Section 428 CrPC- "Set Off" Of Pre-Conviction Detention Is Permissible Even For Life Convicts: Madras High Court

The Madras High Court on Monday ruled that 'set off" of pre-conviction detention under Section 428 of Code of criminal Procedure  is permissible even for a life convict."

The High Court has held that period of pre-conviction detention served by a life convict during the investigation, inquiry, or trial must be allowed to be set off against the term of imprisonment imposed on him on such conviction.

A Bench comprising Justice M.M. Sundresh and Justice R. N Manjula was adjudicating upon a bunch of habeas corpus petitions seeking the premature release of life convicts pursuant to a Madras government order dated February 1, 2018.

Background:

In the instant case, the accused was found guilty of the offences under Sections 302 (murder) and 392 (robbery) of the IPC by the Sessions Court and accordingly sentenced to life imprisonment and rigorous imprisonment for 10 years respectively.

On February 1, 2018 the Government of Madras had issued an order permitting the premature release of life convicts to commemorate the 100th Birth Anniversary of former Chief Minister of Tamil Nadu Dr.M.G.Ramachandran. Only life convicts who have completed 10 years of actual imprisonment as on February 2, 2018 were eligible for the concession prescribed in the order.

Accordingly, the wife of the accused had filed a petition before a Single judge bench of the High Court seeking the inclusion of her husband's name in the list of prisoners eligible for premature release under the aforementioned government order. However, such a request was declined by the High Court vide order dated January 7, 2019 on the ground that the accused had completed only 9 years and 24 days of actual imprisonment as on 25.02.2018 instead of the mandatory requirement of 10 years completion.

Subsequently, a habeas corpus petition was again filed before a Single judge bench of the High Court and vide order dated November 15, 2019 the High Court permitted the relief sought by the petitioner's wife. This order of the Single judge bench is under appeal in the instant case.

Observations:

In order to examine the judicial interpretation of Section 428 of the CrPC, the Court referred to the Apex Court decision in Bhagirath & Another v. Delhi Administration wherein it was affirmed that Section 428 of the CrPC is applicable even to cases where the accused has been sentenced to life imprisonment. In order to make such a determination, the Supreme Court had taken note of the fact that a large number of cases in which the accused suffers prolonged under-trial detention are cases punishable with life imprisonment.

"To deny the benefit of section 428 to them is to withdraw the application of a benevolent provision from a large majority of cases in which such benefit would be needed and justified", the Supreme Court had observed.

Further, the Court also placed reliance on the dictum promulgated in the Madras High Court judgment of Kumar v. State of Tamil Nadu which upheld the proposition that life convicts can reap the benefit of Section 428 of the CrPC and accordingly jail authorities are mandated to furnish details of pre-conviction detention so as to enable the premature release of such convicts.

Giving due credence to the aforementioned judgements the Court ruled,

"Thus, in the light of the aforesaid pronouncements and taking note of the underlying object enshrined under Section 428 of the Code of Criminal Procedure, 1973, we have no hesitation to hold that 'set off ' is permissible even for a life convict."

Accordingly, the Court disposed of the appeal by directing the lower court to seek reports from the Probation Officer and other prison authorities in order to facilitate the release of the concerned life convict.

Case Title: Home Secretary v. A.Palaniswamy @ Palaniappan

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