Benefit Of Set Off U/Sec 428 CrPC Can Be Invoked Only If Detention Undergone By The Convict Is In The 'Same Case' : Supreme Court

The Supreme Court observed that the benefit of Section 428 CrPC can be invoked only if detention undergone by the convict during investigation, enquiry or trial is in the 'same case'.

Section 428 CrPC provides when the period of detention undergone by the accused to be set off against the sentence or imprisonment. It reads as follows : 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.

Shivinder Mohan Singh was convicted on 22 September 2022 for contempt of court and was sentenced to six months imprisonment. In his miscellanious application, he contended that he was already in the custody in connection with another case from 03.02.2020 itself when he was brought from Jail No.7, Tihar Jail, New Delhi to the Supreme Court. Therefore, he sought a clarification to the effect that the term of imprisonment of 6 (Six) months shall be deemed to have commenced from 03.02.2020 instead of 22.09.2020. Reliance was placed on Section 428 CrPC.

Referring to the provisions of Section 428 CrPC and caselaws regarding it, the bench of Justices KM Joseph and Hrishikesh Roy observed:

"As far as Section 428 of Cr.P.C. is concerned, an indispensable requirement to invoke Section 428 of Cr.P.C. is that there must be a conviction. The conviction must be followed by a sentence of imprisonment. It must be for a term and it should not be imprisonment in default of payment of fine. If these requirements exist, then the occasion opens up for applying the beneficial provisions of Section 428 of Cr.P.C. However, for it to be invoked the existence of detention undergone by the convict during investigation, enquiry or trial in the 'same case' is indispensable. If these requirements are satisfied, the convict would be entitled to the set off for the period of detention which he has undergone."

The court therefore refused his plea to treat that the custody undergone by him in connection with another case admittedly as custody undergone in the contempt of Court case. 

Case details

Vinay Prakash Singh vs Sameer Gehlaut | 2022 LiveLaw (SC) 974 | MA 1902 OF 2022 | 14 Nov 2022 | Justices K M Joseph and Hrishikesh Roy

For Applicant Ms. Meenakshi Arora, Sr. Adv. Mr. Aditya Dewan, Adv. Mr. Abhinav Agrawal, AOR Mr. Rohan Thawani, Adv.

For Non-applicant Mr. Rajiv Dutta, Sr. Adv. Mr. Amit Mishra, Adv. Ms. Devna Arora, Adv. Ms. Samridhi Hota, Adv. Mr. Varad Choudhary, Adv. Ms. Astha Ahuja, Adv. Ms. Gauri Goburdhan, Adv. Mr. Kunal Chatterji, AOR

For Respondent(s) Mr. Mahesh Agarwal, Adv. Mr. Ankur Saigal, Adv. Mr. Himanshu Satija, Adv. Mr. Nishant Rao, Adv. Ms. Mansi Taneja, Adv. Mr. E. C. Agrawala, AOR Ms. B. Vijayalakshmi Menon, AOR Mr. Vivek Jain, AOR M/S. Karanjawala & Co., AOR Mr. Hardeep Singh Anand, AOR Mr. Faisal Sherwani , AOR

Headnotes

Code of Criminal Procedure, 1973 ; Section 428 - An indispensable requirement to invoke Section 428 of Cr.P.C. is that there must be a conviction. The conviction must be followed by a sentence of imprisonment. It must be for a term and it should not be imprisonment in default of payment of fine - However, for it to be invoked the existence of detention undergone by the convict during investigation, enquiry or trial in the 'same case' is indispensable. If these requirements are satisfied, the convict would be entitled to the set off for the period of detention which he has undergone. (Para 12)

Precedent - A judgment of a Court is not to be read as the Euclid's Theorem shorn of the facts and the context in which the law has been declared. (Para 11)

Click here to Read/Download Order