STATE OF MAHARASHTRA Vs. NAJAKAT ALIA MUBARAK ALI

JUDGEMENT

(1.) Leave granted.

(2.) An accused has been convicted and sentenced to imprisonment in two criminal cases. As he was arrested on the same day in connection with both the cases he remained in jail as an under-trial prisoner during the same period in both cases. The question mooted in this appeal is this: Is it permissible for him to claim the benefit of set off envisaged in Section 428 of the Code of Criminal Procedure (for short 'the Code') in both cases As the High Court of Bombay has answered the question in the affirmative by the impugned judgment this appeal is filed by the State of Maharashtra in challenge of the said view of the High Court.

(3.) A two Judge Bench of this Court has made observations in Raghbir Singh v. State of Haryana (1984) 4 SCC 348 : (AIR 1984 SC 1796) that on that fact situation in the said case the accused cannot claim a double benefit. In other words, learned Judges held that the accused can have the benefit of set off in one of those cases but not in both. When the said decision was cited before the High Court, the learned single Judge who rendered the impugned judgment has stated that on the facts in the case of Raghbir Singh (supra) the question in issue involved here never arose. Learned Judge expressed the view that the accused is "entitled to the benefit of set off in the second case as well where he was in custody during the course of the trial". When the special leave petition in this case came up for consideration on 20-1-2000, we felt that since Raghbir Singh was decided by a two Judge Bench it would be appropriate that this mater is heard by a larger Bench so that a fresh look can be made on Section 428 of the Code.