SACHINDRANATH DEY Vs. SUPERINTENDENT MUMBAI

JUDGEMENT

(1.) Heard learned Advocates for the parties. Perused the record.

(2.) The short but very important point which arise for consideration in this petition pertains to the methodology to be followed under Section 428 of the Criminal Procedure Code (hereinafter called as "the Code") for the grant of set off in relation to pre conviction -detention of the accused against the sentence of imprisonment on his conviction. Simultaneously other points which arise for consideration are that whether in the facts and circumstances of the case the petitioner was entitled to be released immediately on passing of the order dated 5.9.2003 by the learned Magistrate in Criminal Case No. 134/P/2000, on account of entitlement of facility of grant of set off under Section 428 of the Code and that whether the petitioner was illegally detained for 45 days beyond the period for which he could have been made to suffer the imprisonment in terms of order passed in 32 -cases namely Case Nos. 113, 112 114, 141, 138, 134, 137, 135, 143, 115, 128, 125, 129, 118, 127, 136, 137 of 2001, 111 of 2002, 136 of 2000, 32 and 142 of 2003 wherein sentence imposed was directed to run concurrently in all the cases.

(3.) It is the contention of the petitioner that even though in terms of Section 428 of the Code, the petitioner was entitled for the benefit of set off in respect of detention in each of the above referred cases, the respondents had granted such set off only in one case viz. Case No. 136 of 2001 for a period of 1 -year 1 -month and 15 -days. The fact that the set off has been granted in relation to the pre -conviction detention undergone by the petitioner in only one case namely Case No. 136 of 2001 is not in dispute. The contention of the respondents is that bearing in mind the provisions of law contained in Section 428 of the Code, the calculations done by the respondents in relation to the said set off in terms of the order passed by the Magistrate cannot be found fault with and the petitioner having been granted maximum set off of 1 -year 1 -month and 15 days, there was no illegal detention of the petitioner as sought to be contended by the petitioner.