Code of Criminal Procedure, 1973 – s.428 – Period of detention undergone to be set off against the sentence or imprisonment – When – Applicant was found guilty of contempt by order dtd.15.11.19, was sentenced for 6 months imprisonment by order dtd.22.09.22 – Present application seeks clarification w.r.t the date of commencement of the term of imprisonment, which as per the applicant should be from 03.02.20 instead of 22.09.22, as he has been in custody since then though in another case – Held: Applicant stood convicted by order dtd.15.11.19 – The Court before sentencing had to cause the production of the applicant – Applicant was already undergoing pre-trial custody in connection with another case – Therefore, he had to be produced from the custody which he was undergoing in that case – He was produced– Merely because Supreme Court after convicting the applicant by order dtd.15.11.19 caused the production of the applicant before it for the imposition of an appropriate sentence, it cannot be said that the applicant would be in custody – An indispensable requirement to invoke s.428 is that there must be a conviction followed by a sentence of imprisonment for a term and it should not be imprisonment in default & ORS.
of payment of fine – Detention undergone by the convict during investigation, enquiry or trial must be in the ‘same case’ – In the present case, the applicant has not undergone any detention in connection with the contempt case – Custody undergone by the applicant admittedly in connection with another case cannot be understood as custody undergone in the contempt of Court case – No clarification as sought, can be issued.
Judgments/Orders – Interpretation of – Held: A judgment of a Court is not to be read shorn of the facts and the context in which the law has been declared.
Dismissing the application, the Court
HELD: 1.1 Section 428 of Cr.P.C. on which the applicant lays considerable store by, actually contemplates the presence of two circumstances. During the stage of investigation, inquiry or trial of a particular case the prisoner should have been in jail at least for a certain period. The second requisite is that he should have been sentenced to a term of imprisonment in that case. In the facts of this case, the applicant was in custody admittedly in connection with another case on 15.11.2019 as also on 03.02.2020 and also on 16.03.2020. For the mere reason that this Court after convicting the applicant by order dated 15.11.2019 caused the production of the applicant before this Court for the purpose of considering the imposition of an appropriate sentence, it cannot be said that the applicant would be in custody. In this regard it is noticed that in the order dated 15.11.2019, the Court contemplated a chance being afforded to the applicant to purge himself of the contempt. [Para 9][666-G-H; 667-A-C]
State of Maharashtra and Another versus Najakat Alia Mubarak Ali (2001) 6 SCC 311 : [2001] 3 SCR 600 – referred to.
1.2 A judgment of a Court is not to be read as the Euclid’s Theorem shorn of the facts and the context in which the law has been declared. [Para 11][668-F-G]
Niranjan Singh and Another Versus Prabhakar Rajaram Kharote and Others (1980) 2 SCC 559: [1980] 3 SCR
15 – distinguished.
1.3 An indispensable requirement to invoke Section 428 of Cr.P.C. is that there must be a conviction. The conviction must be followed by a sentence of imprisonment. It must be for a term and it should not be imprisonment in default of payment of fine. If these requirements exist, then the occasion opens up for applying the beneficial provisions of Section 428 of Cr.P.C. However, for it to be invoked the existence of detention undergone by the convict during investigation, enquiry or trial in the ‘same case’ is indispensable. If these requirements are satisfied, the convict would be entitled to the set off for the period of detention which he has undergone. In this case, the applicant has not undergone any detention in connection with the contempt case. A perusal of the order passed by this Court would reveal that the applicant stood convicted by order dated 15.11.2019. The Court before sentencing the applicant had to cause the production of the applicant. It so happened that the applicant was already undergoing pre-trial custody in connection with another case. Therefore, he had to be produced from the custody which he was undergoing in that case. He was produced. An affidavit was filed by him, wherein he sought to purge himself of the contempt. The Court was not satisfied with the case made out by the applicant for purging. But the Court was also inclined to give an opportunity to the applicant to attempt to purge himself for the contempt. Since he was produced from custody, he necessarily had to go back to custody in connection with another case. In the facts of this case the custody undergone by the applicant in connection with another case admittedly and which had its origin and continuance all through out with reference to the said case cannot be understood as custody undergone in the contempt of Court case. [Paras 1214][669-A-H]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.