NARAYANAN NAMBEESAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) PETITIONERS Nos. 1 and 2 in this petition were original accused Nos. 2 and 3 in Sessions Case No. 22 of 1970 tried by the Additional Sessions Judge, Sangli. The Sessions Court by its judgment dated April 16, 1971 convicted both of them under Section 120 -B read with Section 408, Indian Penal Code, and sentenced each of them to R.I. for five years and to pay a fine of Rs. 2000 and in default of the payment of fine, to undergo rigorous imprisonment for further nine months. They were also convicted under Section 408, Indian Penal Code simpliciter and each of them was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 3000 and in default of the payment of fine to undergo further rigorous imprisonment for one year. The substantive sentences were to run concurrently. Against their said convictions, the petitioners preferred Criminal Appeal No. 774 of 1971 along with original accused No. 4, in this Court. This Court by its order dated July 13, 1973 confirmed their convictions under both the counts, but reduced the substantive sentences of both the petitioners from five years to three years rigorous imprisonment under each of the counts. The sentences of fine, the default sentences as well as the order directing that the substantive sentences should run concurrently, were however maintained.

(2.) THE petitioners have filed the present petition praying for an appropriate direction to the Jail authorities to act under the provisions of Section 428 of the Code of Criminal Procedure, 1973, and set off the period of their detention during the investigation and trial against the term of imprisonment imposed on them on their convictions. Although the petition which has been forwarded through the Jail has not been drawn up in so many words under Article 226 of the Constitution of India for the issuance of a writ of mandamus against the State of Maharashtra and the Jail authorities in the State, for the aforesaid direction, the same will have to be treated so and with the consent of the parties it is treated as such.

(3.) THE rival contentions of the parties may be stated thus. According to Mr. Chitnis appearing for the State, the provisions of Section 428 are applicable only to those accused who are convicted under the new Code and are not applicable to those convicted under the old Code i.e. the Code of Criminal Procedure, 1898, since the convictions and sentences of the latter are governed by the old Code and admittedly there was no provision in the old Code similar to the one contained in Section 428 of the new Code. He submitted that to give benefit of Section 428 to those convicted prior to the coming into operation of the new Code is to give retrospective operation to the said section and this is not warranted either by the language of the said section or by any other provision in the Code, and will also be contrary to the principles of the interpretation of statutes. Mr. Singhavi, on the other hand, contended that, in the first instance, the language of Section 428 of the new Code is clear and unambiguous and covers the case of any accused person who has, on conviction, been sentenced to imprisonment. The petitioners in this petition satisfy, on the date on which Section 428 came into operation, the test viz. that of persons having been sentenced to imprisonment on conviction. Therefore, on the language of the section itself, without anything more, the petitioners are entitled to the benefit of the provisions of the said section. His next contention was that the said section cannot be construed as retrospective in its operation merely because for giving its benefits an event which has taken place prior to its coming into operation has to be taken into consideration as a qualification or a pre -requisite. The benefit to be given is to operate in future i.e. for the period subsequent to its coming into operation. Thirdly, he submitted that even assuming that to give benefit of the provisions of the said section to the persons convicted in the past will amount to making the said provisions retroactive in operation, such retroactive operation will be legal and valid since the said provisions are merely procedural in nature, and procedural statutes are retrospective in their operation, unless a contrary intention is expressed. He further contended that the provisions contained in Section 428 are reformatory in nature and the benefits thereof should normally be available to all without unwarranted distinction between those convicted prior and those convicted subsequent to its coming into operation. His last contention was that Section 484 of the new Code makes abundantly clear, if the provisions of Section 428 are held not to be so clear, that a person convicted and sentenced under the old Code will be entitled to the benefit of the provisions of Section 428. In this connection he pointed out that Sub -clause (b) of Sub -section (2) of Section 484 states among other things that all sentences passed and orders made under the old Code and which were in force immediately before the commencement of the new Code, should be deemed respectively to have been passed or made under the corresponding provisions of the new Code. In view of these provisions, lie contended that it was clear that persons who were, convicted and sentenced under the old Code would also be entitled to the benefit of the provisions of Section 428 of the new Code.