KUMAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) In all these cases, the prisoners are life convicts and they are crying their eyes out from roof top for giving them set off under Section 428 of the Code of Criminal Procedure (hereinafter called as "Cr.P.C."). The issue relating to the entitlement of a life convict to set off the period of detention undergone by him during investigation under Section 428 Cr.P.C., is no more res integra in view of the authoritative pronouncement of the Constitution Bench of the Supreme Court in Bhagirath v. Delhi Administration, 1985 2 SCC 580. We extract paragraph 8 from the said judgment to drive home this point.:--

(2.) When law is so clear and categorical, how did these prisoners miss out? The answer is not far to seek. Whenever a person is arrested by the police during the course of investigation and remanded to custody by the Magistrate, a Remand Warrant of commitment in Judicial Form No. 59 appended to the General Rules of Practice and Circular Orders 1958 will be made ready with the signature and seal of the remanding Magistrate. This remand warrant is the passport to enter the goal. When a prisoner is admitted to the prison, apart from the Admission Register, there are two other records viz., History ticket and Convict Register that are maintained in the prison under the Tamil Nadu Prison Rules. The Prison Authorities make necessary entries in these records about the admission of the prisoner. When the prisoner is granted bail by the Court, a bail bond in Form No. 45 of the Code will be executed by the sureties to the satisfaction of the Magistrate, who in turn would send the same to the prison along with the release order. On receipt of the bail bond, the jail authorities would obtain the signature of the prisoner in that bond and would release him thereafter, unless not required in any other case. The Prison Authorities will return the bail bond and the Remand Warrant to the Magistrate from whom they received them. On account of this, the Magistrate will know how long the prisoner was in custody. If the case is committed to the court of Sessions, the Magistrate is required to send the bail bond Form No. 45 and the Remand Warrant (Form No. 59) to the Sessions Court along with other records. If the accused is convicted and sentenced to imprisonment by the trial court (be it the Sessions Court or the Magistrate), a Warrant of Commitment in Form No. 34 of the Code or in Judicial Form No. 71 of the Rules of Practice of Sentence to Life Imprisonment should be prepared under the signature and seal of the Presiding Judge and should be sent to the prison along with the convict. It is the normal practice in the State of Tamil Nadu, for the Judicial Officers to calculate the period of detention undergone by the accused during investigation and record the same in the warrant of commitment. The Convicting Court collects these particulars from the remand warrant and the bail bond that was returned by the jail authorities to the Magistrate. Though we are not able to lay our hands on any Rule either in the Code or in the Criminal Rules of Practice, which casts a duty on the Presiding Officer to enter the pre-conviction detention particulars in the warrant of commitment, applying the principle optimus interpres rerum usus [The best interpretation comes from usage], we propose to give legal imprimatur to this practice via this order. In fact Section 476 of the Code permits lawful variations in the Forms.

(3.) In Vinay Thyagi v. Irshaq Ali, 2013 5 SCC 762, the Supreme Court has said that "the matter which are understood and implemented as a legal practice and which are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of contemporanea exposito - The practice of judicial officers giving the particulars of the period of detention undergone by the accused in the Warrant of Commitment is indeed a healthy one and it is not opposed to any law. On the contrary, it would only promote the cause of justice. In all these cases, the Judicial Officers had not given the said detention period in the commitment warrant and therefore, the Prison Authorities were not able to give the set off under Section 428 Cr.P.C.