Legal Provisions of Section 428 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Period of detention undergone by the accused to be set off against the sentence of imprisonment:
This section has been inserted in the Code with a view to tackle the problem of overcrowding in Indian jails and to provide relief to the under trials who were languishing in prisons for very long period out of proportion to the gravity of the offence and the punishment provided for that offence. Thus the main objective of the section is to relieve the anguish of undertrials for their prolonged detention in jail during the investigation, inquiry or trial of a case.
ADVERTISEMENTS:
It may be stated that the relief of set-off under this section was not available to convicts who were sentenced to imprisonment for life on the ground that the section refers to “imprisonment for a term” and therefore, does not apply to cases of “imprisonment for life.” But the Supreme Court in its decision in Bhagirath v. Delhi Administration has extended the benefit of set-off under Section 428 even to persons who are sentenced to life imprisonment.
Therefore, now the position is that under Section 428, the period of detention during the investigation, inquiry or trial in connection with the ‘same case’ is allowed to be set-off against the term of imprisonment imposed on the accused on the conviction in that case.
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Since ‘trial’ also includes an ‘appeal’ therefore, the detention of convict during the period of his appeal may also be allowed to be set-off under this section. The statutory benefit of set-off under this section may be available when the following two essential conditions are fulfilled:
ADVERTISEMENTS:
(1) The accused claiming set-off should have been sentenced to imprisonment for a term (it could be life imprisonment as well), and
(2) He should have undergone detention in jail during investigation, inquiry or trial before the date of conviction.
The provision relating to set-off under Section 428 is applicable uniformly to all sentences of imprisonment whether they run concurrently or consecutively and whether the conviction relates to one case or many cases committed at different times. Where the accused is arrested and detained in two different cases, the computation for the period of set-off should be done separately and he shall be entitled to claim set-off in both the cases.
While computing the sentence for the purpose of granting remission, the period of set-off under Section 428 shall not be counted as period of sentence served after conviction.
ADVERTISEMENTS:
The benefit of set-off is not available to persons sentenced by Court Martial. However, the new Section 169-A inserted in the Army Act, 1950 in 1992, seeks to redress the hardship of persons who are sentenced by the Court Martial.
The period of imprisonment in default of payment of fine cannot be set-off by the period of detention undergone by the convicted person during investigation, inquiry or trial in the case. In the event of non-payment of fine, the convict is liable to undergo imprisonment imposed upon him in default of such payment.
Where the accused was already in jail for a period of 200 days during investigation and trial in his case. He was convicted and sentenced to six months’ imprisonment. It was held that he was entitled to benefit of set-off under Section 428 and had, therefore, undergone the whole term of imprisonment imposed on him by way of sentence.
The Supreme Court in Raghubir Singh v. State of Haryana, held that where a person is undergoing a sentence of imprisonment for an offence in one case during the period of investigation, inquiry or trial of some other case, he is entitled to claim that the period of such investigation, inquiry or trial should be set-off against the sentence of imprisonment to be imposed upon him in the latter case even though he was under detention during such period.