Jacob Chacko Theketala v. State of Tamil Nadu, Represented by CBI, New Delhi, Camp at Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :15.06.2010CORAMTHE HONOURABLE MR.JUSTICE T. SUDANTHIRAMCrl.A.No.526 of 2009Jacob Chacko Theketala .. Appellant/A.4VersusState of Tamil Nadu, Represented by CBI, New Delhi,Camp at Chennai. .. Respondent/ComplainantPrayer:-Criminal Appeal filed under Section 374 (2) of Cr.P.C.,against the judgment dated 30.01.2008 passed in C.C.No.1 of 2008 bythe learned Additional Special Judge, CBI Cases, Chennai for nonremission of the period of imprisonment prior to the date ofJudgment.For Appellant: Mr.T.ArulrajFor Respondent : Mr.N.Chandrasekaran, Special Public Prosecutor for CBI Cases.JUDGMENTThe appellant herein is the fourth accused in C.C.No.1 of 2008on the file of the learned Additional Special Judge for CBI Cases,Chennai and he stands convicted for the offences under Sections255, 258 and 420 I.P.C. and sentenced to undergo rigorousimprisonment for two years and to pay a fine of Rs.1,00,000/-, indefault of payment of fine, to undergo imprisonment for six monthsfor the offence under Section 255 I.P.C.; sentenced to undergorigorous imprisonment for five years and to pay a fine ofRs.1,00,000/-, in default of payment of fine, to undergoimprisonment for six months for the offence under Section 258I.P.C.; and sentenced to undergo rigorous imprisonment for twoyears and to pay a fine of Rs.1,00,000/-, in default of payment offine, to undergo rigorous imprisonment for six months for theoffence under Section 420 I.P.C. and the sentence of imprisonmentare ordered to run concurrently. Aggrieved by the said convictionand sentence, the appellant herein has preferred this CriminalAppeal. https://hcservices.ecourts.gov.in/hcservices/

2.The appellant pleaded guilty before the trial Court andon the basis of his plea of guilt, the trial Court convicted andsentenced him as stated above.3.Mr.T.Arulraj, learned counsel appearing for the appellanthas submitted that the two other co-accused viz., A.1 by name AbdulKarim Telgi @ Lala @ Karim Lala @ Big Boss and A.3 by nameC.S.Balaji, who also pleaded guilty and were convicted by the trialCourt preferred appeals before this Court and in the appealspreferred by them they were acquitted from the charge under Section255 I.P.C. for the reason that the prosecution case do notconstitute an offence under Section 255 I.P.C. The similarbenefits must be extended to this appellant also. The learnedcounsel for the appellant has further submitted that the appellantis confined in jail from 22.03.2003 and though he was arrested inconnection with another case, a final report was filed in this caseon 21.12.2005 and this appellant was shown as one of the accusedand P.T. Warrant also was issued and the appellant was producedbefore the trial Court periodically. As such, the appellant shouldhave been treated as under-trial prisoner in this case also and thetrial Court should have given the benefit of Section 428 of Cr.P.C.setting off the period of imprisonment prior to the date ofjudgment in this case. It is also submitted that in spite of thefact of detention of the appellant in Pune jail, being brought tothe notice of the learned Special Judge, the benefit under Section428 of Cr.P.C. has not been given to him and an injustice is causedto the appellant.4.The learned Special Public Prosecutor appearing for CBICases has submitted that the conviction under Section 255 I.P.C. inrespect of the co-accused has already been set aside as per thejudgment of this Court rendered on 08.04.2010 in Crl.A.Nos.436 and766 of 2008. It is further submitted that with regard to theapplication of Section 428 Cr.P.C. set off to this appellant he wasnot arrested by the respondent police in connection with this caseand he was an under-trial prisoner in Pune in respect of anothercase of similar nature in which he was arrested. Being not arrestedin this case his detention in prison in respect of another case thebenefit of Section 428 Cr.P.C. cannot be given to this appellant.5.This Court has considered the submissions made by thelearned counsel on either side and also perused the materialsavailable on record.6.This Court had already set aside the conviction andsentence imposed on the first and third accused viz., Abdul KarimTelgi @ Lala @ Karim Lala @ Big Boss and C.S.Balaji for the offenceunder Section 255 I.P.C. in the judgment rendered in Crl.A.Nos.436and 766 of 2008 and the judgment of which is also reported in 2010(1) L.W. (Crl.) 621, wherein, in paragraph No.13, it is observed asfollows:- https://hcservices.ecourts.gov.in/hcservices/ "13. In view of the ratio laid down in the casescited supra, this Court is of the considered view thatif the facts do not constitute an offence, but thecharge is framed, the accused pleads guilty andconvicted on such plea, such conviction ischallengeable in appeal and Section 375 Cr.P.C. doesnot stand as a bar, on the other hand it permits anappeal when the legality of the sentence ischallenged."7.Therefore, the conviction and sentence imposed on theappellant/A.4 under Section 255 I.P.C. are set aside and theconviction and sentence imposed on the accused under Sections 258and 420 I.P.C. are confirmed.8.As per the final report filed before the Court, theappellant, who is the fourth accused in this case, was not shownarrested by the respondent police pending investigation though hewas confined in the prison at Pune. The final report was filed inthis case on 21.12.2005 and the learned Special Judge also issued aP.T. Warrant for the production of the appellant/A.4 and otheraccused, who were in prison. On 23.01.2006, the appellant wasproduced before the trial Court. Subsequently, on various datesthe appellant was produced before the trial Court by the jailauthorities and finally, the appellant was produced before thetrial Court on the date of judgment also. It appears from therecords that after filing the final report, the accused wasproduced before the trial Court for the first time on 23.01.2006 onthe basis of the P.T. Warrant issued by the trial Court andthereafter till the date of Judgment, several times he had beenproduced on the basis of the P.T. Warrant issued by the trialCourt. From the date of filing the final report and till the dateof the judgment, the appellant was in jail. Though he had not beenarrested by the respondent police, he had been brought to the trialCourt and he was under the purview of the Court. 9.The question now arises for consideration is 1)The appellant being not arrested by therespondent police and not remanded to custody inconnection with this case but having been in jail duringthe period of trial in this case. Whether the appellantcould be treated as under-trial prisoner for this caseduring the relevant period and that period could be setoff as per Section 428 Cr.P.C.10.Section 428 of Cr.P.C. reads as follows:-"428. Period of detention undergone by the accused tobe set off against the sentence of imprisonment.- Where anaccused person has, on conviction, been sentenced to https://hcservices.ecourts.gov.in/hcservices/ imprisonment, for a term [not being imprisonment in defaultof payment of fine], the period of detention, if any,undergone by him during the investigation, inquiry or trialof the same case and before the date of such conviction,shall be set off against the term of imprisonment imposedon him on such conviction, and the liability of such personto undergo imprisonment on such conviction shall berestricted to the remainder, if any, of the term ofimprisonment imposed on him."11.It is observed by the Hon'ble Supreme Court in the caseof Atul Manubhai Parekh Vs. Central Bureau of Investigationreported in 2010 (1) MWN (Cr.) 139 (SC) as follows:-"9. The wording of Section 428 is, in our view,clear and unambiguous. The heading of the Section itselfindicates that the period of detention undergone by theaccused is to be set off against the sentence ofimprisonment. The Section makes it clear that the periodof sentence on conviction is to be reduced by the extentof detention already undergone by the convict duringinvestigation, enquiry or trial of the same case. It isquite clear that the period to be set off relates only topre conviction detention and not to imprisonment onconviction.10. Let us test the proposition by a concreteexample. A habitual offender may be convicted andsentenced to imprisonment at frequent intervals. If theperiod of pre-trial detention in various cases is countedfor set off in respect of a subsequent conviction wherethe period to detention is greater than the sentence inthe subsequent case, the accused will not have to undergoimprisonment at all in connection with the latter case,which could not have been the intention of thelegislature while introducing Section 428 in the Code in1973. The reference made in the several decisions citedbefore us to Section 427, Cr.P.C. appears to be a littleout of focus since the same deals with several sentencespassed in the same case against the same accused ondifferent counts which are directed to run concurrently.Section 428, Cr.P.C. deals with a different situation,where the question of merger of sentence does not ariseand the period of set off is in respect of each separatecase and the detention undergone by the accused duringthe investigation or trial of such case. The philosophyof Section 428, Cr.P.C., has been very aptly commentedupon by this Court in Government of A.P. V. AnneVenkateswara Rao, 1977 (3) SCC 298, in the followingterms: https://hcservices.ecourts.gov.in/hcservices/ "Section 428 provides that the period of detentionof an accused as an undertrial prisoner shall be set offagainst the term of imprisonment imposed on him onconviction."11. In fact, a similar situation arose in the caseof Maliyakkal Abdul Azeez v. Asstt. Collector, Kerala &Anr., 2003 (1) CTC 316 (SC): 2003(2) SCC 439, wherein itwas sought to be argued on behalf of the petitioner thathe was entitled to the benefit of set-off under Section428, Cr.P.C., for the period of detention under theConservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974. While deciding the saidcase, the Hon'ble Judges observed that Section 428,Cr.P.C., had been brought on the statue book for thefirst time in 1973 and was incorporated in the light ofthe proposal put forward by the Joint Select Committeewhich noticed that in many cases the accused persons werekept in prison for a very long period as undertrialprisoners and in some cases the period spent in jail byundertrial prisoners far exceeded the sentence ofimprisonment ultimately awarded. It was also noticed bythe Select Committee with concern that a large number ofprisoners in the overcrowded jails of the country wereundertrial prisoners and that Section 428, Cr.P.C., wasintroduced to remedy the unsatisfactory state of affairsby providing for setting-off of the period of detentionas an undertrial prisoner against the sentence ofimprisonment imposed on the accused.12. The decision in the case of Maliyakkal AbdulAzeez (supra) was rendered after the decision in NajakatAlia's case (supra) and we respectfully follow the sameas it reiterates the law laid down in the earlier casessuch as in the case of Anne Venkateswara Rao (supra),Raghbir Singh (supra) and Champalal Punjaji Shah (supra) 13.The facts on which the decision was rendered inNajakat Alia Mubarak Ali's case are distinguishable fromthe facts of this case. In the said case, the convict wasundergoing imprisonment in two cases in which he had beenconvicted and he claimed that he was entitled to set-offin respect of both the cases. This Court drawinginspiration from Section 427 on the concurrent running ofsentences, held that the petitioner was entitled to set-off in both cases in view of the doctrine of merger ofsentences when directed to run concurrently in aparticular case where conviction is on many counts." https://hcservices.ecourts.gov.in/hcservices/

12.It is held by the Hon'ble Allahabad High Court in thedecision reported in the case of Shabbu Vs. State of U.P. reportedin 1982 Crl.L.J. 1757 : (AIR 1982 NOC 255) (Full Bench) asfollows:-"....... under S.428 Cr.P.C., the period of detention,as an undertrial, of an accused in a particular case canbe set-off only towards the sentence ultimately awardedto him in that very case. Whether or not the detentionof a person in one case should also be treated to be hisdetention for the purposes of any other case, wherein heis wanted, is a Question to be decided upon the facts andcircumstances of each case. No set formula can be laiddown in that behalf. If the facts and circumstances of aparticular case indicate that a person already detainedin one case was also subsequently wanted in another caseand he was not formally detained in that other case onaccount of the negligence of the concerned authorities,and for no fault of his, he can. with all justification.claim that his detention in the earlier case should alsobe deemed to be his detention for the purposes of the 2ndcase. In that event, benefit of S.428 Cr.P.C. can beextended to him."The last case is. Lalrinfela v. State (1982 Cri. LJ1793) (Gau). It was held in that case that if an accusedis arrested and detained in two cases, the computationfor the period of set-off must be done separately and heshall be entitled to claim set-off in both the cases. Weare in respectful agreement with the view taken in thatcase.13.This Court in the case of Chinnasamy Vs. State of TamilNadu and others reported in 1983 STPL (LE-Crim) 15452 Mad has heldas follows:-"13. In the light of the decisions set out above, ifwe examine the facts of the present case, we find thatthe petitioner was arrested on 19-04-1982 andsubsequently he was charged in three cases for similaroffences, viz.. under Ss.457 and 380 I.P.C. The threecases were numbered consecutively as C.C.Nos.506, 507 and508 of 1982. Convictions in all the three cases wereawarded on the same day and the petitioner was sentencedto undergo rigorous imprisonment for six months in eachcase, the sentences to run concurrently. In suchcircumstances, it has to be taken that the arrest of thepetitioner on 19.04.1982 was in respect of all the threecases and his being remanded to custody is referable toeach of the three cases filed against him. Such being thecase, it necessarily follows that the petitioner will be https://hcservices.ecourts.gov.in/hcservices/ entitled to claim the benefit of, set-off in each of thethree cases. The trial Magistrate was not justified ingranting set-off in C.C.No.506 of 1982 alone and inrefusing to grant set-off in the other two cases. Thepetitioner's claim for set-off in the second and thirdcases satisfies all the requirements of Section 428,Cr.P.C. It is by now well established that an accusedcan undergo pre-trial detention in more than one case atthe same time and likewise there is also no bar topreventive and pre-trial detention as well as preventiveand punitive detention running simultaneously. In view ofthis position, it follows that the benefit of set-offgiven to the petitioner in the first case cannot bedenied to him in the second and third cases as well."14.A Division Bench of this Hon'ble High Court inthe case of Daulath Vs. State of Tamil Nadu, rep. by itsSecretary to Government, Home (Prison) Department andothers reported in 2010 (1) MWN (Cr.) 93 (DB) has held asfollows:-"13. Considering the true effect of expression"same case" appearing in Section 428 Cr.P.C., in Stateof Maharashtra and another v. Najakat Alia Mubarak Ali,2001 SCC (Cri) 1106, the Supreme Court has held asunder:-"15. The purpose is therefore clear that theconvicted person is given the right to reckon theperiod of his sentence of imprisonment from thedate he was in jail as an under-trial prisoner.In other words, the period of his being in jailas an under-trial prisoner would be added as apart of the period of imprisonment to which he issentenced. We may now decipher the tworequisites postulated in Section 428 of the Code:1. During the stage of investigation,enquiry or trial of a particular case theprisoner should have been in jail at least for acertain period.2. He should have been sentenced to a termof imprisonment in that case.16. If the above two conditions are satisfiedthen the operative part of the provision comesinto play i.e. if the sentence of imprisonmentawarded is longer than the period of detentionundergone by him during the stages ofinvestigation, enquiry or trial, the convicted https://hcservices.ecourts.gov.in/hcservices/ person need undergo only the balance period ofimprisonment after deducting the earlier periodfrom the total period of imprisonment awarded.The words "if any" in the section amplify that ifthere is no balance period left after suchdeduction the convict will be entitled to be setfree from jail, unless he is required in anyother case. In other words, if the convict wasin prison, for whatever reason, during the stagesof investigation, enquiry or trial of aparticular case and was later convicted andsentenced to any term of imprisonment in thatcase the earlier period of detention undergone byhim should be counted as part of the sentenceimposed on him.17. In the above context, it is apposite to pointout that very often if happens, when an accusedis convicted in one case under different countsof offences and sentenced to different terms ofimprisonment under each such count, all suchsentences are directed to run concurrently. Theidea behind it is that the imprisonment to besuffered by him for one count of offence will, infact and in effect be imprisonment for othercounts as well.18. Reading Section 428 of the Code in the aboveperspective, the words "of the same case" are notto be understood as suggesting that the set-offis allowable only if the earlier jail life wasundergone by him exclusively for the case inwhich the sentence is imposed. The period duringwhich the accused was in prison subsequent to theinception of a particular case, should becredited towards the period of imprisonmentawarded as sentence in that particular case. Itis immaterial that the prisoner was undergoingsentence of imprisonment in another case alsoduring the said period. The words "of the samecase" were used to refer to the pre-sentenceperiod of detention undergone by him. Nothingmore can be made out of the collocation of thosewords."14. Earlier in Raghbir Singh v. State of Hariyana,1984 (4) SCC 348 : 1984 SCC (Cri) 616, the Supreme Courthas held as under:-"In such a case the period of detention is reallya part of the period of imprisonment which he is https://hcservices.ecourts.gov.in/hcservices/ undergoing having been sentenced earlier foranother offence. It is not the period ofdetention undergone by him during theinvestigation, enquiry or trial of the same casein which he is later on convicted and sentencedto undergo imprisonment. He cannot claim adouble benefit under Section 428 of the Codei.e., the same period being counted as part ofthe period of imprisonment imposed for committingthe former offence and also being set off againstthe period of imprisonment imposed for committingthe latter offence as well"15. In the above said case, it was decided that theaccused cannot claim a double benefit by getting set offthe period during which he was in prison based on theconviction for another case. In short, it was heldtherein that the accused can get the benefit of set offof the cases but not in both. However, in Najakat AliaMubarak Ali's case, it has been held that Section 428Cr.P.C. does not contain any indication that if a personwas in jail as an under trial prisoner in the secondcase, the benefit envisaged in the Section can becontinued to him in respect of the second case.Further, it was also observed that the words "of thesame case" are not to be understood as suggesting thatthe set off is allowable only if the earlier jail lifewas undergone by him exclusively for the case in whichthe sentence is imposed.16. Following Najakat Alia Mubarak Ali's case, theDivision Bench of this Court in Kora Karuppan @Chinnathambi v. Superintendent of Prisons, CDJ 2003 MHC070, has held that accused can suffer incarceration ofmore than one sentence at one and the same time and thatit is not necessary that the period of incarcerationshould be calculated separately or should be socalculated as regards only the first offence and notagainst the following offences.17. The ratio of the decision in Najakat AliaMubarak Ali's case squarely applies to the case on hand.In the instant case while undergoing the substantivesentence in one group of cases, the convict was producedunder Prisoner's Transit Warrant in other group of casesand he was treated as remand prisoner in the next groupof cases. Though, Petitioner's son was sufferingincarceration in connection with other cases as undertrial prisoner, he was also in remand in other group ofcases. We find no force in the contention of thelearned Additional Public Prosecutor that while the https://hcservices.ecourts.gov.in/hcservices/ prisoner is undergoing substantive sentence in one case,he cannot be treated as remand prisoner in another caseto invoke the benefit of Sec.428 Cr.P.C."15.Applying the principles laid down in the above case, thisCourt is of the considered view that though the appellant wasconfined in prison at Pune as under-trial prisoner in respect ofanother case, he being not arrested in this particular case andbeing not remanded pending investigation no benefit can be given tohim under Section 428 of Cr.P.C. But after filing the finalreport, the accused was produced on the basis of P.T. Warrantissued by the trial Court on 23.01.2006. From that date on wards,he was periodically produced from the prison during the pendency ofthe trial till the date of judgment. The accused being producedbefore the Court from the prison on the basis of the P.T. Warrantissued as final report was filed against him, the trial Court oughtto have remanded him to judicial custody in this case. But theSpecial Court had failed to do so and to specifically mention onrecord that the appellant was remanded to judicial custody in thiscase. The accused being confined in jail through out the trialperiod and being produced before the trial Court periodically,merely because he was not brought as an under-trial prisoner onrecord for his no fault, he should not be made to suffer. Though itwas not specifically mentioned in the Court record that theappellant was the remand prisoner during the relevant period from23.01.2006 till the date of judgment by the trial Court, it shouldbe deemed that the appellant/fourth accused was only under-trialprisoner in the present case. Therefore, the appellant must begiven the benefit of Section 428 Cr.P.C. to set off the period ofdetention only from 23.01.2006. The jail authorities are directedto grant set off to the appellant/A.4 from the period 23.01.2006 to30.01.2008. 16.In the result, this Criminal Appeal is partly allowed andthe conviction and sentence imposed on the appellant/A.4 by thetrial Court under Section 255 I.P.C. are set aside. The convictionand sentence imposed on the accused under Sections 258 and 420I.P.C. are confirmed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar.jrlTo1. The Additional Special Judge, CBI Cases, Chennai. https://hcservices.ecourts.gov.in/hcservices/

2. The Central Bureau of Investigation, New Delhi, Camp at Chennai3. The Special Public Prosecutor for CBI Cases, High Court, Madras.4. The Superintendent, Central Prison, BangaloreCrl.A.No.526 of 2009JRG (CO)RH (28.6.10)