9. We find no merit in the contentions of the applicant. The following are the reasons. Section 428 of Cr.P.C. on which the applicant lays considerable store by, actually contemplates the presence of two circumstances. They have been highlighted in the very judgment which the applicant relies on, namely (2001) 6 SCC 311, State of Maharashtra and Another versus Najakat Alia Mubarak Ali. 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 we notice that in the order dated 15.11.2019, the Court contemplated a chance being afforded to the applicant to purge himself of the contempt.
Hon’ble Apex Court after distinguishing Supreme court Judgment Niranjan Singh and Another Versus Prabhakar Rajaram Kharote and Others – (1980) 2 SCC 559 which explains what is custody has held as follows:
Hon’ble Apex Court after distinguishing Supreme court Judgment Niranjan Singh and Another Versus Prabhakar Rajaram Kharote and Others – (1980) 2 SCC 559 which explains what is custody has held as follows:
12. As far as Section 428 of Cr.P.C. is concerned, 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.
Party
MR. VINAY PRAKASH SINGH PETITIONER(S) VERSUS SAMEER GEHLAUT & ORS RESPONDENT(S) SHIVINDER MOHAN SINGH APPLICANT – MISCELLANEOUS APPLICATION NO.1902 OF 2022 (@ DIARY NO.33420 OF 2022) WITH INTELOCUTORY APPLICATION NO.157792/2022 (APPLICATION FOR CLARIFICATION/DIRECTION) IN CONTEMPT PETITION (CIVIL) NO.2120 OF 2018 IN SPECIAL LEAVE PETITION (CIVIL) NO.20417 OF 2017
