PETITIONER:
GOVT. OF ANDHRA PRADESH & ANR. ETC.
Vs.
RESPONDENT:
ANNE VENKATESWARE ETC. ETC.
DATE OF JUDGMENT17/02/1977
BENCH:
GUPTA, A.C.
BHAGWATI, P.N.
CITATION:
1977 AIR 1096 1977 SCR (3) 7
1977 SCC (3) 298
ACT
Code of Criminal Procedure, 1973, ss. 428 & 418--S. 428
whether equates undertrial detention or remand detention
with imprisonment on conviction for remission
purposes.--Whether allows period of preventive detention to
be set off against term of imprisonment on
conviction--S. 418 whether includes service of warrant on
accused already in detention.
HEADNOTE
The cross appeals arose from two writ petitions filed by
A.V. Rao and N. V. Krishnaiah in the High Court. A.V. Rao’s
case was that while he was already in preventive detention.
on December 18. 1969. a First Information Report was lodged
against him in connection with some Sessions cases. Some of
the co-accused in’ these cases were produced before the
Magistrate on December 19, 1969 for remand, but Rao was
produced before him only in mid-April, 1970 after his
release from preventive detention. The accused in the
Sessions cases were thereafter convicted and sentenced, and
Rao. filed a writ petition asking for an order on the State
Government to set off u/s 428 Cr.P.C. 1973, the time between
December 19, 1969 and April 13, 1970, against his term of
imprisonment, treating the said period as the period of
detention undergone by him as an undertrial prisoner, and
also to take the same into account, for the purpose of
remission of his sentence under the Prisons Act. Rao con-
tended that he could have been produced before the
Magistrate for remand on December 19, 1969. The State
Government contended that Rao could not be produced before
the Magistrate for remand until the period of preventive
detention was over.
In the case of Krishnaiah, he was in detention under the
MISA, when his appeal against conviction in a criminal case
was dismissed by the High Court, and a warrant was issued
against him on December 1, 1975, but was served on him only
on December 30, 1975, when the order against him under the
MISA was revoked.
The High Court rejected the petitioners’ contention
regarding set off under section 428 Cr.P.C. but accepted
their contention regarding the benefit of remission.
Allowing the appeals by the State, and partly allowing the
appeals by the original writ petitioners, the Court,
HELD: (1) Section 428 of the Cr. P.C., 1973 only pro-
vides that the period of detention of an accused as under-
trial prisoner shall be set off against the term of impris-
onment imposed on him on conviction. It does not equate an
"undertrial detention or remand detention with imprisonment
on conviction" or do away with the difference in the two
kinds of detention and put them on the .same footing for all
purposes. [11B-C]
G.V. Godse v. State of Maharashtra, [1961] 3 SCR 440; 446,
referred to.
(2) S. 428 expressly says that the "period of detention"
mentioned, refers to the detention during the investigation,
enquiry or trial in connection with the "same case" in which
the accused person has been convicted. The period during
which the writ petitioners were in preventive detention
cannot be set off under section 428 against the term of
imprisonment imposed on them. [11G, 12--A-B]
(3) Section 418 does not exclude a case where the war-
rant concerns an accused who is already in detention. We
have not been referred to any provision either in the Cr.
P.C. or in the MISA which requires the service of the war-
rant to be delayed until after the period of preventive
detention is over. There is no bar to the preventive and
punitive detention continuing simultaneously. [13A-B, C]
2--240SCI/77
8
Haradhan Saha & Anr. v. State of West Bengal & Ors.
[1975] 1 SCR 778, referred to.
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
418-419 and 484-485/76.
(From the Judgment and Order dated 6-7-1976 of the
Andhra Pradesh High Court in Writ Petition Nos. 1865,
1870 of 1976 respectively.)
P. Parmeswara Rao, G. Narayana Rao and A. K. Ganguli,
for the appellants in Crl. Appeals Nos. 418-419/76 and
respondents in Crl. Appeals Nos. 484-485/76.
R.K. Jain, fox the appellant in Crl. A. No. 484/76 and
respondent in Crl. A. No. 418/76.
S. Lakshminarasu, for the appellant in Crl. A. No.
485/76 and for respondent in Crl. A. No. 419/76.
The Judgment of the Court was delivered by
GUPTA, J.--These are a group of four appeals from a
common Judgment of the Andhra Pradesh High Court partly
allowing two writ petitions, writ petition No. 1865 of 1976
filed by A.V. Rao, and writ petition No. 1870 of 1976 made
by N.V. Krishnaiah. The High Court rejected the petition-
ers’ prayer for setting off under section 428 of the Code of
Criminal Procedure, 1973 the periods during which they were
in preventive detention against the term of imprisonment
imposed on them on their conviction in a sessions trial, but
accepted their contention that they were entitled to the
benefit of the remission system under the Prisons Act, 1894
for the period during which they were in jail as under-
trial prisoners before their conviction: Criminal Ap-
peals Nos. 418 and 419 of 1976 by State of Andhra Pradesh
are directed against the part of the High Court’s Judgment
granting the writ petitioners the benefit of the remission
system under the Prisons Act treating for this purpose the
period of undertrial detention on the ’same footing as a
term of imprisonment on conviction. Appeal No. 418 arises
out of writ petition No. 1865 of 1976 filed by A.V. Rao and
Appeal No. 419 is from writ petition No. 1870 of 1976 made
by N.V. Krishnaiah. The writ petitioners have also filed
appeals against the part of the. Judgment disallowing their
prayer for set off under section 428 of the Code of Criminal
Procedure. Criminal Appeals Nos. 484 and 485 of 1976 are by
A.V. Rao and N.V. Krishnaiah respectively. All the four
appeals are on certificate of fitness granted by the High
Court.
The relevant facts are as follows. A.V. Rao, appel-
lant in appeal 484 of 1976 and respondent in appeal
418 of 1976, was in detention under the Preventive
Detention Act when on December 18, 1969 a first
information report was filed naming him among others as an
accused in a case involving offences under section 121A and
120B read with section 395, and section 120B read with
section 447 of the Indian Penal Code, ’which gave rise to
sessions cases Nos. 106 of 1970 and 6 of 1971 on the of the
Additional Sessions Judge, Hyderabad. The detention order
under
9
the preventive detention law was revoked by the State Gov-
ernment on April 11, 1970 and Rao was released on the next
day, April 12. He was then produced before the magistrate in
connection with the sessions cases on April 13, 1970;
there is some doubt about this date because the record at
some places mentions the date as April 18, but the
discrepancy is not of any significance on the questions
arising for decision in these appeals. On April 10, 1972
Rao. was convicted along with others and sentenced to
various terms of imprisonment for the offences charged
against him; the maximum sentence was rigorous imprisonment
for four years. The sentences were directed to run con-
currently. His appeal against the order of conviction was.
dismissed by the High Court on November 28, 1975. He filed
writ petition 1865 of 1976 asking for an order on the
Government of Andhra Pradesh to set off under section 428
of the Code of Criminal Procedure, 1973 the time between
December 19, 1969 and April 13, 1970 against his term of
imprisonment treating the said period as the period of
detention undergone by him as undertrial prisoner, and to
take into account the entire period during which he was in
detention for the purpose of remission of his sentence under
the Prisons Act. The petitioner further claimed that had he
been free at the time when the F.I.R. was lodged on Decem-
ber 18, 1969, he would have surrendered immediately and
would have been produced before the court for remand on
the next day as some of the co-accused in the case had been
it was submitted that if the "concerned authority" who
could but did not "take immediate and necessary steps to
produce the petitioner" before the magistrate, the petition-
er should not be made to suffer.
The facts of N.V. Krishnaiah"s case are similar. Krish-
naiah, appellant in appeal No. 485 and respondent in appeal
No. 419, was also an accused in the sessions cases 106 of
1970 and 6 of 1971 with A.V. Rao and others. lie however
was not in detention when the F.I.R. was lodged. He was
arrested in connection with the sessions cases on December
19, 1969 and was in detention on remand from December 21,
1969 to April 9, 1972. He was also convicted by the Addi-
tional Sessions Judge on April 10, 1972 and the maximum
sentence in his case too was rigorous imprisonment for four
years. He also preferred an appeal to the High Court against
the order of conviction. The High Court granted him bail
and he was released on bail on April 29, 1972. He was
arrested under the Maintenance of Internal Security Act,
1971 on June 26, 1975. The High Court dismissed the appeal
on November 28, 1975. A warrant of arrest issued by the
Additional’Sessions Judge on December 1, 1975 was served on
him on December 30, 1975, on which date the detention order
under the Maintenance of Internal Security Act was also
revoked. On these Krishnaiah in his writ petition sought an
order on the State of Andhra Pradesh to treat the "period
from June 26 1975 to November 28, 1975 as remand period" and
to set off under section 428 of the Code of Criminal Proce-
dure this period during which he was under preventive deten-
tion, against the term of imprisonment imposed on him on
conviction in the sessions cases. It was also contended
that the warrant issued by the Additional Sessions judge on
December 1, 1975 should have been served on him immediately,
10
that it was no fault of his that "the concerned authority"
chose to serve the warrant on December 30, 1975, and that
during this period of one month he should be deemed to have
been serving the sentence imposed on him., A further prayer
was made that the entire period during which he was under
detention be taken into account for remission of his
sentence under the Prisons Act,
The question for consideration in appeals 418 and 419 of
1976, preferred by the State of Andhra Pradesh is, whether
the period of detention undergone by the two writ petition-
ers in connection with the sessions cases before their
conviction could be treated as a part of the period of
imprisonment on conviction so as to entitle them to remis-
sion of their sentences under the Prisons Act. The Prisons
Act, as its preamble shows., is an Act to "amend the law
relating to prisons" and to provide rules for the regula-
tion of such prisons Section 3(5) of the Act defines
"remission system" as the "rules for the time being in force
regulating the award of marks to, and the consequent short-
ening of sentences of, prisoners in jail". Section 59 of
the Prisons Act provides that the State Government may make
rules consistent with the Act in respect of the various
matters specified in clauses (1) to (28) of the section;
under clause (5) of section 59 the State Government is
authorised to make rules "for the award of marks and the
shortening of sentences". In their writ petitions both the
petitioners speak of remission under the "prison rules"
without specifying any rule under which relief is sought.The
High Court viewed the question in this way:
Sec. 428 Crl. P.C. clearly ordains
that the remand
detention shall be set off against the term of
imprisonment imposed on the accused person on
conviction. The section further clarifies
that 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. In other
words, the statute equates the under trial
detention or remand detention with imprison-
ment on conviction. The provision, in so many
words, treats the remand’ detention as part of
the period of imprisonment after conviction.
If remissions are given for imprisonment
after conviction, there is no plausible or
understandable reason., why it should be
denied to the remand period when the statute
equates both of them."
The High Court accordingly held that all the
remissions that are available or permissible
to the two petitioners in regard to imprison-
ment on conviction are available to them oven
in respect of the remand period and directed
the authorities "to work out these remis-
sion and give the benefit to the petitioners".
We do not consider the view taken by the
High Court on this point as correct. Section
428 of the Code of Criminal Procedure. 1973 is
in these terms:
Period of detention undergone by the
accused to be set off against the sentence of
imprisonment.
"428. Where an accused person has, on
conviction, been sentenced to imprisonment for
a term, the period of deten-
11
tion, 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 imprison-
ment imposed on him on such conviction, and
the liability of such person to undergo im-
prisonment on such conviction shall be re-
stricted to the remainder, if any, of the term
of imprisonment imposed on him."
Section 428 provides that the period of detention of an
accused as an undertrial prisoner shall be set off against
the term of imprisonment imposed on him on conviction. The
section only provides for a "set off", it does not equate an
"undertrial detention or remand detention with imprisonment
on conviction". The provision as to set off expresses a
legislative policy, this does not mean that it does away
with the difference in the two kinds of detention and puts
them on the same footing for all purposes. The basis of the
High Court’s decision does not, therefore, seem to be right.
Apart from that, the Prisons Act does not confer any
right upon the prisoner to claim remission. It was pointed
out in G.V. Godse v. State of Maharashtra(1) that" ....
the Prisons Act does not confer on any authority a power to
commute or remit sentences, it provides only for the regula-
tion of prisons and for the treatment of prisoners confined
therein. Section 59 of the Prisons Act confers a power on
the State Government to make rules, inter alia, for rewards
for good conduct. Therefore, the rules made under the Act
should be construed within the scope of the ambit of the
Act." It was explained that the rules under the Prisons Act
do not substitute a lesser sentence for a sentence awarded
by the court. The rules enable a prisoner to earn remis-
sions but, as held in G.V. Godse’s case, the question of
remission is exclusively within the province of the appro-
priate Government. If the Government decides to remit the
punishment to which a person has been sentenced, the remis-
sion may be worked out according .to the rules framed under
the Prisons Act. This being the position, appeals 418 and
419 of 1976 must succeed.
The remaining two appeals, 4.84 and 485 of 1976, preferred
respectively by Rao and Krishnaiah, may now be taken up for
consideration. The claim in both these appeals is that the
period of detention undergone by each appellant under the
preventive detention law should be set off under section 428
of the Code Criminal Procedure against the term of imprison-
ment imposed on them on their conviction in the aforesaid
sessions cases. The argument is that the ’expression
"period of detention" in section 428 includes detention
under the Preventive Detention Act or the Maintenance of
Internal Security Act. 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 imprison-
ment
(1) [1961] 3 S.C.R. 440, 446.
12
imposed on the accused on conviction must be during the
investigation, enquiry or trial in connection with the "same
ease" in which he has been convicted. We therefore agree
with the High Court that the period during which the writ
petitioners were in preventive detention cannot be set off
under section 428 against the term of imprisonment imposed
on them.
There is however substance in the other point raised by
the writ petitioners regarding the computation of the period
during which the writ petitioner in each ease should be held
to have suffered imprisonment on conviction. In A.V. Rao’s
case (W.P. 1865/76), he was already in detention under the
2Preventive Detention Act when the First Information Report
was lodged on December 18, 1969 in connection with the
sessions eases. Some of the co-accused in these cases were
arrested and produced before the magistrate for remand on
December 19, 1969, but Rao was produced before the magis-
trate sometime in April, 1970 after he was released from
preventive detention. It was argued that he also could have
been produced before the magistrate for remand on December
19, 1970. On behalf of the respondent, State of Andhra
Pradesh, it was contended that as’ Rao was already in deten-
tion under the Preventive Detention Act, it was not possible
to produce him before the magistrate for remand until the
period of preventive detention was over, we do not find any
justification in law for the position taken up by the State.
Rao being already in custody, the authorities could have
easily produced him before the magistrate when the First
Information Report was lodged. Nothing has been pointed out
to us either in the preventive detention law or the Code of
Criminal Procedure which can be said to be a bar to such a
course. That being so we think that the claim that the
entire period from December 19, .1969, when many of the co-
accused were produced before the magistrate to April 18,
1970 should be treated as part of the period during which
Rao was under detention as an under trial prisoner, must be
accepted as valid. A.V. Rao’s Appeal No. 484 of 1976 is
allowed to this extent.
In the case of N.V. Krishnaiah, the Additional Sessions
Judge, Hyderabad, issued a warrant on December 1, 1975 after
his appeal against conviction was dismissed by the High
Court on November 28, 1975. The warrant, however, was.
served on him only on December 30, 1975 on which date the
order under maintenance of Internal Security Act was
revoked. It is claimed’ that the warrant could have been
served immediately on that dismissal Of the appeal on
November 28, 1975 and the accused was not responsible if the
authority concerned chose to serve the warrant on him
on December 30, 1975. In this case also, the argument on
behalf of the State of Andhra Pradesh is that it was not
possible to forward Krishnaiah to jail consequent on his
conviction in the session cases until the period of his
detention under the Maintenance of Internal Security Act was
over. We do not see why that should be so. Section 418
requires the court passing the sentence .to forthwith for-
ward a warrant to the jail or other place in which he
(accused) is, or is to be, confined, and, unless the ,ac-
cused is already confined in such jail or other
13
place, shall forward him to such jail or other place, with
the warrant". Section 418 thus does not exclude a case where
the warrant concerns an accused who is already in detention
On behalf of the State it was sought to be argued that if
the warrant was served on Krishnaiah immediately after his
conviction was upheld by the High Court in appeal, the
position would have been anomalous, because then he would
have been in detention both under the preventive detention
law and as a convicted accused in a criminal case. We have
not been referred to any provision either in the Code of
Criminal Procedure or in the Maintenance of Internal Securi-
ty Act which requires the service of the warrant to be
delayed until after the period of preventive detention is
over. As regards the alleged anomaly of a man having to
suffer two kinds of detention at the same time, one preven-
tive and the other punitive, we do not find this to be a
valid objection. The position is not different from the
case where a man is sentenced on different counts to a term
of rigorous imprisonment and another term of simple impris-
onment, and the sentences are directed to run concurrently.
Counsel for the State referred us to the decision in Harad-
han Saha and another v. The State of West Bengal &
others,(1) in support of his contention. In our opinion
this case does not help him at all. What was held in this
case was, inter alia that the nature of preventive detention
is entirely different from punitive detention, and there is
no bar to a man being detained under the preventive deten-
tion law when a criminal proceeding for the offences on
which the preventive detention is based is pending. If that
be so, there can be no bar to the preventive and punitive
detentions continuing simultaneously. We therefore allow
appeal No. 485 of 1976 to the extent that Krishnaiah should
be taken to have serving the sentence imposed on him from
December 1, 1975.
In the result the criminal appeals Nos. 418 and 419 of
1976 by the State of Andhra Pradesh are allowed, and the
appeals Nos. 484 and 485 of 1976 preferred respectively by
A.V. Rao and N.V. Krishnaiah are allowed to the extent
indicated above.
M.R. Appeals al-
lowed.
(1) [1975] 1 S.C.R, 778.
14