Set Off Under Section 428 Cr.P.C

Section 428 of the Code of Criminal Procedure, 1973 (the “Cr.P.C” for short) enabling an accused person to set off against the sentence of imprisonment, the period of detention undergone by him at the pre-conviction stage, is a new provision. There was no corresponding provision in the old Code i.e. the Code of Criminal Procedure, 1898. Section 428 Cr.P.C reads as follows:-

“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, inquiry 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:

Provided that in cases referred to in section 433-A, such period of detention shall be set off against the period of fourteen years referred to in that section”.

In Govt. of A.P. & others  v. Anne Venkateswara Rao & Others - (1977) (3) SCC 298 = AIR 1977 SC 1096 the Supreme Court observed as follows in paragraph 7 of the said verdict:-

“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”. (Emphasis supplied)

In paragraph 4 of Champalal Punjaji Shah v. State of Maharashtra - (1982) (1) SC 507 =  AIR 1982 SC 791, a three-Judge Bench of the Supreme Court speaking through Justice O. Chinnappa Reddy followed Anne Venkateswara Rao - AIR 1977 SC 1096, and quoted with approval the aforementioned passage from Anne Venkateswara Rao.

Thereafter a two-Judge Bench of the Supreme Court (E.S Venkataramiah and Sabyasachi Mukharji – JJ ) considered the question again in Raghbir Singh v. State of Haryana – AIR 1984 SC 1796. The facts of Raghbir Singh are as follows:-

11-01-1980 onwards: The accused Raghbir Singh was in Judicial custody in connection with a Delhi case for offences under Sections 457, 380 and 411 IPC.

• There was another case registered against him by the Karnal Police (in Haryana) for offences under Sections 459 and 307 IPC.

01-02-1980: Addl. Sessions Judge, Karnal, found the accused guilty of offences under Sections 459 and 307 IPC and sentenced him to undergo rigorous imprisonment for 5 years 7 years respectively. The sentences were directed to run concurrently.  

• The convicted accused was committed to the District Jail, Rohtak in Haryana.

 16-02-1981: A Metropolitan Magistrate at Delhi tried the accused who was in Judicial custody in the Delhi case. The accused was found guilty of offences under Sections 457 and 380 IPC and was sentenced to undergo rigorous imprisonment for 1 year and 4 months respectively. The sentences were directed to run concurrently. Set off under Section 428 Cr.P.C was also allowed for the pre-conviction detention undergone in that case.

• Since there was no direction under Section 427 (1) Cr.P.C to the effect that the subsequent sentence by the Delhi Court shall run concurrently with the sentence awarded in the Haryana Case, the sentence of imprisonment awarded by the Delhi Court would commence only at the expiration of the sentence imposed by the Karnal Court.


• From the prison, the accused/convict sent an intimation to the effect that his Judicial custody from 11-01-1980 (date of his arrest) to 16-02-1981 (date of his sentence in the Delhi case) should be set off against the sentence imposed by the Delhi Court.


•  The State Government contended that the accused could be given set off only in one case and that too from 11-01-1980 (date of arrest) to 01-02-1980 (date of conviction and sentence in the Haryana case which was tried first) only and that from     01-02-1980 onwards his custody in prison was not detention within the meaning of Section 428 Cr.P.C, but it was custody pursuant to the sentence of imprisonment in the Haryana case.


• Since the above claim of the accused was not acceded to, the accused moved the Supreme Court by means of a writ petition filed under Article 32 of the Constitution of India.

13-09-1984: The Supreme Court upheld the objections of the State Government and held as follows:-

“…….in order to secure the benefit of S.428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced. It follows that if a person is undergoing the sentence of imprisonment imposed by a court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in the latter case even though he was under detention during such period. In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence. It is not the period of detention undergone by him during the investigation, inquiry or trial of the same case in which he is later on convicted and sentenced to undergo imprisonment. He cannot claim a double benefit under S.428 of the Code i. e. the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well.”

On that view of the matter, the Apex Court dismissed the writ petition filed by the accused.  

In Monian Pillai v. State – 1986 KLT 1370 , a learned Single Judge of the Kerala High Court ( Justice K. T Thomas) held that the words “of the same case” occurring in Section 428 Cr.P.C, are not to be understood as suggesting that the set off is allowable only if the detention was in connection with the same case in which the accused is convicted and sentenced to imprisonment and that such an accused person sentenced to imprisonment would be entitled to set off against the term of imprisonment, if he was undergoing detention in other cases as well.

In Stephen v. Public Prosecutor – 1989 (2) KLT 827 the same Judge (of the Kerala High Court) who decided Monian Pillai, held that Monian Pillai’s case (1986 KLT 1370) was wrongly decided without noticing Raghbir Singh (AIR 1984 SC 1796) and held that in order to secure the benefit of Section 428 Cr.P.C, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced and, therefore, if a person is undergoing the sentence of imprisonment imposed by a Court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment which is imposed on him in the other case even though he was under detention during such period.

Thereafter a three-Judge Bench of the Supreme Court in State of Maharashtra v. Najakat @ Mubarak Ali – AIR 2001 SC 2255 consisting of Justice K. T Thomas, Justice R. P Sethi and Justice S. N Phukan, considered the question again. The facts of Najakat @ Mubarak Ali, as revealed by paragraphs 5 to 8 and 41, are as follows:-

29-01-1995: Accused Mubarak Ali was arrested in connection with CR 707/95 of Khar Police Station, Mumbai for offences under Sections 395 and 397 IPC.

29-11-1995: CR 737/95 was registered by Santacruz Police Station, Mumbai against the accused for offences under Sections 392 and 395 IPC.

• Accused was shown as arrested in both cases. One case was subsequently registered as SC 230 of 1995 and the other case was registered as SC 323 of 1996 before the Sessions Court.

03-04-1998: The accused was tried and convicted in SC 230 of 1995 and sentenced to imprisonment. Set off under Section 428 Cr.P.C was also allowed.

23-07-1998: The accused was tried and convicted in SC 323 of 1996 and sentenced to imprisonment. Here also set off under Section 428 Cr.P.C was allowed.

14-09-1998: The accused sent an intimation to the Jail authorities that he is entitled to be released from jail since, according to him, giving credit to the set off allowed in both cases, he had already served the sentences imposed on him in both the cases.

• The jail authorities declined the request of the accused holding that he was entitled to set off only in the first case in which he was convicted.


• Accused challenged the decision of the jail authorities before the High Court of Bombay.


• The Bombay High Court in (1999) 1 Mah. L.J 334 held that the accused is entitled to set off in both cases and directed his release forthwith.


• The accused was released from prison.


• The State of Maharashtra took up the matter in appeal to the Supreme Court.  The case was heard by three Judges.

09-05-2001 : The majority of two Judges (Justice K. T. Thomas and Justice S. N. Phukan with Justice    K. T Thomas rendering the leading Judgment) took the view that the words “of the same case” occurring in Section 428 Cr.P.C are not to be understood as suggesting that the set off is allowable only if the earlier jail term was undergone by him exclusively for the case in which the sentence is imposed. Dissenting from the view expressed by the two-Judge Bench of the Supreme Court in Raghbir Singh v. State of Haryana – AIR 1984 SC 1796, the majority held that the pre-sentence period of detention undergone by the accused in jail as an undertrial prisoner can be set off against the period of sentence imposed on him irrespective of the fact whether he was in jail in connection with the same case or some other case during the said period. The majority, therefore, ordered dismissal of the State’s appeal and confirmed the verdict of the High Court holding that the accused was entitled to set off in both the cases.

Justice R. P. Sethi who dissented from the majority, however, took the view in accord with Raghbir Singh’s case and held that in order to secure the benefit of Section 428 Cr.P.C, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced. The dissenting Judge took the view that Raghbir Singh’s case does not require any reconsideration and that if the view of the majority were to be followed, then any person accused of a heinous crime would be at liberty to commit minor offences and eventually escape from any imprisonment for the minor offences by claiming the status of an undertrial prisoner in the main case. The learned Judge accordingly concluded that the Judgment of the High Court was unsustainable and held that the accused was not entitled to the benefit of set off in the second case.

NOTE: One aspect to be taken note of in this case is that right or wrong, the accused was held entitled to set off by the trial Judges in both the cases and that direction, at least in the second case was not challenged by the State before the appropriate forum at the appropriate stage.        

In Maliyakkal Abdul Azeez v. Assistant Collector, Kerala & Another – (2003) 2 SCC 439, a two-Judge Bench of the Supreme Court (Shivaraj V. Patil and Arijit Pasayat – JJ ) considered the question again. Even though Najakat @ Mubarak Ali – AIR 2001 SC 2255 was also cited before the learned Judges they were inclined to follow the three-Judge Bench decision in Champalal Punjaji Shah (AIR 1982 SC 791) and Anne Venkateswara Rao (AIR 1977 SC 1096) in preference to Najakat @ Mubarak Ali.

A Division Bench of the Kerala High Court, comprising of Justice K.S Radhakrishnan and Justice Antony Dominic in Benson v. State of Kerala – 2007 (4) KLT 180 took pains to make an endeavor to harmonise the apparent conflict of views as aforesaid. But, after a review of the entire case law, the Division Bench speaking through justice Radhakrishnan concluded in paragraphs 6 and 8 of the verdict that Najakat @ Mubarak Ali had gone a little further holding that in order to get the benefit of set off under Section 428 Cr.P.C it is not necessary that the accused should have undergone the pre-conviction detention exclusively for the case in which he has been convicted and sentenced to imprisonment.

Yet another three Judges Bench (Dr. Arijit Pasayat, Lokeshwar Singh Panta, and P. Sathasivam – JJ ) of the Supreme Court in State of Punjab v. Madan Lal – (2009) 5 SCC 238 examined the issue again. The three-Judge Bench speaking through Justice Arijit Pasayat followed Najakat @ Mubarak Ali (AIR 2001 SC 2255). But, strangely enough, there is not even a whisper about Maliyakkal Abdul Azeez (2003) 2 SCC 439 in which the very same learned Judge had preferred to follow the three Judges Bench decision in Champalal Punjaji Shah (AIR 1982 SC 791) and Anne Venkateswara Rao (AIR 1977 SC 1096) in preference to Najakat @ Mubarak Ali.

In Atul Manubhai Parekh v. Central Bureau of Investigation – (2010) 1 SCC 603 = 2009 (4) KLT 945 a two-Judge Bench of the Supreme Court (Altamas Kabir and Cyriac Joseph – JJ ) was not inclined to follow Najakat @ Mubarak Ali.  In paragraphs 8 and 12 of the decision they took notice of the dissenting view of one of the Judges (R. P Sethi – J ) in Najakat @ Mubarak Ali and observed that the dissenting view was in tune with Raghbir Singh (AIR 1984 SC 1796) and the three-Judge Bench decision in Champalal Punjaji Shah (AIR 1982 SC 791) and also in tune with the decision in Maliyakkal Abdul Azeez – (2003) 2 SCC 439 which  was rendered after the decision in Najakat @ Mubarak Ali.

Thus, if we go by the preponderance of judicial opinion, the Judges of the Supreme Court lean in favour of the view that an accused person who is sentenced to imprisonment in a case would be entitled to set off the period of detention undergone by him during the investigation, inquiry or trial of that case in which he has been convicted and sentenced meaning thereby that the detention must have been exclusively for the case in which he is so convicted and sentenced to imprisonment. But going by the strength of the Judges, Najakat @ Mubarak Ali - AIR 2001 SC 2255 and Madan Lal – (2009) 5 SCC 238 are three Judge Bench decisions having more binding value, besides being legally and practically sound. Personally speaking, I am of the humble opinion that the anti-Najakat view stems from the misconception that Section 428 Cr.P.C postulates a specific order of detention (order of remand) of the accused to custody in the very same case in which he is convicted and sentenced to imprisonment.

The mechanics of Section 428 Cr.P.C can be better illustrated by the following hypothetical situations:-

A person who is an absconding accused in a housebreaking and theft case (Section 454 IPC) at Dadar (in Mumbai), is arrested by the Sion Police (in Mumbai) in connection with a theft committed at Sion. The stolen property in the Sion case and found in the possession of the accused is seized by the Sion police. On the strength of the confession by the accused while in custody, the stolen property in the Dadar case is also recovered under Section 27 of the Evidence Act. Both cases are under investigation. The accused is then got remanded to judicial custody by the Sion police in the Sion case. He was never arrested or remanded in the Dadar case. The respective investigating officers file charge sheets against the accused in both cases before the respective Courts.

1. The Sion case is yet to be taken up for trial. The Dadar Court secures the presence of the accused on a production warrant and tries him. The accused is convicted and sentenced to imprisonment in the Dadar case. Is he entitled to set off in the Dadar case the period of investigation, inquiry or trial undergone by him pursuant to the order of remand made in the Sion case ? 


2. Supposing the Sion case was taken up for trial first and the accused was convicted and sentenced to imprisonment and set off was also given and thereafter the Dadar case is tried and the accused is convicted and sentenced to imprisonment. Will the accused be entitled to set off in the Dadar case and if so, can he claim set off even for the period subsequent to the date on which the sentence of imprisonment was imposed in the Sion case ?           

 MY ANSWER TO THE ABOVE SITUATIONS

•  Yes, set off can be allowed in the Dadar case tried first even though the remanded custody of the accused was in the Sion case. It is pertinent to note that Section 428 does not say that in order to secure the benefit of that Section the accused must have been remanded to custody in the same case. The Section only says that the accused must have undergone detention during the stage of investigation, inquiry or trial of the case in which he is sentenced to imprisonment. Such detention may be pursuant to an order of remand made in the same case or made in some other case. The only rider is that such detention must have been undergone by the accused during the investigation, inquiry or trial of the same case also. This is the sensible view which can be taken when there is plurality of cases against the very same accused person. In a similar situation, set off was allowed by the High Court of Kerala in Chandran v. State of Kerala – 2007 (4) KLT 890 decided by Justice R. Basant. The places of occurrence in that case were at Thrissur and Irinjalakuda in the State of Kerala.


• The accused will be entitled to set off in the Dadar case also even if that case is tried subsequently. This is because Section 428 Cr.P.C does not say that the accused should have been ordered to be detained in custody in the very same case in which he sentenced to imprisonment. What the Section postulates is only that the accused who is later on convicted and sentenced, should have undergone detention during the period of investigation or inquiry or trial of the very same case. Such detention can be the result of an order (remand order) passed in the same case or in some other case, provided that the duration of the investigation, inquiry etc. was common to both cases. However, once the accused is convicted and sentenced to imprisonment in any of those cases, set off can be given in such cases at the time of subsequently imposing a sentence of imprisonment. But the set off so given will have to expire on the date of commencement of the sentence of imprisonment awarded in the first trial because the imprisonment awarded in the first case cannot anymore be termed as detention envisaged by Section 428 Cr.P.C. (vide paragraph 9 of Atul Manubhai Parekh v. C.B.I – (2010) 1 SCC 603).

So understood, in my opinion, the view was taken by Justice  K. T. Thomas both from the High Court of Kerala initially and from the Supreme Court of India subsequently reflects the correct position in situations where the same accused person while in judicial custody faces trial in two or more cases. As a disciplined Judge of the High Court, Justice Thomas found himself bound by the verdict rendered by the highest Court of the land in Raghir Singh’s case when the same was brought to his notice. But the learned Judge did not shirk his duty or commitment to law while heading the three Judges Bench in Najakat @ Mubarak Ali.

Justice V.Ramkumar is a Former Judge, High Court of Kerala.

The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same.