BENSON Vs. STATE OF KERAL

JUDGEMENT

(1.) This case has been placed before us on a reference by Justice R. Basant after having noticed some incongruity between the decisions of the Supreme Court in State of Maharashtra v. Najakat, AIR 2001 SC 2255 and a Division Bench decision of this Court in Chacko v. State of Kerala, 2004 Cri LJ 481 wherein Najakat's case was not referred to. Learned Judge expressed doubts as to how the observations made in paragraph 8 of the decision in Najakat's case are to be understood and applied in the light of the decision in Chacko's case.

(2.) Question centres round the methodology to be applied by the Criminal Courts when a plea of set off is claimed under S. 428 of the Code of Criminal Procedure, in short 'the Code.' Fair procedure is the soul of Art. 21 and the essence of S. 428 of the Code flows from that article. Prison justice is also the concern of the convicting Courts and judicial warrant which deprives one's life and liberty should also satisfy the test of fair procedure established by law. Universal declaration on Human Rights proclaimed by the U.N. General Assembly on December 10, 1948 finds its expression in Art. 9 thereof which provides that no one shall be subjected to arbitrary arrest, detention or exile. Section 428 was incorporated with the above objective in mind and it is advantageous to have a look on the object and reasons, which is extracted below :

(3.) Two-Judges Bench of the Supreme Court in Raghubir Singh v. State of Haryana, AIR 1984 SC 1796 also examined the scope of S. 428 of the Code and took the view that S. 428 provides for the setting off of the period of detention as an under-trial prisoner against the sentence of imprisonment imposed on him. The Court held that in order to secure the benefit of S. 428 the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry and trial of the case in which he is later on convicted and sentenced. The Court therefore found that if a person is undergoing the sentence of imprisonment imposed by a Court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in the latter case even though he was under detention during such period. After holding so the Court entered the following finding (Para 6) :