{"id":197965,"date":"2001-05-09T00:00:00","date_gmt":"2001-05-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-anr-vs-najakat-alia-mubarak-ali-on-9-may-2001"},"modified":"2017-07-23T20:00:28","modified_gmt":"2017-07-23T14:30:28","slug":"state-of-maharashtra-anr-vs-najakat-alia-mubarak-ali-on-9-may-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-anr-vs-najakat-alia-mubarak-ali-on-9-may-2001","title":{"rendered":"State Of Maharashtra & Anr vs Najakat Alia Mubarak Ali on 9 May, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Maharashtra & Anr vs Najakat Alia Mubarak Ali on 9 May, 2001<\/div>\n
Author: Sethi<\/div>\n
Bench: R.P. Sethi<\/div>\n
           CASE NO.:\nAppeal (crl.) 617  of  2001\n\n\n\nPETITIONER:\nSTATE OF MAHARASHTRA & ANR.\n\n\tVs.\n\nRESPONDENT:\nNAJAKAT ALIA MUBARAK ALI\n\nDATE OF JUDGMENT:\t09\/05\/2001\n\nBENCH:\nR.P. Sethi\n\n\n\n\nJUDGMENT:\n<\/pre>\n
SETHI,J.\n<\/p>\n
L…I…T…….T…….T…….T…….T…….T…….T..J<\/p>\n
    Despite  perusing the lucid judgment of Thomas, J.\tfrom
\ndifferent angles and being aware of its far reaching effects
\nin  the\t country,  so far as the under trial  prisoners\t are
\nconcerned,  I  could not persuade myself to agree  with\t the
\ninterpretation given regarding the scope and implications of
\nSection\t 428 of the Code of Criminal Procedure, (hereinafter
\nreferred to as ‘the Code’).\n<\/p>\n
    Section  428 of the Code was brought on the statute book
\nfor  the  first\t time in 1973.\tIt was incorporated  in\t the
\nlight  of  the\tproposal  put forward by  the  Joint  Select
\nCommittee  appointed  for that purpose.\t The  Committee\t had
\nnoted,\twith  distress, that in many cases  accused  persons
\nwere  kept  in\tprison for very long period  as\t under-trial
\nprisoners  and\tin some cases the sentence of  imprisonment,
\nultimately  awarded,  was a fraction of the period spent  in
\njail  as  under-trial  prisoners.   Despite  the  fact\tthat
\nsometimes  courts had been taking into account the period of
\ndetention  undergone as under-trial prisoners while  passing
\nsentence  and  occasionally  the  sentence  of\timprisonment
\nrestricted  to\tthe period already undergone.  But that\t was
\nnot  always  the case as in many cases the  accused  persons
\nwere made to suffer jail life for a period out of proportion
\nto  the\t gravity of offence or even the punishment  provided
\nunder  the statute.  The Committee noted with concern that a
\nlarge  number  of persons in the over-crowded jails  of\t the
\ncountry\t were under-trial prisoners.  The Section was sought
\nto  remedy  the\t said  unsatisfactory state  of\t affairs  by
\nproviding  for\tsetting\t off the period of detention  as  an
\nunder-trial  prisoners against the sentence of\timprisonment
\nimposed on the accused.\n<\/p>\n
    The purpose of incorporating Section 428 was that period
\nof  detention  undergone  by the accused be  given  set\t off
\nagainst the sentence of imprisonment imposed upon him in the
\nsame  case.   Before  the  incorporation  of  the  aforesaid
\nsection,  the  accused, upon conviction, had to undergo\t the
\nawarded\t sentence of imprisonment notwithstanding the length
\nof  period  spent by him in detention during  investigation,
\ninquiry or trial of the case.\n<\/p>\n
    Section 428 of the Code is preceded by Section 427 which
\nprovides that when any person already undergoing sentence of@@
\n\t JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\nimprisonment  is  sentenced  on a subsequent  conviction  of@@
\nJJJJJJJJJJJJJJJJ
\nimprisonment,  such  imprisonment  shall   commence  at\t the
\nexpiration  of\tthe  commencement  to\twhich  he  has\tbeen
\npreviously  sentenced,\tunless\tthe court directs  that\t the
\nsubsequent  sentence  shall  run   concurrently\t with\tsuch
\nprevious  sentence.   (underlining supplied) Section 427  of
\nthe  Code  thus\t authorises  a court of law  to\t direct\t the
\nsentence  awarded  by  it  to  run  concurrently,  obviously
\nkeeping\t in  view the facts and circumstances pertaining  to
\nthe   case   or\t  the\taccused.   His\t detention   pending
\ninvestigation,\tinquiry and trial in that case or some other
\ncases  being  relevant\tconsideration  while  directing\t the
\nsentences  to  run consecutively or concurrently.   A  plain
\nreading\t of Section 428 of the Code makes it clear that\t the
\nperiod\tof detention which the section permits to be set off
\nagainst\t the  term of imprisonment, imposed on\tthe  accused
\nupon  conviction, must be during the investigation,  inquiry
\nor  trial  in connection with the same case in which he\t has
\nbeen  convicted.   Dealing with the nature of detention\t for
\nthe  purposes of the section, this Court in Govt.  of Andhra
\nPradesh\t & Anr.\t v.  Anne Venkateswara Rao,<\/a> etc.  [AIR\t1977
\nSC  1096  = (1977) 3 SCC 298] held:  “Section  428  provides
\nthat  the period of detention of an accused as an undertrial
\nprisoner  shall be set off against the term of\timprisonment
\nimposed on him on conviction.  The section only provides for
\na  “set off”, it does not equate an “undertrial detention or
\nremand\tdetention  with\t imprisonment on  conviction”.\t The
\nprovision  as  to  set off expresses a\tlegislative  policy;
\nthis  does not mean that it does away with the difference in
\nthe two kinds of detention and puts them on the same footing
\nfor all purposes.”\n<\/p>\n
    In\tChampalal Poonjaji Shah v.  State of Maharashtra<\/a>[AIR
\n1982  SC  791], where the petitioner was shown to have\tbeen@@
\n\t  JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\ndetained  firstly  under  the provisions of MISA  and  later@@
\nJJJJJJJJJJJJJJJJJ
\nunder  the provisions of COFEPOSA and after he was convicted
\nby a Magistrate and his conviction was set aside by the High
\nCourt, the State filed an appeal by special leave, which was
\nallowed\t by  this Court on August 12, 1981 (reported in\t AIR
\n1981  SC  1675) by setting aside the Judgment  of  acquittal
\npassed\tby  the High Court and restoring that of  the  trial
\nmagistrate  convicting the accused under different heads  of
\ncharges\t and  sentencing  him  to  suffer  imprisonment\t for
\nvarious\t terms ranging from two years to four years.   Later
\nin  the review petition filed, it was submitted on behalf of
\nthe accused that the total of the three periods of detention
\nshould be set off against the imprisonment imposed upon him.
\nRejecting the contention, the Court held:\n<\/p>\n
    “We\t are  unable  to agree with the submission  of\tShri
\nJethmalani.   In the very case cited by the learned counsel,
\nthe  Court  negatived  the contention  that  the  expression
\n‘period\t of detention’ in Sec.428 Code of Criminal Procedure
\nincluded the detention under the Prevention Detention Act or
\nthe  Maintenance of Internal Security Act.  It was  observed
\n(para 7):\n<\/p>\n
    “It\t is  true that the section speaks of the  period  of
\ndetention  undergone by an accused person, but it  expressly
\nsays  that  the detention mentioned refers to the  detention
\nduring\tthe  investigation, enquiry or trial of the case  in
\nwhich  the  accused person has been convicted.\tThe  section
\nmakes  it clear that the period of detention which it allows
\nto  be\tset off against the term of imprisonment imposed  on
\nthe  accused on conviction must be during the investigation,
\nenquiry or trial in connection with the ‘same case’ in which
\nhe  has\t been convicted.  We therefore agree with  the\tHigh
\nCourt that the period during which the Writ Petitioners were
\nin  preventive\tdetention  cannot  be set  off\tunder  S.428
\nagainst the term of imprisonment imposed on them”\n<\/p>\n
    After   holding  that  the\t period\t during\t which\t the
\npetitioners  therein were in preventive detention could\t not
\nbe  ‘set  off’ under Section 428 Code of Criminal  Procedure
\nagainst\t the term of imprisonment imposed on them, the Court
\nwent  on  to  consider whether the period during  which\t the
\npetitioners  were  in  preventive detention  could  for\t any
\nreason\tbe considered as period during which the petitioners
\nwere  in  detention  as under-trial prisoners  or  prisoners
\nserving\t out  a\t sentence  on conviction.  In  the  case  of
\nprisoner  A.V.\t Rao,  the  Court   held  that\tthe   period
\ncommencing  from  the date when he would have normally\tbeen
\narrested pursuant to the First Information Report registered
\nagainst\t him should be reckoned as period of detention as an
\nunder-trial  prisoner.\t In  the case  of  another  prisoner
\nKrishnaiah  it was held that the period during which he\t was
\nin  preventive\tdetention subsequent to the  conviction\t and
\nsentence  imposed  upon him should be treated  as  detention
\npursuant  to conviction and sentence.  The case before us is
\naltogether  different.\tThe petitioner had been acquitted by
\nthe  High  Court before any of the orders of detention\twere
\nmade against him.  There can be no question of the detention
\nbeing  considered as detention pursuant to conviction;\t nor
\ncan  the detention be treated as that of an undertrial.\t  It
\nis  only  in  circumstances where the  prisoner\t would\thave
\nunquestionably\tbeen  in  detention  in\t connection  with  a
\ncriminal  case if he had not been preventively detained, his
\npreventive  detention  might be reckoned as detention as  an
\nundertrial prisoner or detention pursuant to conviction, for
\nthe purposes of S.428 Criminal P.C.”\n<\/p>\n
    A  perusal\tof the section unambiguously indicates\tthat
\nonly  such accused is entitled to its benefit of that period
\nof   detention\t which\t he   has   undergone\tduring\t the
\ninvestigation,\tenquiry or trial of the same case.  It\tdoes
\nnot  contemplate of the benefit of set-off of the period  of
\ndetention  during  investigation,  inquiry or trial  in\t any
\nother  case.   The  purpose and object of  the\tsection,  as
\npointed\t out  by  Brother Thomas,J., is aimed  at  providing
\namelioration  to  a prisoner in a case where he has been  in
\ndetention  for no fault of his.\t The section, however,\tdoes
\nnot intend to give any benefit or bonus to an accused guilty
\nof  commission of more than one crime by treating the period
\nof  detention during investigation, inquiry and trial in one
\ncase as that period in the other cases also for the purposes
\nof  set-off  in the sentence.  Such an entitlement  requires
\nthe  judicial  determination which can be adjudicated  by  a
\ncourt  awarding the sentence in exercise of its powers under
\nSection 427 of the Code.  The words “period of detention, if
\nany,  undergone by him during the investigation, inquiry  or
\ntrial  of  the\tsame  case” are important  to  indicate\t the
\nparamount  concern  and\t intention  of\tthe  legislature  to
\nprotect\t the  interests of under-trial prisoners  by  giving
\nthem  the  set-off  of that period in “that  case”,  at\t the
\nconclusion  of\tthe trial.  The Section makes it clear\tthat
\nthe  period  of\t detention  which it allows to\tbe  set\t off
\nagainst\t the term of imprisonment imposed on the accused, on
\nconviction,  must  be during the investigation,\t inquiry  or
\ntrial  in connection with the same case in which he has been
\nconvicted.\n<\/p>\n
    By introducing the provision of set off, the legislature
\nintended to mitigate, to a great extent, the hardship caused@@
\n\t JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\nto  the\t accused persons by reason of their being unable  to@@
\nJJJJJJJJJJJJJJJJ
\ncome   out  on\tbail  during   the  trial   period.    While
\ninterpreting  Section 428 of the Code, the underlying object
\nof the Section cannot be lost sight of.\t Any set off claimed
\nunder  Section 428 has necessarily to be within the terms of
\nthe  Section and not beyond it.\t No accused person can claim
\nthat  irrespective of the terms of Section 428 of the  Code,
\nhe  is entitled to the benefit of set-off in each and  every
\ncase.\tA  bare\t reading of the Section\t indicates  that  an
\naccused\t person\t who  has been convicted  and  sentenced  to
\nimprisonment  for a term is entitled to claim set off of the
\nperiod\t of   detention\t  undergone  by\t  him\tduring\t the
\ninvestigation, inquiry or trial of the same case against the
\nterm of imprisonment imposed on him on such conviction.\t The
\nsection has imposed some restrictions for a convicted person
\nclaiming the benefit of set off which are as under:-\n<\/p>\n
    (i) The imprisonment should be for a term.\n<\/p>\n
    (ii)  The  imprisonment  should not be  one\t awarded  in
\ndefault of payment of fine.\n<\/p>\n
    (iii)  The period of detention undergone by the  accused
\nperson\tduring\tthe investigation, inquiry or  trial  should
\nrelate\tto  the\t same  case in which  he  is  convicted\t and
\nsentenced to undergo imprisonment for a term.\n<\/p>\n
    The\t dictionary meaning of the word “same” is identical;
\nreferring  to  a person or thing just mentioned;   the\tsame
\nthing  as previously mentioned.\t It generally refers to\t the
\nlast   preceding  antecedents;\t one   and  the\t same;\t not
\ndistinct.   Generally  speaking the “same case”\t would\tthus
\nmean  “same  transaction”  for which the  accused  has\tbeen
\ntried.\t Two different criminal cases, therefore, cannot  be
\ntreated\t to be the “the same case” in relation to an accused
\nfor the purposes of determining the applicability of Section
\n428 of the Code.\n<\/p>\n
    The\t accused tried for various offences in one trial can
\nbe  held to be entitled to the benefit of Section 428 of the@@
\n\t JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\nCode being tried for the “same case”.  The words “same case”@@
\nJJJJJJJJJJJJJJJJ
\nappearing  in  the  section  are   ejusdem  generis  to\t the
\npreceding  words “investigation, enquiry or trial”.  If\t the
\nperiod\tof  detention relating to investigation, enquiry  or
\ntrial  is  in  a different case that would  not\t ipso  facto
\nentitle\t the accused to claim the benefit of Section 428 but
\nthat  may  permit  him\tto persuade the\t court\tto  pass  an
\nappropriate  orders in terms of Section 427, keeping in view
\nthe  period  of his under-trial detention in other cases  as
\nwell.\tIt is the need of the time that the court convicting
\nthe  accused should develop a healthy practice of specifying
\nin  the order the total period of pre-conviction  detentions
\nthat he has undergone in that case or in some other case for
\nthe purposes of awarding the sentence upon conviction.\n<\/p>\n
    In\tShabbu\t&  Anr.\t v.  State of U.P.   &\tAnr.   [1982
\nCrl.L.J.   1757]  a Full Bench of the Allahabad\t High  Court@@
\n\t\t    JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\nheld:@@
\nJJJJJ<\/p>\n
    “It\t is  thus  obvious  that  Section  428\tCr.P.C.,  is
\nintended  to  relieve the anguish of undertrials  for  their
\nprolonged  detention  in  jail\t during\t the  investigation,
\ninquiry\t or  trial  of a case.\tIts object is  to  confer  a
\nspecial\t benefit  upon\ta convict whereby his  liability  to
\nundergo\t the imprisonment, ultimately imposed upon him in  a
\ncase,  stands  reduced\tby the period during  which  he\t has
\nremained  in  jail  as an under-trial prisoner in  the\tsame
\ncase.  It simply aims at setting off or crediting the period
\nof  pre-  conviction  detention\t of the accused\t of  a\tcase
\ntowards\t the  sentence ultimately awarded to him  after\t his
\nconviction in that very case.”\n<\/p>\n
    After  referring  to  the  judgments of  this  Court  in
\nMr.Boucher  Pierre  Andre  v.  Superintendent  Central\tJail
\nTihar,<\/a>\t[AIR  1975 SC 164], Suraj Bhan v.  Om  Prakash<\/a>\t[air
\n1976  sc  648],\t Govt.\tof A.P.\t v.  A.V.Rao<\/a>  [AIR  1977  SC
\n1096], the earlier judgment of that Court in Nasim v.  State
\nof  U.P.  [1978 All LJ 1284], the judgment of the Delhi High
\nCourt  in  K.C.\t Das v.\t State[1979 Crl.LJ 362],  of  Bombay
\nHigh  Court  in Jaswant Lal Harjivan Das Dholkia  v.   State
\n[1979  Cri.LJ 971], Mohan Lal v.  State of U.P.\t [1979\tLuck
\nLJ  272], the Full Bench further held that under Section 428
\nthe period of detention as an under-trial of an accused in a
\nparticular  case  can be set off only towards  the  sentence
\nultimately  awarded  to\t him in that very case.\t  The  Court
\nfurther held:\n<\/p>\n
    “Whether  or  not the detention of a person in one\tcase
\nshould\talso be treated to be his detention for the purposes
\nof any other case, wherein he is wanted, is a question to be
\ndecided\t upon the facts and circumstances of each case.\t  No
\nset formula can be laid down in that behalf.”\n<\/p>\n
    Dealing  with  the scope and object of Section 428\tthis
\nCourt  in  Raghbir Singh v.  State of Haryana<\/a> [1984 (4)\t SCC
\n348] held:\n<\/p>\n
    “There  was no provision corresponding to Section 428 of
\nthe  Code in the Code of Criminal Procedure, 1898 which\t was
\nrepealed  and  replaced\t by  the   present  Code.   It\t was
\nintroduced  with the object of remedying the  unsatisfactory
\nstate  of  affairs that was prevailing when the former\tCode
\nwas  in\t force.\t  It was then found that many  persons\twere
\nbeing  detained\t in prison at the pre-conviction  stage\t for
\nunduly\tlong periods, many times for periods longer than the
\nactual\tsentence  of imprisonment that could be\t imposed  on
\nthem on conviction.  In order to remedy the above situation,
\nSection\t 428  of the Code was enacted.\tIt provides for\t the
\nsetting\t off  of the period of detention as  an\t under-trial
\nprisoner  against  the sentence of imprisonment\t imposed  on
\nhim.  Hence in order to secure the benefit of Section 428 of
\nthe Code, the prisoner should show that he had been detained
\nin prison for the purpose of investigation, inquiry or trial
\nof the case in which he is later on convicted and sentenced.
\nIt  follows  that if a person is undergoing the sentence  of
\nimprisonment imposed by a court of law on being convicted of
\nan  offence in one case during the period of  investigation,
\ninquiry\t or  trial of some other case, he cannot claim\tthat
\nthe  period occupied by such investigation, inquiry or trial
\nshould be set off against the sentence of imprisonment to be
\nimposed\t in  the  latter  case\teven  though  he  was  under
\ndetention  during such period.\tIn such a case the period of
\ndetention  is  really a part of the period  of\timprisonment
\nwhich  he  is undergoing having been sentenced\tearlier\t for
\nanother\t offence.   It\tis  not\t  the  period  of  detention
\nundergone  by him during the investigation, inquiry or trial
\nof  the\t same  case in which he is later  on  convicted\t and
\nsentenced to undergo imprisonment.  He cannot claim a double
\nbenefit\t under Section 428 of the Code i.e.  the same period
\nbeing  counted as part of the period of imprisonment imposed
\nfor  committing\t the former offence and also being  set\t off
\nagainst\t the  period of imprisonment imposed for  committing
\nthe  latter offence as well.  The instruction issued by\t the
\nHigh  Court in this regard is unexceptionable.\tThe stand of
\nthe State Government has, therefore, to be upheld.”\n<\/p>\n
    After  going  through  the scheme of the  Code  and\t the
\nobject\tfor  which  Section  428 was  incorporated,  I\thave
\nreached\t the conclusion that the law laid down by this Court
\nin  Raghubir Singh’s case(supra) does not require any review
\nor a new interpretation.  Taking any other view would amount
\nto  legislating\t and  amending\tthe plain  meanings  of\t the
\nsection.   Giving  a  contrary interpretation may,  in\tsome
\ncases,\tbe against the public policy.  Any person accused of
\na heinous crime, in that even, be at liberty to commit minor
\noffences  and  being under trial prisoner in the main  case,
\neventually may not get any imprisonment of law for the minor
\noffences  committed  by\t him.  It cannot be  the  object  of
\ncivilised criminal jurisprudence to encourage the repetition
\nof  crime  by  adoption of an approach of  liberality.\t The
\ncommercial  approach  of sale of commodities  providing\t for
\npurchasing of one expensive item and getting three free with
\nit,  cannot  be imported into criminal justice system.\t The
\nviews  of  Guwahati High Court in Lalrinfela Vs.   State  of
\nMizoram\t and Ors.  (1982 Crl.L.J 1793), Andhra Pradesh\tHigh
\nCourt  in  Gedala Ramulu Naidu Vs.  State of A.P.  and\tAnr.
\n(1982  Crl.   Law  Journal 2186) and Madras  High  Court  in
\nChinnasamy  Vs.\t  State of Tamil Nadu and Ors.\t (1984\tCrl.
\nLaw  Journal  447) would amount to giving bonus to a  person
\naccused\t of  a\theinous\t crime to have\tthe  minor  offences
\ncommitted  with it virtually without any punishment of\tlaw.
\nDelhi High Court in K.C.  Das Vs.  The State (1979 Crl.\t Law
\nJournal\t 362)  is  shown to have adopted an  approach  which
\napparently is contradictory in terms.  After holding:\n<\/p>\n
    “The  words\t “of  the  same case”  are  important.\t The
\nsection speaks of the “period of detention” undergone by the
\naccused\t person,  but it expressly says that  the  detention
\nmentioned  refers to the detention during the investigation,
\ninquiry or trial of the case in which the accused person has
\nbeen  convicted.  The section makes it clear that the period
\nof  detention which it allows to be set off against the term
\nof  imprisonment impugned on the accused on conviction\tmust
\nbe  during the investigation, inquiry or trial in connection
\nwith the “same case” in which he has been convicted.”\n<\/p>\n
    the\t Court by referring to an illustration formulated by
\nitself\tin  para  3  of the judgment, posed  a\tquestion  to
\nitself, an answered the same, observing:\n<\/p>\n
    “Will  it  not  be true to say that the  accused  is  an
\nundertrial  prisoner in the second case in our illustration.
\nIf  it\tis  so\the  will be entitled to\t set  off  his\tpre-
\nconviction  period against the term of imprisonment  imposed
\non him in the second case as in the first.  We see no ground
\nto deny him the benefit in the second case.”\n<\/p>\n
    For\t reaching at this conclusion the reliance was placed
\nupon  the judgment of this Court in Govt.  of Andhra Pradesh@@
\n\t  JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\nand  Anr.   Vs.\t Anne Venkateswara Rao.\t etc.  (supra).\t  In@@
\nJJJJJJJJJJJJJJJJJJJJJ
\nthat  case,  this  court had nowhere held that the  set\t off
\ncontemplated under Section 428 of the Code can be claimed by
\na  convicted  person, irrespective of his detention  in\t the
\nsame case or in some other case.\n<\/p>\n
    The\t object of criminal justice system is to reform\t the
\ncriminal  but  not  to encourage him for the  repetition  of
\ncrime.\t Penology has a twin object, i.e.  (i) punishing the
\ncriminal  to avoid repetition of crime and (ii) to endeavour
\nfor  his reform wherever possible.  The increasing crime  in
\nthe  country has seriously to be taken note of.\t Crime is an
\nact  of\t warfare  against community touching new  depths  of
\nlawlessness.   The object of imposing deterrent sentences is
\nto  protect  the  community against callous  criminals;\t  to
\nadminister  as\tclearly\t as possible to\t others\t tempted  to
\nfollow\tinto lawlessness on a war scale if they are  brought
\nto  and\t convicted, deterrent punishment will follow and  to
\ndeter  criminals  from\trepeating  their  criminal  acts  in
\nfuture.\t  Fazal\t Ali,J.\t in Maru Ram Vs.  Union of  India  [
\n1981 (1) SCC 106) rightly observed:\n<\/p>\n
    “The  question, therefore, is – should the country\ttake
\nthe  risk  of  innocent\t lives being lost at  the  hands  of
\ncriminals  committing  heinous crimes is the holdy  hope  or
\nwishful\t thinking  that\t one day or the other,\ta  criminal,
\nhowever dangerous or callous he may be, will reform himself.
\nValmikis  are  not  born  everyday and to  expect  that\t our
\npresent\t generation, with the prevailing social and economic
\nenvironment, would produce Valmikis day after day is to hope
\nfor the impossible.”\n<\/p>\n
    Discretion\tof treating under-trial detention period may
\nbe relevant consideration for the Court while passing orders
\nin  terms of Section 427 of the Code but the accused  cannot
\nbe  permitted  to  claim set off of the\t under-trial  period
\nundergone  by him in connection with other cases.  Powers of
\nthe  Court  to impose sentences should not be allowed to  be
\nregulated at the instance or discretion of the accused.\n<\/p>\n
    The fall out of the interpretation giving the benefit of
\ndetention  during  investigation, inquiry and trial  in\t one
\ncase,  in  the other case, may also tempt the  investigating
\nagencies not to arrest the accused for the commission of the
\nsecond\toffence pending conclusion of the trial and  passing
\nof  sentence  in  the  first  case.   After  conviction\t and
\nsentence in a criminal case, if arrested in the second case,
\nthe  accused  shall not be entitled to claim the benefit  of
\nSection\t 428  of  the  Code   because  the  sentence,\tupon
\nconviction,  can obviously be not equated with the period of
\ndetention  contemplated\t under Section 428 of the Code.\t  As
\nsuch  by adopting such a recourse, the courts would not,  in
\nany  case, advance the interests of justice but actually and
\nfactually  frustrate  its purpose defeating the\t concept  of
\nspeedy trial in criminal cases.\n<\/p>\n
    Facts  of this case are that the respondent was arrested
\non  29th  November,  1995  in\tconnection  with  CR  707\/95
\nregistered  at\tKhar  Police Station,  Mumbai.\t During\t the
\ninvestigation it transpired that he was also involved in the
\noffences  registered  vide CR 737\/95 on 29th November,\t1995
\nSantacruz  Police  Station.  He was shown arrested  in\tboth
\ncrime numbers.\tAfter being chargesheeted in both the cases,
\nhe  was\t tried\tseparately.   In one of\t the  cases  he\t was
\nconvicted and sentenced under Sections 395 and 397 of IPC on
\n3.4.1998.   The\t learned  Judge held that  the\taccused\t was
\nentitled  to  set off under Section 428 of Cr.P.C.  for\t the
\nperiod\tof  custody already undergone.\tHe was convicted  in
\nthe  second  case for the offences punishable under  Section
\n392,  395 of IPC and held entitled to set off under  Section
\n428  of\t Cr.P.C.  The respondent prayed for his\t release  as
\naccording  to him, he had already served sentences.  Relying
\nupon the Government Resolution dated 7th September, 1974 the
\nJail  Authorities  refused to release the respondent on\t the
\nground that he could not be given set off in the second case
\nas he had been given set off in the first case.\t The accused
\nfiled  a  petition  in the High Court which was\t allowed  by
\nimpugned  order,  holding that the convict was\tentitled  to
\nbenefit of Section 428 of the Code in both the cases for the
\nperiod\tof detention undergone by him during  investigation,
\ninquiry and trial.\n<\/p>\n
    In\tthe  light  of the view I have\ttaken  the  impugned
\njudgment of the High Court cannot be sustained and is liable@@
\n\t    JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\nto be set aside.  Allowing the appeal filed by the State the@@
\nJJJJJJJJJJJJJJJJ
\njudgment  impugned is set aside holding that the  respondent
\nis  not\t entitled to the benefit of set off in the  sentence
\nawarded to him in the second case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Maharashtra & Anr vs Najakat Alia Mubarak Ali on 9 May, 2001 Author: Sethi Bench: R.P. Sethi CASE NO.: Appeal (crl.) 617 of 2001 PETITIONER: STATE OF MAHARASHTRA & ANR. Vs. RESPONDENT: NAJAKAT ALIA MUBARAK ALI DATE OF JUDGMENT: 09\/05\/2001 BENCH: R.P. Sethi JUDGMENT: SETHI,J. L…I…T…….T…….T…….T…….T…….T…….T..J Despite perusing the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-197965","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Maharashtra & Anr vs Najakat Alia Mubarak Ali on 9 May, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-anr-vs-najakat-alia-mubarak-ali-on-9-may-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Maharashtra & Anr vs Najakat Alia Mubarak Ali on 9 May, 2001 - 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