S.Sankar & Ors. v. State: Inspector of Police Central Crime Branch-Metro Wing E-5, Pattinapakkam Police Station Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.07.2009CORAM:THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMARCRL.O.P.No.14165 of 20091. S.Sankar2. Iruthayaraj @ Iruthi .. Petitioners Vs.1.State: Inspector of Police Central Crime Branch-Metro Wing E-5, Pattinapakkam Police Station Chennai2.The Superintendent of Central Prizon, Puzhal, Chennai3.The Superintendent of Central Prison, Cuddalore .. RespondentsPRAYER: Criminal Original Petition filed under Section 482Cr.P.C. to set off the period of pre-conviction imprisonment of 761days i.e. from 20.03.2002 to 19.04.2004 in S.C.No.87/2003 on the fileof the Addl. District and Sessions Judge, Fast Track Court No.1,Chennai.For Petitioner: Mr.P.VijendranFor Respondents: Mr.I.Paul Nobel Devakumar Govt. Advocate (Crl. Side) ORDERThe petitioners 1 and 2 herein were prosecuted along with 16other persons (total number OF accused persons 18) for variousoffences, including an offence of murder punishable under section 302IPC in S.C.No.87/2003 before the Additional District and SessionsJudge (Fast Track Court No.1), Chennai. The petitioners 1 and 2herein figured as accused Nos.6 and 7 in the above said sessionscase. The learned Additional District and Sessions Judge (Fast TrackCourt No.1), Chennai by a judgment dated 19.04.2004 convicted thefirst petitioner for an offence punishable under section 365 r/w 109IPC, the second petitioner for an offence punishable under section365 IPC and both the petitioners for offences punishable undersections 387, 382, 347, 364 and 201 IPC. The petitioners wereawarded the punishment of rigorous imprisonment ranging from threeyears to 10 years for the offences other than the offence of the https://hcservices.ecourts.gov.in/hcservices/ murder punishable under section 302 IPC and awarded life imprisonmentfor the offence punishable under section 302 IPC. Besidessubstantive punishment, fine was also imposed ranging from Rs.5,000/-to Rs.50,000/-. The trial court also directed that the substantivesentences awarded for the above said offences would run concurrently.The appeal preferred against the conviction and sentence was alsodismissed by this court. The maximum punishment awarded to each oneof the petitioners is the life imprisonment. However, the judgmentdoes not contain any specific direction to set off the period of pre-conviction imprisonment. According to the petitioners, they hadundergone such pre-conviction imprisonment for a period of 761 days,which period they are entitled to set off against the imprisonmentawarded. As there is no indication in the judgment regarding theperiod to be set off, the petitioners have come forward with thepresent petition under section 482 Cr.P.C for a direction to therespondents to set off the period of pre-conviction imprisonment of761 days undergone by the petitioners against the imprisonmentawarded by the trial court, namely Additional District and SessionsJudge (Fast Track Court No.1), Chennai in Sessions Case No.87/2003which was subsequently confirmed by the High Court.2. The submissions made by Mr.P.Vijendran, learned counsel forthe petitioners and by Mr.I.Paul Nobel Devakumar, learned GovernmentAdvocate (Crl.Side) representing the respondents were heard. Thematerials placed before the court by the petitioners were alsoperused.3. The petitioners, who are life convicts have come forward withthe present petition under section 482 Cr.P.C for a direction to therespondent to set off the period of imprisonment undergone by themduring the course of investigation, inquiry and trial in the case inwhich they were convicted and sentenced to undergo rigorousimprisonment for various period for various offences ranging fromthree years to ten years and also to undergo life imprisonment for anoffence punishable under section 302 IPC. The petitioners herein whofigured as accused Nos.6 and 7 in Sessions Case No.87/2003 on thefile of the Additional District and Sessions Judge (Fast Track CourtNo.1), Chennai were convicted and sentenced as follows:-I.OffenceSentence Imposed1a) First Petitioner(A6)365 r/w 109 IPC7 years rigorous imprisonment + fine ofRs.5,000/- and a default sentence of one yearrigorous imprisonment in case of default inpayment of fine1b) 2nd petitioner(A7)365 r/w 109 IPC7 years rigorous imprisonment + fine ofRs.5,000/- and a default sentence of one yearrigorous imprisonment in case of default inpayment of fine https://hcservices.ecourts.gov.in/hcservices/ II. Petitioners 1 and 2 (A6 and A7)OffenceSentence Imposed387 IPC7 years rigorous imprisonment + fine ofRs.5,000/- and a default sentence of one yearrigorous imprisonment in case of default inpayment of fine302 IPCLife imprisonment + fine of Rs.50,000/-347 IPC3 years rigorous imprisonment + fine ofRs.5,000/- and a default sentence of sixmonths rigorous imprisonment in case ofdefault in payment of fine364 IPC10 years rigorous imprisonment + fine ofRs.5,000/- and a default sentence of twoyears rigorous imprisonment in case ofdefault in payment of fine201 IPC7 years rigorous imprisonment + fine ofRs.10,000/- and a default sentence of oneyear rigorous imprisonment in case of defaultin payment of fineTotal fine amount is Rs.80,000/-. All the sentences weredirected to run concurrently.4. The petitioners have now sought for a direction that theperiod of imprisonment undergone by them prior to the date ofconviction as under trial prisoners and prisoners duringinvestigation in the above said case should be set-off against thesentence of imprisonment awarded against them.5. Relying on a judgment of the Hon'ble Apex court in Bhagirathv. Delhi Administration and Rakesh Kaushik v. Delhi Administrationreported in AIR 1985 Supreme Court 1050, the learned counsel for thepetitioners has submitted that it has become necessary for thepetitioners to seek a direction under section 482 Cr.P.C to set offthe period of imprisonment undergone by the petitioners before thedate of conviction in the above said case, as the order of sentencedoes not contain any direction to set off the period of pre-conviction imprisonment against the sentence awarded in the case.6. Section 428 of Cr.P.C reads as follows428. Period of detention undergone by the accusedto be set off against the sentence of imprisonment. —Where an accused person has, on conviction, beensentenced to imprisonment for a term, not beingimprisonment in default of payment of fine, the periodof detention, if any, undergone by him during theinvestigation, inquiry or trial of the same case andbefore the date of such conviction, shall be set offagainst the term of imprisonment imposed on him on such https://hcservices.ecourts.gov.in/hcservices/ conviction, and the liability of such person to undergoimprisonment on such conviction shall be restricted tothe remainder, if any, of the term of imprisonmentimposed on him:Provided that in case referred to in section 433-A, such period of detention shall be set off againstthe period of fourteen years referred to in thatsection.8. Section 433-A of Cr.P.C reads as follows:-"433-A. Restriction on powers of remission orcommutation in certain cases.— Notwithstanding anythingcontained in Section 432, where a sentence ofimprisonment for life is imposed on conviction of aperson for an offence for which death is one of thepunishment provided by law, or where a sentence of deathimposed on a person has been commuted under section 433into one of imprisonment for life, such person shall notbe released from prison unless he had served at leastfourteen years of imprisonment." Section 433-A of Cr.P.C imposes a restriction on the powers ofthe government in section 432 and 433 Cr.P.C. It relates to casesof: 1) a sentence of life imprisonment imposed on conviction of aperson for an offence which is punishable also with death sentenceand 2) commutation of sentence of death imposed on a person to lifeimprisonment under Section 433. In such cases the person convictedshall not be released from prison unless he has served at least 14years of imprisonment including the pre-conviction imprisonment. Aconjoint reading of Section 428, 432, 433 and 433-A of Cr.P.C willmake it clear that a person sentenced to life imprisonment for anoffence for which death sentence is also one of the punishmentsprescribed, shall not be released from prison, unless he has servedin the prison for at least 14 years, which period shall include thepre-conviction imprisonment.9. It is not the case of the petitioners that they would beentitled to seek release as they would have completed at least 14years of imprisonment, if the pre-conviction imprisonment is takeninto consideration. When the right under Section 428 is a statutoryright, it is of no consequence whether the trial court in itsjudgment does or does not direct the pre-conviction imprisonment tobe set off. The court does have no discretion in this regard.10. Referring to Section 428 and 433-A of Cr.P.C and alsorelying on a judgment of the Hon'ble Apex court in Bhagirath v. DelhiAdministration and Rakesh Kaushik v. Delhi Administration reported inAIR 1985 Supreme Court 1050, the learned counsel for the petitionershas submitted that since the order of sentence does not contain anydirection to set off the period of pre-conviction imprisonmentundergone before conviction in the very same case, it has become https://hcservices.ecourts.gov.in/hcservices/ necessary for the petitioners to seek such a direction under Section482 Cr.P.C. In the above said judgment of the Hon'ble apex court,relied on by the learned counsel for the petitioner, it was held thatimprisonment for life shall also be an imprisonment for a term andhence the benefit of Sections 428 and 433-A shall enure to suchprisoners also. When such an emphatic pronouncement has already beenmade by the Hon'ble Supreme Court besides the provisions being soclear without giving any room for ambiguity, this court is at a lossto understand what is the occasion for the petitioner to approachthis court for a direction under Section 482 Cr.P.C. It wascontended in the case before the Hon'ble Supreme Court that theprisoner therein would have completed 14 years of imprisonment inaccordance with Section 433-A, if the set off stipulated in Section428 and 433-A of Cr.P.C. was taken into consideration. On thatground alone the prisoner therein moved for a direction to refer hiscase to the Delhi Administration to consider his case for commutationand an order of release on the ground that he had completed actualimprisonment for a period of 14 years. 11. In this case, the petitioners were convicted by the trialcourt on 19.04.2004. As per the particulars found in the petition,the petitioners had undergone imprisonment before conviction for aperiod of 761 days. It is not the case of the petitioners that timehas ripened for seeking their release under Section 433-A Cr.P.C.Admittedly, no order commuting the life sentence into a fixed termsentence has been passed by the appropriate government under Section433 till date. 12. Under such circumstances, the present petition filed by thepetitioners on the assumption that the authorities may not considerthe provisions regarding remission properly, is not only pre-maturebut also mis-conceived. For that reason alone, the present petitiondeserves to be dismissed. Accordingly, this petition is dismissed.However, it is made clear that the petitioners, at appropriatetime can make a representation to the authorities for their release.Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrarasr/To1. The Additional District and Sessions Judge, Fast Track Court No.I, Chennai.2. -do- Thro' The Principal District Judge, Chennai. https://hcservices.ecourts.gov.in/hcservices/

3.Inspector of Police Central Crime Branch-Metro Wing E-5, Pattinapakkam Police Station Chennai4.The Superintendent of Central Prizon, Puzhal, Chennai5.The Superintendent of Central Prison, Cuddalore6.The Public Prosecutor High Court Madras-600 104 CRL.O.P.No.14165 of 2009JRG(CO)EM/12.10