Set-Off Under Section 428 CrPC Applies Only to Custody in the Same Case in Which Conviction Is Recorded: Supreme Court Refers Conflicting Precedents for Authoritative Interpretation

“Judicial Confusion Must Not Frustrate Legislative Clarity” – Supreme Court emphatically clarified that the benefit of set-off under Section 428 of the Code of Criminal Procedure cannot be extended to periods spent in custody under Prisoner Transit (PT) warrants, unless such detention directly relates to the case in which the conviction is ultimately recorded. While allowing the appeals and staying the High Court’s direction that granted such benefit, the Court raised a serious constitutional concern over conflicting interpretations in previous decisions, and formally referred the issue to the Chief Justice of India for consideration by a larger bench.

The Court observed that “the words ‘of the same case’ in Section 428 must be read as referring only to custody endured in connection with the very case in which a sentence of imprisonment is later imposed. To read it otherwise would distort the legislative intent.”

The respondent Venkatesan, a member of the banned Tamil Nadu Liberation Army, was convicted in multiple cases relating to serious violent offences. While undergoing imprisonment in one case, he was produced under PT warrants in S.C. No. 2 of 2002 and remained in judicial custody during three separate spells—2005–2006, 2008–2009, and 2014. Upon his conviction in 2019 in S.C. No. 2 of 2002, he claimed the benefit of set-off under Section 428 CrPC for those periods, though they were not directly linked to that case.

The Sessions Court had rejected this claim, but the Madras High Court allowed it by invoking the precedent in State of Maharashtra v. Najakat Alia Mubarak Ali (2001), where a three-judge bench had appeared to endorse a broader interpretation of Section 428. The State appealed to the Supreme Court.

Supreme Court’s Observations on Section 428 and Abuse of Interpretative Doctrine

The Court expressed deep concern at how High Courts had relied on the Najakat ruling without reckoning with its internal inconsistencies. It noted that “Section 428 is clear in language and effect—it allows credit for pre-sentence detention only in the case that leads to conviction. The phrase ‘same case’ cannot be judicially stretched to include all detentions that happen to coincide temporally.”

Highlighting the flawed approach of the High Court, the bench stated: “The High Court entertained the petition under Section 482 CrPC despite there being an appellate remedy under Section 374(2). This was a grave legal error. The denial of set-off was part of the judgment and could not be sidestepped by resort to inherent powers.”

The Court emphasized that judicial reasoning must serve the scheme of the Code: “Section 428 belongs to a chapter concerned with execution, suspension, remission and commutation of sentences. Its purpose is to prevent unjust punishment, not to confer arbitrary advantages based on procedural overlaps.”

Conflict in Najakat Case and the Need for Clarification

The Court undertook a detailed analysis of the ruling in Najakat Alia Mubarak Ali, pointing out that although it was rendered by a three-judge bench, the reasoning was deeply divided.

While Justice K.T. Thomas adopted a broader view stating, “It is immaterial that the prisoner was undergoing sentence in another case also,” the dissent by Justice R.P. Sethi asserted, “Section 428 does not intend to give a bonus to an accused guilty of multiple crimes by merging detention periods from separate cases.”

Justice S.N. Phukan’s so-called concurrence with Justice Thomas, the Supreme Court observed, in fact mirrored Justice Sethi’s restrictive reading: “Any other period which is not connected with the said case cannot be said to be reckonable for set-off.”

The Court concluded: “There is an irreconcilable conflict in the reasoning adopted by the judges in Najakat. What was assumed to be a majority view may not, in truth, reflect unified legal doctrine.

Referral to Larger Bench

Having dissected the precedents and statutory scheme, the Court ruled: “The High Court’s decision is unsustainable and is accordingly set aside. The direction granting set-off is stayed until further orders. However, if the respondent has already been released, he shall not be taken back into custody.”

In a rare but necessary move, the bench referred the issue for authoritative resolution: “We place the matter before the Hon’ble Chief Justice of India to consider the constitution of a bench of appropriate strength to resolve the interpretation of Section 428 CrPC, which has become clouded due to conflicting decisions.”

This ruling provides immediate clarity and prospective relief from potential misuse of the set-off provision by individuals serving concurrent or overlapping sentences in unrelated cases. At the same time, it underlines a critical jurisprudential need for consistency, urging the Supreme Court to deliver a conclusive interpretation that will bind all courts.

The Court declared, “Judicial interpretation must not subvert the legislative design. The meaning of ‘same case’ cannot be lost in the fog of conflicting judgments.”

Date of Decision: April 22, 2025