ATUL MANUBHAI PAREKH v. CENTRAL BUREAU OF INVESTIGATION

Citation: [2009] 15 S.C.R. 1105

Court: Supreme Court of India

Bench: ALTAMAS KABIR, CYRIAC JOSEPH

Case summary

ATUL MANUBHAI PAREKH v. CENTRAL BUREAU OF INVESTIGATION.pdf

Judgment text

[2009] 15 (ADDL. ) S. C. R. 1105 ATUL MANUBHAI PAREKH -~ v. CENTRAL BUREAU OF INVESTIGATION (Criminal M. P. No. 13384 of 2009) IN (Criminal Appeal No. 164 of 2004) NOVEMBER 24, 2009 [ALTAMAS KABIR AND CYRIAC JOSPEH, JJ. ] Code of Criminal Procedure, 1973 - s. 428 - Benefit of set-off - For the period of detention or imprisonment, undergone by the accused in another case - Held: Period to be set-off relates only to pre-conviction detention, and not to imprisonment on conviction - In case of s. 428, question of ,. merger does not arise - Period of set-off is in respect of each ' separate case. D' The question for consideration in the present cases . i was whether a person, who has been convicted in several ~.. ~ cases and has suffered detention or imprisonment in connection therewith, would be entitled to the benefit of set-off in a separate case for the period of detention or E' imprisonment undergone by him in the other cases. Dismissing the applications, the Court HELD: 1.

The heading of Section 428 Cr. P. C. itself indicates that the period of detention undergone by the I accused is to be set-off against the sentence of imprisonment. The Section makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. It is quite clear that the period to be set-off relates only to pre conviction detention and not to imprisonment on conviction. [Para 9] [1110-G-H; 1111-A] 2. Section 428 Cr. P. C. deals with a situation, where the question of merger of sentence does not arise and the period of set-off is in respect of each separate case and the detention undergone by the accused during the :. ' investigation or trial of such case. [Para 10] (1111-D] Champa/al Punjaji Shah vs. State of Maharashtra (1982) 1 SCC 507; Raghbir Singh v. State of Haryana (1984) 4 SCC 348; Government of A. P. vs.

Anne Venkateswara Rao (1977) 3 SCC 298; Maliyakkal Abdul Azeez vs. Asstt. Collector, Kera/a and Anr. (2003) 2 SCC 439, relied on. State of Maharashtra and Anr. vs. Najakat Alia Mubarak 1 Ali (2001) 6 SCC 311, distinguished. Case Law Reference : (1982) 1 sec so1 Relied on. Para 6 (1984) 4 sec 348 Relied on. Para 8 (1977) 3 sec 298 Relied on. Para 10 ' (2003) 2 sec 439 Relied on. Para 11 ' (2001) 6 SCC. 311 Distinguished. Para 13 '-.. CRIMINAL APPELLATE JURISDICTION : CRLMP No. ~ 13384 of 2009 in Criminal Appeal No. 164 of 2004. From the Judgment & Order dated 04. 12. 2003 of the Special Court constituted under the Special Court (Trial of Offences Relating to Transaction in Securities) Act, 1992 at Bombay in Case No. 2 of 1993. WITH CRLMP. No. 13382 of 2009 in Crl. A No. 905 of 2005; CRLMP. No. 13381 of 2009 in Crl. A No. 925 of 2005; and ' CRLMP. No. 17357 of 2009 in Crl. A No. 90 of 2004. P. P. Malhotra, ASG, Kamini Jaiswal, I. H. Syed, Varinder ..

, Kumar Sharma, Abhimanue Shrestha, P. Parmeswaran, Mohan Parasaran, P. K. Dey, AK. Sharan, T. A Khan, Subhash Kaushik, R. K. Tanwal, AK. Sharma, for the appearing parties. The Judgment of the Court was delivered by ~ ALTAMAS KABIR, J. 1. Crl. M. P. No. 13384 of 2009 has been filed in Criminal Appeal No. 164 of 2004, which was disposed of by this Court by judgment and order dated 7th August, 2009, upholding the conviction of the appellant under Section 120-B and sentencing him to undergo rigorous imprisonment for a period of 15 days and to pay a fine of Rs. 10,000/-, in default to undergo simple imprisonment for a further period of 15 days. By the same order, the appellant was also granted the benefit of set-off for the period of detention he had already undergone under Section 428 Cr. P. C.

This application has been filed on behalf of the appellant, Atul Manubhai Parekh, for a direction that he be entitled to set-off of 30 days in the present case against the detention of 15 days already undergone by him. 2. The short point involved in this application is whether a person, who has been convicted in several cases and has suffered detention or imprisonment in connection therewith, would be entitled to the benefit of set-off in a separate case for the period of detention or imprisonment undergone by him in the other cases. 3. Ms. Kamini Jaiswal, learned Advocate appearing for the \ appellant, submitted that the right of a convict to be allowed set- . , off in one case in respect of detention or imprisonment undergone by him in other cases, fell for the consideration of this Court in State of Maharashtra &Anr. vs. Najakat Alia Mubarak Ali [(2001) 6 SCC 311], wherein three Judges of this Court had occasion to consider the provisions of Section 428 Cr. P. C.

, and it was the majority view that the period of imprisonment undergone by an accused as an undertrial during investigation, enquiry or trial of a particular case, irrespective of whether it was in connection with that very case or other cases, could be setoff against the sentence of imprisonment imposed on conviction in that particular case. Their Lordships held that the words "same case" used in Section 428 do not suggest that set-off would be available only if the period undergone as an undertrial prisoner is in connection with the same case in which he was later convicted and sentenced to a term of imprisonment. According to Their Lordships, the said expression merely denoted the presentence period of detention undergone by an a case, which could not have been the intention of the legislature while introducing Section 428 in the Code in 1973. The reference made in the several decisions cited before us to Section 427 Cr. P. C.

appears to be a little out of focus since the sar:ne deals with several sentences passed in the same case against the same accused on different counts which are directed to run concurrently. Section 428 Cr. P. C. deals with a different situation, . , where the question of merger of sentence does not arise and >' the period of set-off is in respect of each separate case and the detention undergone by the accused during the investigation or trial of such case. The philosophy of Section 428 Cr. P. C. has been very aptly commented upon by this Court in Government of A. P. vs. Anne Venkateswara Rao (1977) 3 SCC 298, in the following terms : "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. " ~ 11. In fact, a similar situation arose in the case of Maliyakkal Abdul Azeez vs. Asstt. Collector, Kera/a &Anr.

[(2003) 2 SCC 439], wherein it was sought to be argued on behalf of the petitioner that he was entitled to the benefit of set-off under Section 428 Cr. P. C. for the period of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. While deciding the said case, the Hon'ble Judges observed that Section 428 Cr. P. C. had been brought on ' the statute book for the first time in 1973 and was incorporated in the light of the proposal put forward by the Joint Select Committee which noticed that in many cases the accused persons were kept in prison for a very long period as undertrial prisoners and in some cases the period spent in jail by undertrial ,1~ prisoners far exceeded the sentence of imprisonment ultimately awarded. It was also noticed by the Select Committee with concern that a large number of prisoners in the overcrowded jails of the country were undertrial prisoners and that Section 428 .. ' Cr. P. C.

was introduced to remedy the unsatisfactory state of affairs by providing for setting-off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on the accused. ' • 12. The decision in the case of Maliyakkal Abdul Azeez ~ t (supra) was rendered after the decision in Najakat Alia's case (supra) and we respectfully follow the same as it reiterates the / law laid down in the earlier cases such as in the case of Anne Venkateswara Rao (supra), Raghubir Singh (supra) and Champa/a/ Punjaji Shah (supra). 13. The facts on which the decision was rendered in Najakat 'I"" Alia Mubarak Ali's case are distinguishable from the facts of this y .... case. In the said case, the convict was undergoing imprisonment \ in two cases in which he had been convicted and he claimed that he was entitled to set-off in respect of both the cases.

This Court drawing inspiration from Section 427 on the concurrent running ofsentences, held that the petitioner was entitled to set-off in both cases in view of the doctrine of merger of sentences when directed to run co. ncurrently in a particular case where conviction is on many counts. x-' 14. The application filed by Atul Manubhai Parekh, being + Criminal Misc. Petition No. 13384 of 2009, in the disposed of Criminal Appeal No. 164 of 2004, and the connectAd applications being Criminal Misc. Petition No. 13382 of 2009 in Criminal Appeal No. 905 of 2005, Crim:nal Misc. ~etition No. 13381 of 2009 in Criminal Appeal No. 925 of 2005 and Criminal Misc. Peti! _ion No. 17357 of 2009 in Criminal Appeal No. 90 of 2004, are, accordingly, dismissed. K. K. T. Applications dismissed. ~· •