprisonment is entitled to the benefit of set-off under Section 428 Cr.P.C. The applicant's counsel, appearing as amicus curiae appointed by the court, relied upon the Constitution Bench decision of the Supreme Court in Bhagirath Vs. Delhi Administration, (1985) 2 SCC 580, which had categorically held that the provisions of Section 428 Cr.P.C. apply even to cases where the accused has been ordered to undergo life imprisonment. On the other hand, the learned Additional Public Prosecutor representing the State placed reliance on a recent decision of a two-Judge Bench of the Supreme Court in Mohd. Munna Vs. Union of India, reported in 2005 AIR SCW 4524, which had made general observations to the effect that imprisonment for life means rigorous imprisonment for life and therefore, the question of providing set-off under Section 428 Cr.P.C. does not arise. The High Court, after considering the rival submissions, found no difficulty in allowing the application. It observed that the Constitution Bench decision in Bhagirath's case was a direct authority on the very point in issue and was binding. The decision in Mohd. Munna's case, while containing general observations about the nature of life imprisonment, did not specifically decide the question of applicability of Section 428 Cr.P.C. to life sentences. The court noted that such general observations could not be the basis to hold that Section 428 is unavailable to a convict undergoing life imprisonment. Therefore, following the binding precedent, the court held that the applicant was entitled to be given set-off under Section 428 Cr.P.C. for the period of detention already undergone, the sentence of life imprisonment notwithstanding. Accordingly, the High Court allowed the application and directed that the applicant shall be provided set-off in terms of Section 428 Cr.P.C. The judgment reinforces the principle that pre-trial detention periods must be set off against the sentence, irrespective of whether the sentence is for a fixed term or for life, as long as the statutory requirements are met.
Headnote
A) Criminal Procedure - Set-off of Pre-trial Detention - Section 428, Code of Criminal Procedure, 1973 - Entitlement to set-off even for life imprisonment - The applicant, sentenced to life imprisonment, claimed set-off for the period already undergone during trial, which was rejected by the Sessions Court on the ground that set-off is not available for life sentences. The High Court, relying on the Constitution Bench decision in Bhagirath Vs. Delhi Administration (1985) 2 SCC 580, held that Section 428 Cr.P.C. applies to cases of life imprisonment, and the contrary observations in Mohd. Munna Vs. Union of India (2005 AIR SCW 4524) were not on the point. Held, the applicant is entitled to set-off under Section 428 Cr.P.C., the life imprisonment sentence notwithstanding. (Paras 3-5)
Issue of Consideration
Whether an accused sentenced to life imprisonment is entitled to the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973
Final Decision
Application allowed. The applicant is entitled to set-off under Section 428 Cr.P.C., the order of life imprisonment notwithstanding.
Law Points
- Section 428 of the Code of Criminal Procedure
- 1973 applies to cases of life imprisonment
- the Constitution Bench decision in Bhagirath Vs. Delhi Administration is binding
- general observations in Mohd. Munna Vs. Union of India do not disturb that principle
