Full Judgment Text
NON-REPORTABLE
2025 INSC 541
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1371 OF 2025
THE SUPERINTENDENT OF PRISON & ANR. … APPELLANTS
VS.
VENKATESAN @ SENU @ SRINIVASAN @
BASKARAN @ RADIO @ PRAKASAM … RESPONDENT
WITH
CRIMINAL APPEAL NO. 1372 OF 2025
THE SUPERINTENDENT OF PRISON & ANR. … APPELLANTS
VS.
RAVICHANDRAN @ KALAI @ RAVI … RESPONDENT
J U D G M E N T
CRIMINAL APPEAL NO. 1371 OF 2025
1. The Superintendent of Prison, Central Prison – 1, Puzhal, Chennai,
Tamil Nadu and the Inspector of Police, Q Branch, CID Police Station,
1
Perambalur District, Tamil Nadu are in appeal against the judgment
and order dated 11.09.2020 of a learned Judge of the High Court of
Judicature at Madras. By reason of the impugned order, a petition of
Signature Not Verified
2
the respondent under Section 482 of the Code of Criminal Procedure,
Digitally signed by
JATINDER KAUR
Date: 2025.04.22
18:13:15 IST
Reason:
1
appellants
2
Venkatesan
1
3
1973 succeeded. In such petition, Venkatesan had sought that the
remand period from (i) 24.03.2005 to 28.02.2006; (ii) 22.04.2008 to
22.04.2009 and (iii) 21.04.2014 to 23.12.2014 as undertrial prisoner
produced under P.T. (Prisoner Transit) warrant in S.C. No.2 of 2002,
under Section 428 of the Cr. PC., be set-off.
2. Venkatesan belongs to Tamil Nadu Liberation Army, an organisation
banned by the Government of Tamil Nadu. With the objective of
liberating Tamil Nadu from the Union of India, Venkatesan resorted
to violent activities and through armed struggle has been involved in
several incidents of crime. Upon full-fledged trial, Venkatesan has
been found guilty in Crime No.346 of 1993, S.C. No.12 of 2001 and
DS.C. No.2 of 2002.
3. The question of law that we are tasked to decide is, whether on facts
and in the circumstances, Venkatesan was entitled to the set-off for
the three periods granted by the High Court in terms of Section 428,
Cr. PC.
4. Both Section 427 and Section 428, Cr. PC, appear under Chapter
XXXII of the Cr. PC titled “E XECUTION , S USPENSION , R EMISSION AND
C OMMUTATION OF S ENTENCES ”. Section 428 envisages, upon a conviction
being recorded in a particular case followed by a sentence to
imprisonment for a term, set-off of pre-sentence detention period
during the investigation, enquiry or trial of the same case. However,
Section 427(1), Cr. PC, ordains that when a person already
3
Cr. PC
2
undergoing a sentence of imprisonment is sentenced on a subsequent
conviction to imprisonment or imprisonment for life, such
imprisonment or imprisonment for life shall commence at the
expiration of the imprisonment to which he has been previously
sentenced, unless the Court directs that the subsequent sentence
shall run concurrently with such previous sentence.
5. Venkatesan was arrested and remanded to judicial custody on
08.03.1998 in Crime No.234 of 1997 registered at Andimadam Police
Station. After completion of investigation, police report under Section
173(2), Cr. PC was filed. Besides Crime No.234 of 1997, Venkatesan
was arraigned as A-2 in S.C. No.2 of 2002. Cognizance was taken in
S.C. No.2 of 2002 on the file of the Sessions Court for Exclusive Trial
of Bomb Blast Cases, Poonamallee, Chennai. Venkatesan was
released on bail in S.C. No.2 of 2002 on 24.3.2005. Though released
on bail, Venkatesan was not released from custody since he was
involved in other crime cases. Therefore, Venkatesan was again
produced on PT warrant before the trial court and his remand
extended till 28.02.2006. Venkatesan was convicted on 22.04.2008
in Crime No.346 of 1993 registered at Kullanchavadi Police Station;
as such, he was produced under PT warrant in S.C. No.2 of 2002 and
remanded in custody till 22.04.2009. On 24.03.2014, Venkatesan
was convicted in S.C. No.12 of 2001, and during his detention period,
he was produced under PT warrant from 21.04.2014 to 23.12.2014
in S.C.No.2 of 2002. Thereafter, he was convicted on 29.11.2019 in
3
S.C. No.2 of 2002 for the offences punishable under Sections 120-B,
148, 450, 395 r/w 397, 307 and 332 of IPC and sentenced to rigorous
imprisonment varying from 3 years to 10 years and fined. The trial
court rejected Venkatesan’s plea for setting off his remand period
produced under PT warrant under Section 428, Cr. P.C reasoning that
according to Section 428, Cr. PC, there is no mention of inclusion of
the period during which the accused is produced on the strength of
P.T. warrant while undergoing imprisonment in a different case.
6. The judgment of conviction and order on sentence passed by the
sessions court in S.C. No.2 of 2002 were not challenged by
Venkatesan. Hence, refusal of the sessions court to grant Venkatesan
set-off under Section 428, Cr. PC went unchallenged. The decision of
the sessions court in S.C. No.2 of 2002, thus, attained finality.
7. Before the High Court, the learned Additional Public Prosecutor raised
an objection to the maintainability of the petition under Section 482,
Cr. PC filed by Venkatesan on the ground that the remedy lies in an
appeal under Section 374(2), Cr. PC; and since a remedy was
available in law, the petition under Section 482, Cr. PC was not
maintainable. Any prayer for set-off could be and had to be made
before the High Court in appeal and not otherwise.
8. We have noticed with a sense of surprise that the learned Judge of
the High Court after recording the aforesaid objection proceeded to
decide the question of set-off claimed by Venkatesan, while relying
4
on the decision of this Court in State of Maharashtra v. Najakat
4
Alia Mubarak Ali , by a short order.
9. A remedy of appeal having been provided by the Cr. PC, we are of
the firm view that the High Court erred in law in entertaining the
petition under Section 482, Cr. PC filed by Venkatesan. We accept the
submission of Mr. V. Krishnamurthy, learned Senior Additional
Advocate General for the appellants that on this short ground this
appeal deserves to be allowed.
10. However, we do not wish to allow the appeal only on the above
ground. This appeal involves a serious question as to proper
interpretation of Section 428, Cr. PC, notwithstanding that there are
at least half a dozen decisions on such provision. As the narrative
hereafter would unfold, interpretation of Section 428, Cr. PC is not
found to be consistent and an authoritative decision seems to be the
need of the hour.
11. Section 428 of the Cr. PC reads as under:
“428. Period of detention undergone by the accused to be set off
against the sentence of imprisonment .—Where an accused person
has, on conviction, been sentenced to imprisonment for a term, not
being imprisonment in default of payment of fine, the period of
detention, if any, undergone by him during the investigation,
enquiry or trial of the same case and before the date of such
conviction, shall be set off against the term of imprisonment
imposed on him on such conviction, and the liability of such person
to undergo imprisonment on such conviction shall be restricted to
the remainder, if any, of the term of imprisonment imposed on
him.”
4
(2001) 6 SCC 311
5
12. A coordinate Bench of this Court while disposing of a special leave
5
petition in Maliyakkal Abdul Azeez v. Collector was called upon
to consider a plea to set-off a period of detention from the term
imprisonment of three years imposed for an offence under the
Customs Act, 1962 not in course of an investigation or inquiry or trial
of that particular case but in terms of an order for preventive
detention passed under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974. This Court noticed the
two requisites postulated in Section 428 as follows:
“ 8. …
( 1 ) During the stage of investigation, enquiry or trial of a particular
case the prisoner should have been in jail at least for a certain
period.
( 2 ) He should have been sentenced to a term of imprisonment in
that case.
If the above two conditions are satisfied then the operative part of
the provision comes into play i.e. if the sentence of imprisonment
awarded is longer than the period of detention undergone by him
during the stages of investigation, enquiry or trial, the convicted
person need undergo only the balance period of imprisonment after
deducting the earlier period from the total period of imprisonment
awarded.”
13. The aforesaid extract neatly sums up the legal position on the object,
intent and import of Section 428, Cr. PC.
14. However, Najakat Alia Mubarak Ali (supra) is a decision of a three-
Judge Bench of this Court. This decision the High Court relied on, to
grant set-off to Venkatesan not confined to the period of custody in
S.C. No.2 of 2002. It is interesting to read and understand what each
5
(2003) 2 SCC 439
6
of the member Judges on the Bench had said with regard to the object
and scope of Section 428, Cr. PC.
15. Hon’ble K.T. Thomas, J., presiding over the Bench, observed:
“ 18. Reading Section 428 of the Code in the above perspective, the
words ‘of the same case’ are not to be understood as suggesting
that the set-off is allowable only if the earlier jail life was undergone
by him exclusively for the case in which the sentence is imposed.
The period during which the accused was in prison
subsequent to the inception of a particular case, should be
credited towards the period of imprisonment awarded as
sentence in that particular case. It is immaterial that the
prisoner was undergoing sentence of imprisonment in another case
also during the said period. The words ‘of the same case’ were used
to refer to the pre-sentence period of detention undergone by him.
Nothing more can be made out of the collocation of those words.”
16. Dissenting with the aforesaid view, Hon’ble R.P. Sethi, J. expressed:
“ 29. A perusal of the section unambiguously indicates that only
such accused is entitled to the benefit of that period of detention
which he has undergone during the investigation, enquiry or trial
of the same case. It does not contemplate the benefit of set-
off of the period of detention during investigation, enquiry
or trial in any other case. The purpose and object of the section,
as pointed out by brother Thomas, J., is aimed at providing
amelioration to a prisoner in a case where he has been in detention
for no fault of his. The section, however, does not intend to give
any benefit or bonus to an accused guilty of commission of more
than one crime by treating the period of detention during
investigation, enquiry and trial in one case as that period in the
other cases also for the purposes of set-off in the sentence. Such
an entitlement requires judicial determination which can be
adjudicated by a court awarding the sentence in exercise of its
powers under Section 427 of the Code. The words ‘period of
detention, if any, undergone by him during the
investigation, enquiry or trial of the same case ’ are
important to indicate the paramount concern and intention
of the legislature to protect the interests of undertrial
prisoners by giving them the set-off of that period in ‘that
case’, at the conclusion of the trial. The section makes it
clear that the period of detention which it allows to be set
off against the term of imprisonment imposed on the
accused, on conviction, must be during the investigation,
7
enquiry or trial in connection with the same case in which
he has been convicted.”
17. Faced with such conflicting opinions of the two senior members of the
Bench, the third Judge, Hon’ble S.N. Phukan, J., penned a short
opinion. The same is quoted hereunder:
“ 43. I had the advantage of going through the reasoned judgments
of both my learned Brother Judges but with respect I am unable to
accept the views expressed by my learned Brother Mr Justice R.P.
Sethi. In addition to the views expressed by my learned Brother Mr
Thomas, I would like to add a para on the language of Section 428
of the Code of Criminal Procedure:
44. The only question which according to me needs consideration
is the true effect of the expression ‘same case’ as appearing in
Section 428 of the Code of Criminal Procedure. The provision is
couched in clear and unambiguous language and states that
the period of detention which it allows to be set off against
the term of imprisonment imposed on the accused on
conviction must be one undergone by him during
investigation, enquiry or trial in connection with the ‘same
case’ in which he has been convicted. Any other period
which is not connected with the said case cannot be said to
be reckonable for set-off. The view of learned Brother Mr Justice
Thomas according to me accords the legislative intent. Acceptance
of any other view would mean necessary ( sic necessarily) either
adding or subtracting words to the existing provision, which would
not be a proper procedure to be adopted while interpreting the
provision in question.
45. I am, therefore, in respectful agreement with the views
expressed by my learned Brother Mr Justice Thomas.”
(emphasis supplied)
18. Although in paragraph 45 (supra) the view of Hon’ble K.T. Thomas, J.
did have the concurrence of Hon’ble S.N. Phukan, J., bare reading of
the view expressed by His Lordship in paragraph 44 (supra) as
highlighted by us, to our mind, accords with the dissenting view of
Hon’ble R.P. Sethi, J.
8
19. Faced with such a conundrum where the Hon’ble Judges have spoken
in different voices, we attempted a reconciliation of the conflicting
views. However, we are afraid, it has proved abortive. How far and to
what extent the efficacy of the decision in Najakat Alia Mubarak
Ali (supra) as a precedent would bind subsequent Benches of this
Court remains debatable in view of the aforesaid apparent
irreconcilable conflict.
20. Najakat Alia Mubarak Ali (supra), with all its shortcomings, is still
a decision of a three-Judge Bench and, therefore, would obviously
bind us as a precedent.
21. We, however, find that such decision fell for consideration in Atul
6
Manubhai Parekh v. CBI . The latter decision considered the earlier
decisions on the point, viz. State of Andhra Pradesh v. Anne
7
Venkatesware , Champalal Punaji Shah v. State of
8 9
Maharashtra , Raghbir Singh v. State of Haryana and
10
Maliyakkal Abdul Azeez v. Collector . True it is, Raghbir Singh
(supra) stands overruled in view of Najakat Alia Mubarak Ali
(supra); but the first reported decision on Section 428, which was
inserted in the Cr. PC in 1973, does have a material bearing and
makes interesting reading.
6
(2010) 1 SCC 603
7
(1977) 3 SCC 298
8
(1982) 1 SCC 507
9
(1984) 4 SCC 348
10
(2003) 2 SCC 439
9
22. Upon considering Section 428, Cr. PC, this is what the coordinate
Bench speaking through Hon’ble A.C. Gupta, J. laid down in Anne
Venkatesware (supra):
“ 7. … The claim in both these appeals is that the period of detention
undergone by each appellant under the preventive detention law
should be set off under Section 428 of the Code of Criminal
Procedure against the term of imprisonment imposed on them on
their conviction in the aforesaid sessions cases. The argument is
that the expression ‘period of detention’ in Section 428 includes
detention under the Preventive Detention Act or the Maintenance
of Internal Security Act. It is true that the section speaks of the
‘period of detention’ undergone by an accused person, but it
expressly says that the detention mentioned refers to the detention
during the investigation, enquiry or trial of the case in which the
accused person has been convicted. The section makes it clear that
the period of detention which it allows to be set off against the term
of imprisonment imposed on the accused on conviction must be
during the investigation, enquiry or trial in connection with the
‘same case’ in which he has been convicted. We therefore agree
with the High Court that the period during which the writ petitioners
were in preventive detention cannot be set off under Section 428
against the term of imprisonment imposed on them.”
23. We have noted that a three-Judge Bench in Champalal Punaji Shah
(supra) had the occasion to consider Anne Venkatesware (supra),
which was cited in support of relief claimed by the review petitioner;
the Bench, however, appears to have distinguished the decision on
facts and disallowed the prayer finding the aforesaid reasoning to
stand in the way of grant of relief.
24. Turning to Atul Manubhai Parekh (supra), we find the question
arising for decision in paragraph 3 and the answer thereto of the
coordinate Bench, speaking through Hon’ble Altamas Kabir, J., in
paragraphs 14 and 15. Relevant paragraphs from such decision read
as follows:
10
“ 3. The short point involved in this application is whether a person,
who has been convicted in several cases and has suffered detention
or imprisonment in connection therewith, would be entitled to the
benefit of set-off in a separate case for the period of detention or
imprisonment undergone by him in the other cases.
*
14. The wording of Section 428 is, in our view, clear and
unambiguous. The heading of the section itself indicates that the
period of detention undergone by the accused is to be set off
against the sentence of imprisonment . The section makes it clear
that the period of sentence on conviction is to be reduced by the
extent of detention already undergone by the convict during
investigation, enquiry or trial of the same case . It is quite clear that
the period to be set off relates only to pre-conviction detention and
not to imprisonment on conviction.
15. Let us test the proposition by a concrete example. A habitual
offender may be convicted and sentenced to imprisonment at
frequent intervals. If the period of pre-trial detention in various
cases is counted for set-off in respect of a subsequent conviction
where the period of detention is greater than the sentence in the
subsequent case, the accused will not have to undergo
imprisonment at all in connection with the latter case, which could
not have been the intention of the legislature while introducing
Section 428 in the Code in 1973.”
(italics in original)
25. Najakat Alia Mubarak Ali (supra) was distinguished in such
decision in the following words:
“ 20. The facts on which the decision was rendered in Najakat Alia
Mubarak Ali case are distinguishable from the facts of this case. In
the said case, the convict was undergoing imprisonment in two
cases in which he had been convicted and he claimed that he was
entitled to a set-off in respect of both the cases. This Court drawing
inspiration from Section 427 on the concurrent running of
sentences, held that the petitioner was entitled to set-off in both
cases in view of the doctrine of merger of sentences when directed
to run concurrently in a particular case where conviction is on many
counts.”
26. As held in paragraph 20 of Atul Manubhai Parekh (supra), Najakat
Alia Mubarak Ali (supra) would have to be read as a decision
confined to the facts before the three-Judge Bench where
interpretation of Section 427, Cr. PC was also involved.
11
27. We respectfully agree with the reasoning in paragraphs 14 and 15 of
the decision in Atul Manubhai Parekh (supra) on how Section 428,
Cr. PC should be read and why Najakat Alia Mubarak Ali (supra) is
distinguishable on facts.
28. It has been urged on behalf of Venkatesan that paragraph 18 of the
opinion penned by Hon’ble K.T. Thomas, J. in Najakat Alia Mubarak
Ali (supra) constitutes its ratio decidendi and that Benches of lesser
strength are bound thereby. Sitting in a combination such as the
present, propriety, discipline and decorum would demand that we
show deference to what has been held therein and not act in
derogation of Article 141 of the Constitution of India, which binds us
too. But we wish to make the position absolutely clear that the
irreconcilability of the views expressed in Najakat Alia Mubarak Ali
(supra) posits that the same be reconsidered for declaring the law
without any room for confusion.
29. Consistency, certainty, predictability and finality of judicial decisions
are the hallmarks of a sound justice delivery system. The relevance
and significance of the principle of stare decisis have to be borne in
mind. In situations such as this, the Court has to satisfy itself that for
the public good or for any other compelling reason an endeavour
needs to be made so that certainty and continuity in interpretation of
law are maintained. Najakat Alia Mubarak Ali (supra) was
considered in Maliyakkal Abdul Azeez (supra) and Atul Manubhai
Parekh (supra). The coordinate Benches have not followed the
12
majority view in Najakat Alia Mubarak Ali (supra). In view of our
inability to reconcile the divergent views expressed in Najakat Alia
Mubarak Ali (supra) itself and though such decision has been held
in Atul Manubhai Parekh (supra) to be confined to its facts, under
compelling circumstances, we feel it prudent to refer the matter to
the Hon’ble the Chief Justice of India to consider the desirability of
constituting a Bench of appropriate strength for proper interpretation
of Section 428, Cr. PC. Ordered accordingly.
30. The direction for set-off in the impugned order shall remain stayed
until further orders; however, if Venkatesan has been released, he
may not be taken back in custody.
CRIMINAL APPEAL NO. 1372 OF 2025
31. This appeal is also directed against a similar order passed by the High
Court granting the benefit of set-off to the respondent, Ravichandran.
32. The same directions as given in the lead appeal shall apply in this
case.
…………………………J.
(DIPANKAR DATTA)
…………………………J.
(MANMOHAN)
NEW DELHI;
APRIL 22, 2025.
13
2025 INSC 541
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1371 OF 2025
THE SUPERINTENDENT OF PRISON & ANR. … APPELLANTS
VS.
VENKATESAN @ SENU @ SRINIVASAN @
BASKARAN @ RADIO @ PRAKASAM … RESPONDENT
WITH
CRIMINAL APPEAL NO. 1372 OF 2025
THE SUPERINTENDENT OF PRISON & ANR. … APPELLANTS
VS.
RAVICHANDRAN @ KALAI @ RAVI … RESPONDENT
J U D G M E N T
CRIMINAL APPEAL NO. 1371 OF 2025
1. The Superintendent of Prison, Central Prison – 1, Puzhal, Chennai,
Tamil Nadu and the Inspector of Police, Q Branch, CID Police Station,
1
Perambalur District, Tamil Nadu are in appeal against the judgment
and order dated 11.09.2020 of a learned Judge of the High Court of
Judicature at Madras. By reason of the impugned order, a petition of
Signature Not Verified
2
the respondent under Section 482 of the Code of Criminal Procedure,
Digitally signed by
JATINDER KAUR
Date: 2025.04.22
18:13:15 IST
Reason:
1
appellants
2
Venkatesan
1
3
1973 succeeded. In such petition, Venkatesan had sought that the
remand period from (i) 24.03.2005 to 28.02.2006; (ii) 22.04.2008 to
22.04.2009 and (iii) 21.04.2014 to 23.12.2014 as undertrial prisoner
produced under P.T. (Prisoner Transit) warrant in S.C. No.2 of 2002,
under Section 428 of the Cr. PC., be set-off.
2. Venkatesan belongs to Tamil Nadu Liberation Army, an organisation
banned by the Government of Tamil Nadu. With the objective of
liberating Tamil Nadu from the Union of India, Venkatesan resorted
to violent activities and through armed struggle has been involved in
several incidents of crime. Upon full-fledged trial, Venkatesan has
been found guilty in Crime No.346 of 1993, S.C. No.12 of 2001 and
DS.C. No.2 of 2002.
3. The question of law that we are tasked to decide is, whether on facts
and in the circumstances, Venkatesan was entitled to the set-off for
the three periods granted by the High Court in terms of Section 428,
Cr. PC.
4. Both Section 427 and Section 428, Cr. PC, appear under Chapter
XXXII of the Cr. PC titled “E XECUTION , S USPENSION , R EMISSION AND
C OMMUTATION OF S ENTENCES ”. Section 428 envisages, upon a conviction
being recorded in a particular case followed by a sentence to
imprisonment for a term, set-off of pre-sentence detention period
during the investigation, enquiry or trial of the same case. However,
Section 427(1), Cr. PC, ordains that when a person already
3
Cr. PC
2
undergoing a sentence of imprisonment is sentenced on a subsequent
conviction to imprisonment or imprisonment for life, such
imprisonment or imprisonment for life shall commence at the
expiration of the imprisonment to which he has been previously
sentenced, unless the Court directs that the subsequent sentence
shall run concurrently with such previous sentence.
5. Venkatesan was arrested and remanded to judicial custody on
08.03.1998 in Crime No.234 of 1997 registered at Andimadam Police
Station. After completion of investigation, police report under Section
173(2), Cr. PC was filed. Besides Crime No.234 of 1997, Venkatesan
was arraigned as A-2 in S.C. No.2 of 2002. Cognizance was taken in
S.C. No.2 of 2002 on the file of the Sessions Court for Exclusive Trial
of Bomb Blast Cases, Poonamallee, Chennai. Venkatesan was
released on bail in S.C. No.2 of 2002 on 24.3.2005. Though released
on bail, Venkatesan was not released from custody since he was
involved in other crime cases. Therefore, Venkatesan was again
produced on PT warrant before the trial court and his remand
extended till 28.02.2006. Venkatesan was convicted on 22.04.2008
in Crime No.346 of 1993 registered at Kullanchavadi Police Station;
as such, he was produced under PT warrant in S.C. No.2 of 2002 and
remanded in custody till 22.04.2009. On 24.03.2014, Venkatesan
was convicted in S.C. No.12 of 2001, and during his detention period,
he was produced under PT warrant from 21.04.2014 to 23.12.2014
in S.C.No.2 of 2002. Thereafter, he was convicted on 29.11.2019 in
3
S.C. No.2 of 2002 for the offences punishable under Sections 120-B,
148, 450, 395 r/w 397, 307 and 332 of IPC and sentenced to rigorous
imprisonment varying from 3 years to 10 years and fined. The trial
court rejected Venkatesan’s plea for setting off his remand period
produced under PT warrant under Section 428, Cr. P.C reasoning that
according to Section 428, Cr. PC, there is no mention of inclusion of
the period during which the accused is produced on the strength of
P.T. warrant while undergoing imprisonment in a different case.
6. The judgment of conviction and order on sentence passed by the
sessions court in S.C. No.2 of 2002 were not challenged by
Venkatesan. Hence, refusal of the sessions court to grant Venkatesan
set-off under Section 428, Cr. PC went unchallenged. The decision of
the sessions court in S.C. No.2 of 2002, thus, attained finality.
7. Before the High Court, the learned Additional Public Prosecutor raised
an objection to the maintainability of the petition under Section 482,
Cr. PC filed by Venkatesan on the ground that the remedy lies in an
appeal under Section 374(2), Cr. PC; and since a remedy was
available in law, the petition under Section 482, Cr. PC was not
maintainable. Any prayer for set-off could be and had to be made
before the High Court in appeal and not otherwise.
8. We have noticed with a sense of surprise that the learned Judge of
the High Court after recording the aforesaid objection proceeded to
decide the question of set-off claimed by Venkatesan, while relying
4
on the decision of this Court in State of Maharashtra v. Najakat
4
Alia Mubarak Ali , by a short order.
9. A remedy of appeal having been provided by the Cr. PC, we are of
the firm view that the High Court erred in law in entertaining the
petition under Section 482, Cr. PC filed by Venkatesan. We accept the
submission of Mr. V. Krishnamurthy, learned Senior Additional
Advocate General for the appellants that on this short ground this
appeal deserves to be allowed.
10. However, we do not wish to allow the appeal only on the above
ground. This appeal involves a serious question as to proper
interpretation of Section 428, Cr. PC, notwithstanding that there are
at least half a dozen decisions on such provision. As the narrative
hereafter would unfold, interpretation of Section 428, Cr. PC is not
found to be consistent and an authoritative decision seems to be the
need of the hour.
11. Section 428 of the Cr. PC reads as under:
“428. Period of detention undergone by the accused to be set off
against the sentence of imprisonment .—Where an accused person
has, on conviction, been sentenced to imprisonment for a term, not
being imprisonment in default of payment of fine, the period of
detention, if any, undergone by him during the investigation,
enquiry or trial of the same case and before the date of such
conviction, shall be set off against the term of imprisonment
imposed on him on such conviction, and the liability of such person
to undergo imprisonment on such conviction shall be restricted to
the remainder, if any, of the term of imprisonment imposed on
him.”
4
(2001) 6 SCC 311
5
12. A coordinate Bench of this Court while disposing of a special leave
5
petition in Maliyakkal Abdul Azeez v. Collector was called upon
to consider a plea to set-off a period of detention from the term
imprisonment of three years imposed for an offence under the
Customs Act, 1962 not in course of an investigation or inquiry or trial
of that particular case but in terms of an order for preventive
detention passed under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974. This Court noticed the
two requisites postulated in Section 428 as follows:
“ 8. …
( 1 ) During the stage of investigation, enquiry or trial of a particular
case the prisoner should have been in jail at least for a certain
period.
( 2 ) He should have been sentenced to a term of imprisonment in
that case.
If the above two conditions are satisfied then the operative part of
the provision comes into play i.e. if the sentence of imprisonment
awarded is longer than the period of detention undergone by him
during the stages of investigation, enquiry or trial, the convicted
person need undergo only the balance period of imprisonment after
deducting the earlier period from the total period of imprisonment
awarded.”
13. The aforesaid extract neatly sums up the legal position on the object,
intent and import of Section 428, Cr. PC.
14. However, Najakat Alia Mubarak Ali (supra) is a decision of a three-
Judge Bench of this Court. This decision the High Court relied on, to
grant set-off to Venkatesan not confined to the period of custody in
S.C. No.2 of 2002. It is interesting to read and understand what each
5
(2003) 2 SCC 439
6
of the member Judges on the Bench had said with regard to the object
and scope of Section 428, Cr. PC.
15. Hon’ble K.T. Thomas, J., presiding over the Bench, observed:
“ 18. Reading Section 428 of the Code in the above perspective, the
words ‘of the same case’ are not to be understood as suggesting
that the set-off is allowable only if the earlier jail life was undergone
by him exclusively for the case in which the sentence is imposed.
The period during which the accused was in prison
subsequent to the inception of a particular case, should be
credited towards the period of imprisonment awarded as
sentence in that particular case. It is immaterial that the
prisoner was undergoing sentence of imprisonment in another case
also during the said period. The words ‘of the same case’ were used
to refer to the pre-sentence period of detention undergone by him.
Nothing more can be made out of the collocation of those words.”
16. Dissenting with the aforesaid view, Hon’ble R.P. Sethi, J. expressed:
“ 29. A perusal of the section unambiguously indicates that only
such accused is entitled to the benefit of that period of detention
which he has undergone during the investigation, enquiry or trial
of the same case. It does not contemplate the benefit of set-
off of the period of detention during investigation, enquiry
or trial in any other case. The purpose and object of the section,
as pointed out by brother Thomas, J., is aimed at providing
amelioration to a prisoner in a case where he has been in detention
for no fault of his. The section, however, does not intend to give
any benefit or bonus to an accused guilty of commission of more
than one crime by treating the period of detention during
investigation, enquiry and trial in one case as that period in the
other cases also for the purposes of set-off in the sentence. Such
an entitlement requires judicial determination which can be
adjudicated by a court awarding the sentence in exercise of its
powers under Section 427 of the Code. The words ‘period of
detention, if any, undergone by him during the
investigation, enquiry or trial of the same case ’ are
important to indicate the paramount concern and intention
of the legislature to protect the interests of undertrial
prisoners by giving them the set-off of that period in ‘that
case’, at the conclusion of the trial. The section makes it
clear that the period of detention which it allows to be set
off against the term of imprisonment imposed on the
accused, on conviction, must be during the investigation,
7
enquiry or trial in connection with the same case in which
he has been convicted.”
17. Faced with such conflicting opinions of the two senior members of the
Bench, the third Judge, Hon’ble S.N. Phukan, J., penned a short
opinion. The same is quoted hereunder:
“ 43. I had the advantage of going through the reasoned judgments
of both my learned Brother Judges but with respect I am unable to
accept the views expressed by my learned Brother Mr Justice R.P.
Sethi. In addition to the views expressed by my learned Brother Mr
Thomas, I would like to add a para on the language of Section 428
of the Code of Criminal Procedure:
44. The only question which according to me needs consideration
is the true effect of the expression ‘same case’ as appearing in
Section 428 of the Code of Criminal Procedure. The provision is
couched in clear and unambiguous language and states that
the period of detention which it allows to be set off against
the term of imprisonment imposed on the accused on
conviction must be one undergone by him during
investigation, enquiry or trial in connection with the ‘same
case’ in which he has been convicted. Any other period
which is not connected with the said case cannot be said to
be reckonable for set-off. The view of learned Brother Mr Justice
Thomas according to me accords the legislative intent. Acceptance
of any other view would mean necessary ( sic necessarily) either
adding or subtracting words to the existing provision, which would
not be a proper procedure to be adopted while interpreting the
provision in question.
45. I am, therefore, in respectful agreement with the views
expressed by my learned Brother Mr Justice Thomas.”
(emphasis supplied)
18. Although in paragraph 45 (supra) the view of Hon’ble K.T. Thomas, J.
did have the concurrence of Hon’ble S.N. Phukan, J., bare reading of
the view expressed by His Lordship in paragraph 44 (supra) as
highlighted by us, to our mind, accords with the dissenting view of
Hon’ble R.P. Sethi, J.
8
19. Faced with such a conundrum where the Hon’ble Judges have spoken
in different voices, we attempted a reconciliation of the conflicting
views. However, we are afraid, it has proved abortive. How far and to
what extent the efficacy of the decision in Najakat Alia Mubarak
Ali (supra) as a precedent would bind subsequent Benches of this
Court remains debatable in view of the aforesaid apparent
irreconcilable conflict.
20. Najakat Alia Mubarak Ali (supra), with all its shortcomings, is still
a decision of a three-Judge Bench and, therefore, would obviously
bind us as a precedent.
21. We, however, find that such decision fell for consideration in Atul
6
Manubhai Parekh v. CBI . The latter decision considered the earlier
decisions on the point, viz. State of Andhra Pradesh v. Anne
7
Venkatesware , Champalal Punaji Shah v. State of
8 9
Maharashtra , Raghbir Singh v. State of Haryana and
10
Maliyakkal Abdul Azeez v. Collector . True it is, Raghbir Singh
(supra) stands overruled in view of Najakat Alia Mubarak Ali
(supra); but the first reported decision on Section 428, which was
inserted in the Cr. PC in 1973, does have a material bearing and
makes interesting reading.
6
(2010) 1 SCC 603
7
(1977) 3 SCC 298
8
(1982) 1 SCC 507
9
(1984) 4 SCC 348
10
(2003) 2 SCC 439
9
22. Upon considering Section 428, Cr. PC, this is what the coordinate
Bench speaking through Hon’ble A.C. Gupta, J. laid down in Anne
Venkatesware (supra):
“ 7. … The claim in both these appeals is that the period of detention
undergone by each appellant under the preventive detention law
should be set off under Section 428 of the Code of Criminal
Procedure against the term of imprisonment imposed on them on
their conviction in the aforesaid sessions cases. The argument is
that the expression ‘period of detention’ in Section 428 includes
detention under the Preventive Detention Act or the Maintenance
of Internal Security Act. It is true that the section speaks of the
‘period of detention’ undergone by an accused person, but it
expressly says that the detention mentioned refers to the detention
during the investigation, enquiry or trial of the case in which the
accused person has been convicted. The section makes it clear that
the period of detention which it allows to be set off against the term
of imprisonment imposed on the accused on conviction must be
during the investigation, enquiry or trial in connection with the
‘same case’ in which he has been convicted. We therefore agree
with the High Court that the period during which the writ petitioners
were in preventive detention cannot be set off under Section 428
against the term of imprisonment imposed on them.”
23. We have noted that a three-Judge Bench in Champalal Punaji Shah
(supra) had the occasion to consider Anne Venkatesware (supra),
which was cited in support of relief claimed by the review petitioner;
the Bench, however, appears to have distinguished the decision on
facts and disallowed the prayer finding the aforesaid reasoning to
stand in the way of grant of relief.
24. Turning to Atul Manubhai Parekh (supra), we find the question
arising for decision in paragraph 3 and the answer thereto of the
coordinate Bench, speaking through Hon’ble Altamas Kabir, J., in
paragraphs 14 and 15. Relevant paragraphs from such decision read
as follows:
10
“ 3. The short point involved in this application is whether a person,
who has been convicted in several cases and has suffered detention
or imprisonment in connection therewith, would be entitled to the
benefit of set-off in a separate case for the period of detention or
imprisonment undergone by him in the other cases.
*
14. The wording of Section 428 is, in our view, clear and
unambiguous. The heading of the section itself indicates that the
period of detention undergone by the accused is to be set off
against the sentence of imprisonment . The section makes it clear
that the period of sentence on conviction is to be reduced by the
extent of detention already undergone by the convict during
investigation, enquiry or trial of the same case . It is quite clear that
the period to be set off relates only to pre-conviction detention and
not to imprisonment on conviction.
15. Let us test the proposition by a concrete example. A habitual
offender may be convicted and sentenced to imprisonment at
frequent intervals. If the period of pre-trial detention in various
cases is counted for set-off in respect of a subsequent conviction
where the period of detention is greater than the sentence in the
subsequent case, the accused will not have to undergo
imprisonment at all in connection with the latter case, which could
not have been the intention of the legislature while introducing
Section 428 in the Code in 1973.”
(italics in original)
25. Najakat Alia Mubarak Ali (supra) was distinguished in such
decision in the following words:
“ 20. The facts on which the decision was rendered in Najakat Alia
Mubarak Ali case are distinguishable from the facts of this case. In
the said case, the convict was undergoing imprisonment in two
cases in which he had been convicted and he claimed that he was
entitled to a set-off in respect of both the cases. This Court drawing
inspiration from Section 427 on the concurrent running of
sentences, held that the petitioner was entitled to set-off in both
cases in view of the doctrine of merger of sentences when directed
to run concurrently in a particular case where conviction is on many
counts.”
26. As held in paragraph 20 of Atul Manubhai Parekh (supra), Najakat
Alia Mubarak Ali (supra) would have to be read as a decision
confined to the facts before the three-Judge Bench where
interpretation of Section 427, Cr. PC was also involved.
11
27. We respectfully agree with the reasoning in paragraphs 14 and 15 of
the decision in Atul Manubhai Parekh (supra) on how Section 428,
Cr. PC should be read and why Najakat Alia Mubarak Ali (supra) is
distinguishable on facts.
28. It has been urged on behalf of Venkatesan that paragraph 18 of the
opinion penned by Hon’ble K.T. Thomas, J. in Najakat Alia Mubarak
Ali (supra) constitutes its ratio decidendi and that Benches of lesser
strength are bound thereby. Sitting in a combination such as the
present, propriety, discipline and decorum would demand that we
show deference to what has been held therein and not act in
derogation of Article 141 of the Constitution of India, which binds us
too. But we wish to make the position absolutely clear that the
irreconcilability of the views expressed in Najakat Alia Mubarak Ali
(supra) posits that the same be reconsidered for declaring the law
without any room for confusion.
29. Consistency, certainty, predictability and finality of judicial decisions
are the hallmarks of a sound justice delivery system. The relevance
and significance of the principle of stare decisis have to be borne in
mind. In situations such as this, the Court has to satisfy itself that for
the public good or for any other compelling reason an endeavour
needs to be made so that certainty and continuity in interpretation of
law are maintained. Najakat Alia Mubarak Ali (supra) was
considered in Maliyakkal Abdul Azeez (supra) and Atul Manubhai
Parekh (supra). The coordinate Benches have not followed the
12
majority view in Najakat Alia Mubarak Ali (supra). In view of our
inability to reconcile the divergent views expressed in Najakat Alia
Mubarak Ali (supra) itself and though such decision has been held
in Atul Manubhai Parekh (supra) to be confined to its facts, under
compelling circumstances, we feel it prudent to refer the matter to
the Hon’ble the Chief Justice of India to consider the desirability of
constituting a Bench of appropriate strength for proper interpretation
of Section 428, Cr. PC. Ordered accordingly.
30. The direction for set-off in the impugned order shall remain stayed
until further orders; however, if Venkatesan has been released, he
may not be taken back in custody.
CRIMINAL APPEAL NO. 1372 OF 2025
31. This appeal is also directed against a similar order passed by the High
Court granting the benefit of set-off to the respondent, Ravichandran.
32. The same directions as given in the lead appeal shall apply in this
case.
…………………………J.
(DIPANKAR DATTA)
…………………………J.
(MANMOHAN)
NEW DELHI;
APRIL 22, 2025.
13