BABULAL CHHOTALAL SHARMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The question regarding the scope of sec. 428 of the Code of Criminal Procedure 1973 is the principal question that is required to be decided in this matter. A Division Bench of this Court consisting of J. B. Mehta and P. P. Desai JJ. before whom this Special Criminal Application came up for final hearing found that there was a conflict of decisions between different judgments delivered by this High Court. In Aditya Ramkrishna v. State (1974) 15 G. L. R. 670 the same Division Bench of J. B. Mehta and P. D. Desai JJ. was dealing with a case where the sentence of imprisonment was imposed after the new Code of Criminal Procedure of 1973 (hereinafter referred to as the new Code) came into force. P. D. Desai J. speaking for the Division Bench in that case had pointed out that sec. 428 of the new Code imposes a duty on the authorities and a corresponding right on the accused person to have the period of detention during the investigation inquiry or trial of a case set off against the term of imprisonment imposed on him on his conviction for an offence. The Court imposing the punishment should therefore give suitable direction providing for set-off of the period of detention of an under-trial prisoner against the term of imprisonment and restrict the liability of the accused to undergo imprisonment to the remainder of the term of imprisonment imposed upon him. If the Court has omitted to give such a direction due to oversight the accused cannot be made to suffer for the fault of the Court and the statutory right conferred upon him cannot be allowed to be defeated. The Division Bench also held in the case of Aditya Ramkrishna that a substantive sentence of imprisonment is different from or distinct from a sentence of imprisonment for a term imposed upon default of fine. Having regard to the scheme of the Indian Penal Code and the Code of Criminal Procedure and the language employed in and the object underlying sec. 428 its beneficent provisions would be available only to a person who has been substantively sentenced to imprisonment for a term and the Division Bench held that the sentence of imprisonment in default of payment of fine cannot be set-off against the period of detention as an under-trial prisoner. It may be pointed out that in that particular case the accused was arrested prior to coming into force of the new Code and the actual sentence of imprisonment was passed after the new Code came into force. If the new Code were not to apply to pending proceedings and the sentences imposed upon the accused were to be considered to have been imposed under the provisions of the old Code of Criminal Procedure 1898 (hereinafter referred to as the old Code) the question was required to be considered whether the benefit of sec. 428 of the new Code would be available to the accused and the divisions Bench in Aditya Ramkrishnas case held that the beneficant provisions of sec. 428 of the new Code would be available to such an accused.

(2.) Thereafter a different view was taken by another Division Bench Consisting of S. H. Sheth and M. C. Trivedi JJ. in two decisions. One was the decision in Criminal Appeals Nos. 356 and 424 of 1974 decided on September 13/16/17 1974 and the other was the decision in Criminal Appeals Nos. 863 of 1972 and 40 of 1973 decided on September 9 10 1974 S H. Sheth and M. C. Trivedi JJ. held that in the light of the decision of a Full Bench of this Court in Criminal Appeal No. 279 of 1974 decided on May 3 1974 Hiralal Nanalal Bhavsar v. State (XV G.L.R. 725) the view taken in Aditya Ramkrishnas case was not correct. The Division Bench consisting of S. H. Sheth and M. C. Trivedi JJ. in terms observed that because the Division Bench consisting of J. B. Mehta and P. D. Desai JJ. in Aditya Ramkrishnas case had not got the benefit of the Full Bench decision the view in Aditya Ramkrishnas case was inconsistant with the Full Bench decision and the Division Bench of S. H. Sheth and M. C. Trivedi JJ. held that in view of the Full Bench decision pending appeals had to be disposed of under the old Code which did not contain any provision corresponding to sec. 428 of the new Code and therefore to extend the benefit of sec. 428 of the new Code to a pending proceeding in appeal would amount to extending the provisions of the new Code to the pending appeals which was not permissible in view of the Full Bench decision.

(3.) Thereafter the present Special Criminal Application namely No. 105 of 1974 came up for hearing before J. B. Mehta and P. D. Desai JJ. and they came to the conclusion that the observations of the Full Bench in Criminal Appeal No. 279 of 1974 Hiralal Nanalal Bhavsar v. State (XV G.L.R. 725) in no way militated against the decision in Aditya Ramkrishnas. case and in view of this conflict between the decisions of the two different Division Benches and in view of the fact that J. B. Mehta and P. D. Desai JJ. were unable to agree with the conclusions of S. H. Sheth and M. C. Trivedi JJ. the entire case has been referred to a larger Bench and the matter has now come up for hearing before us.