IN THE HIGH COURT OF MANIPUR 

 AT IMPHAL 

 CRIMINAL PETITION NO. 11 OF 2022 

1. Ksh. Kennedy Singh, aged about 42 years, s/o  

Ksh. Achou Singh, resident of Kongpal Chanam Leikai, 

P.O. &, P.S. Porompat,, Imphal East District, Manipur-795005. 

2. Ch.Ibomcha Singh, aged about 46 years, s/o Ch.Samu 

Singh, resident of Thongju Part-II, Boroi Makhong, P.O. 

Canchipur, P.S. Singjamei, District Imphal East, 

Manipur – 795003. 

3. S.Bijen Singh, aged about 43 years, s/o 

S. Gourababu Singh, resident of Uripok Sorbon Thingel, 

P.O. & P.S. Imphal, District-Imphal West, Manipur-75001. 

 ……….Petitioners 

– versus – 

1. The State of Manipur represented by the Chief Secretary, Government of Manipur, Babupara, Old Secretariat, 

P.O. & P.S., Imphal, District Imphal West, Manipur -795001. 

2. The Superintendent of Jails, Manipur Central Jail, 

Sajiwa, P.O. Lamlong, P.S. Heingang, District Imphal East, 

Manipur-795010. 

 ……. Respondents 

For the Petitioners :: Mr. N.Surendrajit Singh, Advocate. For the Respondents :: Mr. Athouba Khaidem, PP Date of reserving of Order :: 06.04.2022 

Date of delivery of Order :: 08.04.2022

Cril. Petn. No.11 of 2022 Page 1 

 BEFORE 

HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR 

O R D E R (CAV)  

[1] By way of this petition filed under Section 482 Cr.P.C., the  petitioners seek set-off of the period of detention undergone by them prior to  their conviction and sentencing, under Section 428 Cr.P.C.  [2] The petitioners were arrested on 22.03.2012 in connection with  FIR No.32(03)2012 BPR PS. After a full-fledged trial, they were convicted of  offences under Sections 367, 376(2)(g) and 392 IPC and sentenced to  imprisonment for life, along with payment of fine, by the learned Sessions  Judge, Manipur East, in Sessions Trial No. 8 of 2012, vide Judgment dated  12.06.2013 and Order of Sentence dated 25.06.2013. In appeal, however, this  Court reduced the sentence imposed upon the petitioners to 10 years rigorous  imprisonment. The petitioners are presently lodged in Manipur Central Jail,  Sajiwa. They assert that they completed the requisite incarceration on  22.03.2022, after reduction of the set-off period claimed by them. It is stated  that the fine amount imposed upon the petitioners has already been paid.  [3] Heard Mr. N.Surendrajit Singh, learned counsel for the  petitioners; and Mr. Athouba Khaidem, learned Public Prosecutor, appearing  for State authorities. 

[4] At the outset, it may be noted that there is no mention in the  judgments of the Trial Court and this Court that the benefit of Section 428 Cr.P.C. is either extended or denied to the petitioners. The question that would 

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then arise is whether such an observation is necessary at all in the light of the  statutory scheme. In that context, the issue would also arise as to whether the  period of detention undergone by a person during the investigation, inquiry or  trial of the same case, which would be in the nature of ‘simple imprisonment’,  can be set-off against the ‘rigorous imprisonment’ that he or she is sentenced  to after conviction.  

[5] Section 428 Cr.P.C. reads thus: – 

428. Period of detention undergone by the accused to be set off  against the sentence or imprisonment.– Where an accused person  has, on conviction, been sentenced to imprisonment for a term 1[not  being imprisonment in default of payment of fine], the period of  detention, if any, undergone by him during the investigation, inquiry or  trial of the same case and before the date of such conviction, shall be  set off against the term of imprisonment imposed on him on such  conviction, and the liability of such person to undergo imprisonment on  such conviction shall be restricted to the remainder, if any, of the term  of imprisonment imposed on him. 

2[Provided that in case referred to in Section 433A, such period of  detention shall be set off against the period of fourteen years referred  to in that section.]” 

1. Ins. By Act 45 of 1978, sec.31 (w.e.f. 18-12-1978) 

2. Added by Act 25 of 2005, sec 34 (w.e.f.23-6-2006) 

[6] In the light of the proviso which was inserted in the statute book  on 23.06.2006 by Act No. 25 of 2005, it would be necessary to take note of the  provisions of Section 433A Cr.P.C. This provision deals with restriction on the  power of remission or commutation in certain cases. It reads to the effect that  where a sentence of life imprisonment is imposed upon conviction for an  offence for which death is one of the punishments provided by law, or where a  death sentence has been commuted into one of life imprisonment, such person  shall not be released from prison unless he has served at least 14 years of  imprisonment. The statutory scheme is therefore to the effect that even in cases 

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of life imprisonment, which would extend to at least 14 years of imprisonment,  the benefit of set-off under Section 428 Cr.P.C. is available. Trite to state, life  imprisonment is invariably ‘rigorous imprisonment’, i.e., with hard labour.  Therefore, there can be no gainsaying that even a convict sentenced to  undergo a term of ‘rigorous imprisonment’ would be entitled to seek set-off of  the pre-conviction detention suffered by him in relation to the same case, which  would be in the nature of ‘simple imprisonment’. 

[7] It would be apposite at this stage to note existing curial output on  this issue. In Raja Ram Kashinath Charoskar vs. State of Maharashtra  (2009 Cri LJ 97), a Division Bench of the Bombay High Court opined that the  benevolent provision contained in Section 428 Cr.P.C. cannot be denied to a  convict and such benefit must be awarded without exception and/or discretion  of the Court. These observations were made in the context of a person  sentenced to life imprisonment even prior to 23.06.2006, the date of insertion  of the proviso to Section 428 Cr.P.C. The period of detention undergone by him prior to his conviction was accordingly directed to be set-off against the period  of 14 years, referred to in Section 433 A Cr.P.C.  

[8] In Sukhdev Singh Kahlon vs. CBI, Chandigarh, and others  [2002 (4) RCR (Criminal) 721], a learned Judge of the Punjab & Haryana High  Court observed that, ordinarily, set-off should be calculated and granted by the  prison authorities without any direct order from the Court. Reference was made  to the observations of the Supreme Court in State of Maharashtra and  another vs. Najakat Alia Mubarak Ali, [(2001) 6 SCC 311] and it was 

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observed that if the sentence of imprisonment is longer than the period of  detention undergone by the convict during the stage of investigation, inquiry or  trial, he need undergo only the balance period of imprisonment, after deducting  the earlier period from the total period of imprisonment.  

[9] In Suraj Bhan vs. Om Prakash and another [(1976) 1 SCC 886],  the Supreme Court held that even if the conviction was prior to the enforcement  of the Code of Criminal Procedure, 1973, the benefit of Section 428 therein  would be available to the convict, as the said provision did not contemplate any  challenge to the conviction or sentence but merely conferred benefit on the  convict to reduce his liability to undergo imprisonment out of the sentence  imposed for the period which he has already served as an undertrial prisoner.  [10] In Ranjit Singh vs. State of Punjab [(2010) 12 SCC 506], the  Supreme Court was dealing with a case where the Sessions Court denied the  benefit of set-off under Section 428 Cr.P.C. on the basis of the decision in  Kartar Singh vs. State of Haryana [(1982) 3 SCC 1]. However, the Supreme  Court noted that, in Bhagirath vs. Delhi Administration [(1985) 2 SCC 580], a Constitution Bench had overruled Kartar Singh (supra), and held that  imprisonment for life would be imprisonment for a term within the meaning of  Section 428 Cr.P.C. The appellant was therefore held entitled to the benefit of  set-off under Section 428 Cr.P.C. 

[11] In the light of the above precedential wisdom and given the  statutory scheme of the Code of Criminal Procedure, 1973, there can be no  doubt that the pre-conviction period of detention suffered, even if it is in the 

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nature of ‘simple imprisonment’, would still be liable to be set-off against a  sentence of ‘rigorous imprisonment’. Further, the operation of Section 428  Cr.P.C. would be automatic unless the benefit thereof is specifically denied in  the judgment itself. That is perhaps the reason why, in Atul Thakur vs. State  of Himachal Pradesh and others [(2018) 2 SCC 496], the Supreme Court  ended the judgment by stating that it was ‘needless to mention’ that the  appellant would be entitled to set-off under Section 428 Cr.P.C. It would  therefore not be necessary for the authorities to insist upon an observation to  this effect in the judgment of conviction/order of sentence before extending this  statutory benefit to a convict who is otherwise eligible for the same.  

[12] In the case on hand, the petitioners were arrested on 22.03.2012  and, therefore, they completed 10 years of imprisonment by 22.03.2022. The  period of rigorous imprisonment suffered by them commenced from 25.06.2013  but in the light of Section 428 Cr.P.C., the ‘period of detention’ undergone by  them till that day would be liable to be set-off against the total period of  imprisonment to be undergone.  

 Viewed thus, the Criminal Petition is allowed and the respondent  authorities are directed to release the petitioners, viz.,1) Ksh. Kennedy Singh,  aged about 42 years, s/o Ksh. Achou Singh, 2) Ch.Ibomcha Singh, aged about  46 years, s/o Ch.Samu Singh, and 3) S.Bijen Singh, aged about 43 years, s/o  S.Gourababu Singh, from Manipur Central Jail, Sajiwa, by giving them the  benefit of set-off under Section 428 Cr.P.C. in relation to their sentence of  imprisonment pursuant to the common judgment and order dated 17.07.2017 

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passed by this Court in Criminal (Jail) Appeal No.2 of 2013 and batch, arising  out of the Judgment of Conviction dated 12.06.2013 and the Order of Sentence  dated 28.06.2013 of the learned Sessions Judge, Manipur East, in Sessions  Trial Case No.8 of 2012, unless their incarceration is lawfully required in  connection with any other case. 

CHIEF JUSTICE 

FR/NFR 

Opendro

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