“MERGER OF SENTENCE” AND HUMAN RIGHTS

 

“MERGER OF SENTENCE” AND HUMAN RIGHTS

INTRODUCTION :

Article 21 of the Constitution of India lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. Right from A.K. Gopalan Vs. State of Madras reported in AIR 1950 SC 27, Article 21 has been interpreted by the Hon’ble Apex Court and scope of Article 21 is extended now. The author intends to discuss about the power of the Courts regarding merger of sentence in different kinds of cases in the light of Article 21 of Constitution of India.

Law relating to “Merger of sentence”

Section 428 Cr.P.C is relevant to the topic, so the same extracted hereunder.

428. Period of detention undergone by the accused to be set off against the sentence of imprisonment – Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period 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:

(i) Whether benefit u/s. 428 Cr.P.C is available to life convict.

It has been decided in [Kartar Singh Vs. State of Haryana reported in, that the benefit of Section 428 Cr.P.C is not available to Life Convict. In [Bhagirath Vs. Delhi Administration] it has been held that Life sentence is a sentence for a term, such a convict is also entitled to set off subject to Section 433-A Cr.P.C.

(ii) Whether period undergone under preventive detention can be set off u/s. 428 Cr.P.C.

It has been decided in [Maliyakkal Abdul Axeex Vs Asst Collector, Kerala] that Detention under the preventive detention law is not punitive, but is essentially a precautionary measure intended to prevent and intercept a person before he commits.

In the following cases also detention under preventive detention has not been taken for consideration to extend the benefit under Section 428 of Cr.P.C.

1. AIR 1982 SC 1433

2. AIR 1985 SC 1050 : 1985 Crl.L.J. 1179

3.AIR2003SC928                                         [Government of AP Vs. Anne Venkatesware]

(iii) Whether benefit u/s. 428 Cr.P.C can be extended to in default of sentence of fine.

 [In Bagdavam Vs State of Rajasthan reported in, it has been held that the benefit u/s. 428 Cr.P.C is not available when imprisonment is undergone on default of sentence of fine.

Conditions to apply Section 428 Cr.P.C.

(1) During investigation (or) during trial the accused should have suffered detention in jail.

(2) Subsequently the accused must be sentenced to undergo imprisonment.

In [Maliyakkal Abdul Azeez Vs. Asst. Collector Customs] reported in the ingredients of Section 428 Cr.P.C has been discussed.

“of the same case” – meaning :-

In Section 428 Cr.P.C., the words “of the same case” has been employed, the words, “same case” means what? whether it restricts the particular case in which conviction is recorded (or) any other case is the vital question.

In[State of Maharashtra Vs. Najakat Mubarak Ali] reported in, it has been held that the words, ‘of the same case’ are not to be understood as suggesting that the set off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed.

In [Atul Manubhai Parekh VS. Central Bureau of Investigation reported in it has been held that the wording of Section 428 is, our view, clear and unambiguous. The heading of the section itself indicates that the period of detention undergone by the accused is to be set off against the sentence of imprisonment. The section 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. It is quite clear that the period to be set off relates only to pre-conviction detention and not to imprisonment on conviction.

4. AIR 1977 SC 1096

5. 1989 Crl.L.J. 414 Raj = 1988(1) Crimes 455

6. (2003)2h SCC Crl. 439,

7. AIR 2001 SC 2255

8.(2010)1SCC(Crl)859                                           In 9[Raghbir Singh Vs. State of Haryana] reported in, it has been held that in order to secure the benefit of Section 428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced. But he cannot claim a double benefit under Section 428 i.e., the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well.

A Division Bench of Bombay High Court in [Sanjay S. Gondchar Vs. State of Maharashtra & another] reported in has held that the accused would not be entitled to get period of under trial imprisonment suffered in one case for set-off against the sentence to be undergone in another case.

Recently, [Division Bench of Bombay High Court in Saquib Abdul Hamid Nachan and others Vs. The Superintendent, Central Jail and others] reported in has held that the period undergone in another case cannot be permitted to set-off and benefit u/s. 428 Cr.P.C. is not available to the accused convicted in another case.

In all the cases have been decided that since the language employed in Section 428 Cr.P.C., is “of the same case”, so the period already undergone in another case cannot be considered for the benefit u/s. 428 Cr.P.C.

If in a case, an accused is undergone custody during investigation and subsequently if no challan/ final report is filed or ended in acquittal and in another case if the same accused is convicted, is it possible to consider the incarceration in the former case to set-off in the subsequent case. It is to be noted that Article 21 of the Constitution of India lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. Right from [A.K. Gopalan Vs. State of Madras reported in Article 21 has been interpreted by the Hon’ble Apex Court and scope of Article 21 is extended now.

It is needless to say that the definition of human rights is the right guaranteed under the Constitution of India. In A.K. Gopalan case, the Hon’ble Apex Court after the lengthy discussion came to a conclusion that procedure established under law means, the law enacted by the Parliament. If the principle is applied here, the period of custody already undergone cannot be considered.

9. (1984)4 SCC 348

10. 2011 Cr.L.J 2204

11. 2017(4) Crime HC 91

12.AIR1950SC27                                                     The meaning of life as found in Article 21 has been interpreted in the following cases by the Hon’ble Supreme Court.

[Francis Vs. Delhi – “We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing an with fellow human beings”.

Thus, the inhibition against deprivation of ‘life’ would extend to all those faculties by which life is enjoyed.

In the [State of Kerala Scheduled Tribes case the Supreme Court considered the issue as to whether a law which provided that the Tribals should be rehabilitated in their own habitat when a prior alienation by the Tribe was or is illegal violating Article 21 of the Constitution at the instance of the alienated; while considering the question the Court considered the disadvantage, social and economic status of the Tribals and concluded that having regard to the studies conducted by the State Government and as a balance of interest between tribals and non-tribals, there was no transgression of Art.21.

In [P. Rathinam Vs. Union of India, the Supreme Court has defined ‘life’ as follows:

“The right to live with human dignity and the same does not connote continued drudgery. It takes within its fold some of the fine graces of civilization which makes life worth living and that the expanded concept of life would mean the tradition, culture and heritage of the person concerned”.

In [Francis Coralie, the Supreme Court has held that the expression ‘life’ in Art. 21 does not connote merely physical or animal existence but embraces something more. “We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessity of life such as adequate nutrition, clothing and shelter over their head”.

It is needless to point out here that the concept of life has been expansively interpreted recently by the Hon’ble Supreme Court, keeping the same in mind if we look into Section 428 Cr.P.C in case of acquittal in one case and conviction in subsequent case, the period of custody in former case has to be counted in the subsequent case on conviction.

13. AIR 1981 SC 746

14. [(2009)8 SCC 46

15. (AIR 1994 SC 1844)

16. (AIR 1981 SC 746)

 

 

The Hon’ble Madras High Court had an occasion to decide the scope and ambit of Section 428 Cr.P.C in [Chinnasamy Vs. State of Tamil Nadu and others While deciding the same, the object of enactment of Section 428 Cr.P.C. was considered.

Para 6 : The object of the enactment of S.428, as pointed out by the Joint Committee of the Parliament while recommending its introduction, is as under :

“In many cases accused persons are kept in prison for very long periods as under-trial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as under-trial prisoners. Indeed, there may even be cases where such persons are acquitted. No doubt, sometimes Courts do take into account the period of detention undergone as under-trial prisoners when passing sentences and occasionally the sentences of imprisonment are restricted to the period already undergone. But, this is not always the case so that in many cases, the accused persons are made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The Committee has also noted that a larger number of persons in the overcrowded jails of today are under-trial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs”.

Conclusion :-

Hence, in the light of interpretation of life as contained in Article 21 of Constitution of India and human rights, the author is of the view that necessary proviso to be included in Section 428 Cr.P.C. or the same to be amended suitably.

 1983(1) MLJ (Crl) 531 : 1984 Crl.L.J. 447