9. Whether the period of detention in prison, though obtained bail on 04.09.2014 and was produced on PT warrant, till 13.09.2017 in S.C. No.7 of 2017 i.e., from 04.09.2014 to 13.09.2017, can be considered for set off in S.C. No.7 of 2017 is the point to be decided.
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11. What is the Law on this point? It is stated in the judgment of the Hon’ble Supreme Court reported in (2010) 1 SCC 603 Atul Manubhai Parekh vs. Central Bureau of Investigation that section 428 makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. In paragraph 20 of the judgment, it is observed as follows:
20. The facts on which the decision was rendered in Najakat Alia Mubarak Ali case are distinguishable from the facts of this case. In the said case, the convict was undergoing imprisonment in two cases in which he had been convicted and he claimed that he was entitled to a set off in respect of both the cases. This Court drawing inspiration from Section 427 on the concurrent running of sentences, held that the petitioner was entitled to set off in both cases in view of the doctrine of merger of sentences when directed to run concurrently in a particular case where conviction is on many counts.
12. This Court while considering this point in Crl.O.P.No.14729 of 2020 dealt with the judgments in State of Punjab Vs. Madam Lal reported in (2009) 5 SCC 238, Atul Manubhai Parekh Vs.CBI reported in (2010) 1 SCC 603, Pyare Mohan Lal vs. State of Jharkhand reported in (2010) 10 SCC 693, Maliyakkal Abdul Azeez vs. Collector reported in (2003) 2 SCC 439, State of Maharashtra vs. Najakat Alia Mubarak Ali reported in (2001) 6 SCC 311 and observed as follows:
23. A plain reading of Section 428 of the Cr.P.C., makes it very clear that the period of set-off contemplated is case-specific. However, when there are multiple convictions, such a set-off can be resorted to as held by the Hon’ble Supreme Court in Najakat Alia Mubarak Ali (cited supra), since when the convict who is undergoing a sentence in a particular case is also convicted in another case and starts undergoing the sentence in the second case, the sentence undergone by him merges with the same period during which he is undergoing the sentence in the first case. This will be the effect of a combined reading of Sections 427 and Section 428 of the Cr.P.C.
13. Thus, it is clear from the judgment of the Hon’ble Supreme Court in State of Maharashtra vs. Najakat Alia Mubarak Ali reported in (2001) 6 SCC 311 rendered by the Hon’ble three member Bench, that when the convict is undergoing a sentence in a particular case, is also convicted in another case and starts undergoing the sentence in the second case, the sentence undergone by him merges with the same period during which he is undergoing the sentence in the first case. This will be the effect of a combined reading of Sections 427 and 428 Cr.P.C.
14. If this ratio is applied to this case, this Court is of the view that the petitioner is entitled to set off for the period from 04.02.2022 in S.C. No. 7 of 2017 for the reason that the sentence passed in S.C. No. 7 of 2017 and Spl.S.C. No. 5 of 2014 merges from 04.02.2022.
PARTY: Thangaraj @ Thamizharasan S/o Mani vs. State by: The Superintendent of Prison, Central Prison – 1, Puzhal, Chennai 600 066 – 03.03.2023 – Crl.O.P.No. 27173 of 2022 – CORAM THE HON’BLE MR. JUSTICE G. CHANDRASEKHARAN.
