1. S. 428 of the criminal procedure code, 1973, Under which these petitions have been filed and which is of critical importance here provides:
"where an accused person has, On conviction, Been sentenced to imprisonment for a term, The period of detention, 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 imprisonment imposed on him on such conviction, And 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. "'
this is a new provision. It allows set - off of periods of detention against terms of imprisonment covered by sentences. The sentences should be in force on the date of set - off. The mere fact of pendency of an appeal or proceeding in revision from the conviction and sentence would not by itself stop operation of the sentence. Unless the sentence is suspended or the accused is let out on bail by the appellate or revisional court the conviction and sentence appealed from or sought to be revised would continue to operate. Therefore set - off can be made under the section so long as there is no order of the appellate or revisional court suspending the sentence or releasing the accused on bail.
2. There is scope for set - off only when there is a legally enforceable sentence. Set - off proceeds on the assumption that the entire sentence passed is valid and enforceable. In fact the sentence awarded by judgment after conviction forms the foundation for set - off. No doubt after set - off the liability of the convict to suffer imprisonment is reduced to the balance period. But that balance period and the period of detention when added make up the full term of imprisonment awarded by the judgment of court. Indirectly the granting of set - off allows the term of imprisonment awarded to be calculated from the date of commencement of detention. Thus by granting set - off only credit is given to the convict in the calculation of the term of imprisonment awarded to him for the period he was in detention. It does not in any manner alter the sentence or the judgment entering conviction and awarding sentence. They remain the same even after set - off.
3. For operation of set - off the two periods for action there should be definite ascertainable periods on the date of set off. The period of detention undergone by a convict is always definite and ascertainable by the time the sentence is passed. But not so all sentences of imprisonment. If they are for a definite number of years or months or days they are definite and ascertainable. Such cases can present no difficulty. But if the sentence is imprisonment for life the period is not ascertainable in terms of years, Months and days as it depends on the span of life of the convict and is uncertain till the end. It is true that there are certain statutory provisions treating imprisonment for life as one for twenty years. Thus under s. 57 of the indian penal code imprisonment for life is directed to be reckoned as equivalent to imprisonment for 20 years and under r. 291 (c) of the rules framed under the travancore - cochin prisons act, 18 of 1950, Imprisonment for life is deemed to be one for a term of 20 years. But they are all only for certain specific purposes. Thus the provision in s. 57 of the i. P. C. Is only for calculation of fractions of terms of imprisonment and the provision in r. 291 of the rules framed under the prisons act is only for the purpose of calculation of remissions and such other matters dealt with in those rules. The supreme court held in g. V. Godse v. State of maharashtra air. 1961 s. C. 600 that "imprisonment for life" under the ipc. Prima facie had to be treated as imprisonment for the whole of the remaining period of the convicted person's life.
4. Under s. 55 of the ipc. The appropriate government can commute. Imprisonment for life to a definite period not exceeding fourteen years. Even if the government commutes a sentence like that, That would not make it available for set - off under s. 428 of the crl. P. C. Because that commuted period is not the imprisonment imposed on the offender on conviction. For being availed of for set - off under s. 428 the imprisonment should be one imposed on conviction. Only courts have power to convict and sentence offenders. Commutation by government is not a sentence on conviction. In spite of the commutation under s. 55 of the ipc. The sentence imposed by court on conviction would continue to be imprisonment for life. Therefore even if the period of imprisonment to be undergone by a person who has been sentenced to imprisonment for life becomes ascertainable on commutation by government it does not become available for set - off under s. 428 of the crl. P. C.
5. The set - off contemplated by s. 428 of the crl. P. C. Is against "term of imprisonment". Although in common parlance "imprisonment for life" is considered as "imprisonment" they are treated as two different kinds of punishment in the ipc. And the crl. P. C. ; "imprisonment for life" is not "imprisonment" there. A monkey is not necessarily a man because he is descended from the same anthropoid ancestors. As stated by ogden and richards in their work on the'meaning of meaning', Words have no real existence in themselves, They are, In fact, Only a special class of symbols, The most important class of signs used in thinking and communication and therefore words and verbal analysis receive meaning only by reference to an object or a situation in the real world, Called 'referent' by ogden and richards. What is the 'referent' here? in s. 53 of the ipc. "imprisonment for life" is considered a category by itself distinct from the category of "imprisonment". In s. 389. Of the crl. P. C. Which deals with suspension of sentence pending appeal "imprisonment for life" and "imprisonment for a term" are treated in clause (4) as two distinct punishments. Therefore the two expressions, "imprisonment for life" and "term of imprisonment" have to be treated as distinct and separate, The latter not being a genus of which the former is a specie and they being mutually exclusive. S. 428 of the crl. P. C, Lakes into account for set - off only "term of imprisonment" and not "imprisonment for life". In that view also convicts sentenced to imprisonment for life are hot entitled to get the benefits of s. 428 of the crl. P. C.
6. The right of set - off envisaged is a legal right. It is not a matter left to the discretion of courts. Convicts are entitled to claim it as of right. Therefore if the conditions laid down under s. 428 of the crl. P. C. Are satisfied courts have no option to refuse set - off and as s. 484 (2) (b) of the new criminal procedure code provides that notwithstanding repeal of the old code all sentences passed under the old code and which are in force should be deemed to have been passed under the new code relief under s. 428 of the new crl. P. C. Has to be given in all cases to which that section applies irrespective of the question whether the sentence passed was under the old code or the new code.
7. With the above principles in view let us now consider the petitions we are at present concerned with. Crl. M. Ps. 629, 630,631, 632 and 634 of 1974
these petitions have come up before us with the following order of reference by our learned brother, Mr. Justice gopalan nambiyar:
"these criminal m. Ps. Seek to claim the benefits of the provisions of s. 428 of the criminal procedure code, 1973 in respect of a judgment of mine in criminal appeals 110 and 111 of 1972 disposed of on 15th december 1972. The question is whether the sentence passed by the said judgment, Which appears to have become final as far as these petitioners are concerned, Can be altered under the provisions of s. 482 read with s. 484 crl. P. C. I am informed that the same question is pending before a division bench of this court. The question is important and merits consideration by a division bench. I adjourn these petitions for being heard before a division bench. Issue notice to the learned advocate - general."
we have indicated above what in our opinion is the proper interpretation of s. 428 of the crl. P. C. The petitioners in these cases are accused nos. 1, 2, 3 4 and 6 in sessions case no. 14 of 1971 of the sessions court, Kozhikode. The sessions judge convicted them for various offences, Sentenced them to imprisonment for definite number of years and directed the sentences to run concurrently. Their convictions and sentences were confirmed by this court in criminal appeals 110 and 111 of 1972. There is nothing on record here to show that the supreme court has suspended their sentences or granted them bail, Their convictions and sentences are still in force. The period each of them was in detention in this case prior to his conviction and sentence is allowed to be set - off against the terms of imprisonment imposed on him. The period he was in detention would be calculated by the jail authorities. It is made clear that this relief granted under s. 428 of the crl. P. C. Is in addition to the benefits the convicts may get otherwise than under the provisions of the crl. P. C.
crl. M. Ps. 596, 597, 598, 599, 600, 601, 602, 603, 604, 605, 606, 607, 622, 677 and 686 of 1974
the petitioners in these cases are accused no. 8,11,13, 42, 43, 60, 62, 63, 65, 77, 82, 83, 87, 91 and 129 in sessions case nos. 36 and 51 of 1970 of the sessions court, Kozhikode. They were acquitted by the trial court but convicted by this court in criminal appeals 30 and 35 of 1972 and sentenced to various terms of imprisonment. The sentences were directed to run concurrently. One of the sentences imposed on accused no. 129 was imprisonment for life and as regards the others although their sentences were for definite number of years and months they have all been granted bail in appeal by the supreme court and there is nothing to show that their appeals have been disposed of by that court. Hence all these petitions are dismissed.
crl. M. P. Nos. 623, 624, 625, 626, 627, 628, 675 and 676 of 1974
the petitioners are accused nos. 2, 9,10,. 12,15,18, 24 and 26 in sessions case nos. 32, 52 and 65 of 1971 of the sessions court, Palghat. The sentences imposed on them by the trial court were confirmed by this court in appeal and they are still in fores. The sentence on each of them was imprisonment for life. Hence these petitions are dismissed.