We ask how exactly should Section 428 of The Code of Criminal Procedure, 1973 be read. Section 428 was brought to light because a “large number of persons” in “overcrowded jails” were under-trial prisoners and setting-off their period of detention against sentences imposed on them would “remedy this unsatisfactory state of affairs”. That was Legislature’s objective. Section 428 does not apply to an imprisonment in default of a payment of fine. A period of “preventive detention” cannot also be set-off under Section 428 as stated in State of Andhra Pradesh v. Anne Venkatesware, (1977) 3 SCC 298 and Maliyakkal Abdul Azeez v. Assistant Collector, Kerala, (2003) 2 SCC 439. In a Review and Writ in Champalal Poonjaji Shah v. State of Maharashtra, AIR 1982 SC 791, Shri Ram Jethmalani argued “with… more than his customary vehemence and emotion”. However, Supreme Court of India (‘SC’) held, Section 428 would apply “only in circumstances where a prisoner would have unquestionably been in detention in connection with a criminal case...” and not in “preventive detention”.

We find a good illustration of applicability of Section 428 through Justice Avadh Behari Rohtagi in K.C. Das v. State, 1979 Cr LJ 362 DEL (‘K.C. Das’), decided on 25/04/1978. In the first part of the illustration, an accused was arrested on 01/01/1977 and subsequently sentenced on 31/07/1978 (‘first case’). Incontestably, the accused was entitled to a set-off of his period of detention from 01/01/1977 to 31/01/1978 against the term of imprisonment imposed on him. A question nonetheless arose in the second part of the illustration. Our first case-accused, while in detention since 01/01/1977, was formally placed under arrest in a second case on 01/01/1978 for which he was convicted and sentenced on 31/03/1978. Would he be entitled to a set-off, in this second case too, of his period of detention from 01/01/1977 to 31/03/1978? Division Bench in K.C. Das answered in affirmative. Division Bench in Lalrinfela v. State of Mizoram, (1982) Cri LJ 1793 GAU (‘Lalrinfela’), decided on 16/06/1982, “entirely agreed with the reasoning and the conclusion reached by Justice Rohtagi”. Court interpreted Section 428 “to mould it to truest and best use” and held, if an accused is ‘simultaneously’ arrested and detained in two or more cases and on conviction obtains a set-off for the period of his detention in the first case he is “not ineligible” to obtain a set-off for the period of his detention in subsequent cases.

Do note, the accused in the illustration in K.C. Das was arrested on 01/01/1977 in the first case and while in detention in this case, was formally placed under arrest in the second case a year later on 01/01/1978. Why did it take one whole year for the arrest in the second case? If this anomaly is overlooked, it could potentially encourage authorities to take a lackadaisical approach by delaying the arrest of first case-accused in second case, potentially even beyond a conviction and sentence in the first case, frustrating speedy trials in criminal proceedings. An accused is helpless against forces of Police. What benefit would an accused stand to gain from a purposeful lackadaisical approach by the Police? It is for doubts such as this, that a Two-Judge Bench in Raghbir Singh v. State of Haryana, (1984) 4 SCC 348 also caused, K.C. Das and Lalrinfela found a voice via Justice K.T. Thomas in a Three-Judge Bench in State of Maharashtra v. Najakat Alia Mubarak Ali, (2001) 6 SCC 311 (‘Najakat’).

Najakat was arrested on 29/11/1995 in connection with CR 707/95 registered at Khar Police Station, Mumbai. He was also shown arrested in connection with CR 737/95, on 29/11/1995, at Santacruz Police Station. A ‘simultaneous’ arrest and detention as Lalrinfela had instructed. In relation to one case, the Sessions Judge convicted Najakat on 03/04/1998 and directed Najakat to be entitled to a set-off under Article 428. In relation to the other case, Najakat was convicted on 23/07/1998 and, this time as well, the Sessions Judge found Najakat to be eligible for a set off. It should be asked, in spite of a ‘simultaneous’ arrest and detention, why was there a difference of more than three months between the decisions of the Sessions Judges? Justice Thomas held, Section 428 is for “advancing amelioration to a prisoner” and hence Najakat was entitled to the benefit of a set-off in both the cases.

Justice R.P. Sethi clearly dissented, perhaps, because exceptional cases of delay by Police or Judiciary cannot lay any fundamental rule in reading a statute. While considering the benefit of a set-off in both the cases, it was noted, “The commercial approach of sale of commodities providing for purchasing of one expensive item and getting three free with it, cannot be imported into criminal justice system.” Section 428, as per Justice Sethi, “does not intend to give any benefit or bonus to an accused guilty of commission of more than one crime by treating the period of detention during investigation, inquiry and trial in one case as that period in the other cases.” Most importantly, Justice Sethi’s concern does find support in Atul Manubhai Parekh v. CBI (2010) 1 SCC 603 which describes, “A habitual offender may be convicted and sentenced to imprisonment at frequent intervals. If the period of pre-trial detention in various cases is counted for set-off… the accused will not have to undergo imprisonment at all in connection with the latter case, which could not have been the intention of Legislature while introducing Section 428.”

How far and to what extent efficacy of Najakat as a precedent would bind subsequent Benches of SC remains a matter of legal debate. Thus, Justice Dipankar Datta and Justice Manmohan on 22.04.2025 referred Superintendent of Prison v. Venkatesan, Criminal Appeal No. 1371 of 2025 to a Larger Bench. An endeavour needs to be made for certainty and continuity in interpretation of law.

It is pleaded that, all intentions, whether of Police or Judiciary or Advocates, having remained noble, and all delays being worthy of condonation, the phrase “during the investigation, enquiry or trial of the same case” cannot be fragmented. The phrase should not be construed to encompass multiple, unconnected cases. It would twist Legislature’s objective behind Section 428. An undertrial incarceration cannot serve as a universal pie for an accused to relish in every other case. Harcharan Singh v. Shivrani, (1981) 2 SCC 535 considered, if words used in a statute are plain and unambiguous, they “must be applied as they stand…” Rananjaya Singh v. Bajinath Singh, AIR 1954 SC 749 observed, “The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the Sections of the Act.” In due respect of Rananjaya, Independent Sugar Corporation v. Girish Sriram Juneja, 2025 SCC OnLine SC 81 added, “When language is unambiguous, Courts must respect its ordinary and natural meaning instead of wandering into realm of speculation and unintended overreach invoking the so called ‘spirit of the law’.” Najakat, through Justice Thomas, “advancing amelioration to a prisoner”, and Division Benches in K.C. Das and in Lalrinfela attempting to ‘mould’ Section 428 “to truest and best use” read much in an unambiguous provision and engaged in “judicial activism” invoking “so called ‘spirit of the law’”. We stand in end December, 2025. It is prayed, Justice Dipankar Datta and Justice Manmohan’s April referral in Superintendent of Prison v. Venkatesan, Criminal Appeal No. 1371 of 2025 is decided soon.