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Issues: (i) Whether Section 428 of the Code of Criminal Procedure, 1973 applies where conviction and sentence were recorded before the new Code came into force but the sentence was still running on its commencement; (ii) Whether the set-off under Section 428 extends to imprisonment in default of payment of fine; (iii) Whether the benefit of Section 428 is unavailable because the pre-conviction detention had already been taken into account while reducing the sentence in appeal.
Issue (i): Whether Section 428 of the Code of Criminal Procedure, 1973 applies where conviction and sentence were recorded before the new Code came into force but the sentence was still running on its commencement.
Analysis: The statutory language of Section 428 was held to be neutral and not confined to convictions after the commencement of the new Code. The section was construed to operate where an accused person had already been convicted and was still serving the sentence when the new Code came into force. Reliance was also placed on the legal fiction in Section 484(2)(b), under which sentences passed under the old Code and in force immediately before commencement of the new Code are to be treated as sentences under the new Code, with all their legal incidents.
Conclusion: Section 428 applies to a sentence that was still running on the commencement of the new Code, even though conviction occurred earlier.
Issue (ii): Whether the set-off under Section 428 extends to imprisonment in default of payment of fine.
Analysis: The distinction between substantive imprisonment and imprisonment in default of fine was rejected. Both were treated as sentences of imprisonment within the scope of Section 428. The provision was read in light of its remedial purpose of preventing undertrial detention from exceeding the punishment warranted by the offence. The set-off was held not to absolve the liability to pay the fine, and the recovery provisions under Sections 421 and 357 were noted as preserving the fine liability.
Conclusion: The benefit of Section 428 extends to imprisonment in default of payment of fine.
Issue (iii): Whether the benefit of Section 428 is unavailable because the pre-conviction detention had already been taken into account while reducing the sentence in appeal.
Analysis: Section 428 was held to be absolute in terms and not subject to an implied exception based on whether the sentencing court had already considered pre-conviction detention. No such limitation was found in the text, and it was held impermissible to read one into the provision. The set-off was therefore to be given independently of any appellate reduction of sentence.
Conclusion: Prior consideration of pre-conviction detention in sentencing does not bar the statutory set-off under Section 428.
Final Conclusion: The detention continued after 12 August 1974 was unlawful, and the petitioner was entitled to immediate release.
Ratio Decidendi: Section 428 of the Code of Criminal Procedure, 1973 mandates set-off of pre-conviction detention against the remaining sentence whenever the sentence is still running on the commencement of the new Code, and the set-off applies equally to imprisonment in default of fine without any implied exception for prior sentencing adjustments.
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