Life convicts are entitled to mandatory pre-conviction set-off under Section 428 Cr.P.C. notwithstanding trial court omission.

In brief

The question

1. Whether a writ petition under Article 226 of the Constitution of India is maintainable to seek the benefit of set-off when the trial court has omitted to grant the same in its judgment

The court held

The High Court allowed the petition, holding that the Petitioner is entitled to set-off under Section 428 read with Section 433-A of the Cr.P.C.

It also directed

The court directed Respondent No. 4 (Superintendent, Open District Prison, Paithan) to issue an appropriate order granting the Petitioner set-off for the period from 05/10/2010 to 15/02/2012 within three months

Rule was made absolute

01Facts

The Petitioner was convicted by the Additional Sessions Judge, Osmanabad, on 15/02/2012 for offences under Sections 302 and 323 of the IPC and sentenced to life imprisonment

p. 2, 5

The Petitioner had been in custody from the date of his arrest on 05/10/2010 until his conviction on 15/02/2012

p. 3

While the trial court granted set-off under Section 428 of the Cr.P.C. to a co-accused (Accused No. 3), it did not pass any such order for the Petitioner

pp. 4-5

The Petitioner filed this writ petition seeking a direction for the grant of set-off for his pre-conviction detention period

p. 2

The State raised a preliminary objection regarding the maintainability of a writ petition under Article 226 against a judicial order

pp. 3-4

02Issues

i.1. Whether a writ petition under Article 226 of the Constitution of India is maintainable to seek the benefit of set-off when the trial court has omitted to grant the same in its judgment

pp. 5-6

ii.2. Whether a convict sentenced to life imprisonment is entitled to the benefit of set-off under Section 428 of the Cr.P.C. for the period of pre-conviction detention

pp. 6-7

03Law Applied

The court applied Section 428 of the Cr.P.C., which provides for the period of detention undergone by the accused to be set off against the term of imprisonment imposed

p. 2

It relied on the Constitution Bench judgment in Bhagirath v. Delhi Administration (1985), which established that "imprisonment for life" is considered imprisonment for a term for the purposes of Section 428

pp. 7-8

The court further applied the principle from Rajaram Kashinath Charoskar v. State of Maharashtra (2008), holding that the grant of set-off to a life convict is a statutory benefit and falls within the domain of the Executive Government to implement, regardless of a judicial omission or specific contrary direction by a trial court

pp. 9-10

The court also distinguished Pradnya Pranjal Kulkarni v. State of Maharashtra (2025) regarding the maintainability of Article 226 petitions against judicial orders

pp. 5-6

Provisions in the judgment · 8 · Linked ones open on LawLens

Indian Penal Code, 1860 Section 302 Section 323 Section 304 Section 305 Section 307 Section 394 Section 34

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 528

04Reasoning

The court rejected the State's maintainability objection, clarifying that while judicial orders are generally not amenable to Article 226, the High Court possesses the jurisdiction to examine grievances where statutory benefits are denied

pp. 5-6

The court reasoned that Section 428 is a mandatory, benevolent provision rather than a matter of judicial discretion

p. 7, 11

By comparing the Petitioner’s situation to the co-accused who received set-off, the court found the omission in the Petitioner's case unjustified

p. 11

Following the precedent in Rajaram, the court determined that the judiciary cannot prohibit a set-off to which a convict is otherwise entitled by law, as the final calculation and commutation of sentences are executive functions governed by Sections 432 and 433 of the Cr.P.C.

pp. 9-11

Consequently, the court held that the Petitioner’s detention from 05/10/2010 to 15/02/2012 must be set off against his life sentence

p. 12