Undertrial period should be deducted from sentence: Madras high court

Times of India: Chennai: Tuesday, 23 September 2014.

Remand or undertrial period spent by a person in jail should be deducted from the final sentence awarded to him in case of his conviction, Madras high court has said.

Section 428 CrPC which provides for setting off the prison period already served before conviction, is not the court's charity but law's guarantee, ruled a division bench comprising Justice S Rajeswaran and Justice P N Prakash.

The judges were passing orders on a batch of petitions filed by convicts whose release is delayed because neither courts nor prison authorities had details of their eligible set off period.

Assailing the authorities, the judges said: "The best way to obviate this difficulty is to install digital finger printing machine in all the 136 prisons in Tamil Nadu. At present, we are told, only 9 central prisons have this facility. We are suggesting to the state government to install this facility in all prisons so that even if a prison riot takes place, information will not get obliterated for it can be stored in the office of the additional director-general of prison."

Section 328 quite unambiguously states that an accused person has, on conviction, eligible for the set off of the period of detention, if any, undergone by him during investigation, inquiry or trial of the same case. He shall undergo only the remainder, if any, of the term of imprisonment imposed on him.

When law is so clear and categorical, how did these prisoners miss out?" the judges wondered, and pointed out that the fault was that of judges who seldom calculate and mention the pre-conviction detention undergone by the person concerned.

"The prisoner cannot be made to suffer for the fault of the presiding officer of the court in not giving the pre-conviction detention particulars of a prisoner to jail authorities. Actus curiae neminem gravabit. [An act of the Court shall prejudice no man]. If the prison authorities do not send correct particulars to government, the prisoner will be seriously prejudiced inasmuch as he will be disqualified for premature release, even though fully qualified," they said.

On being informed that increasingly more and more inmates were seeking their pre-conviction detention details under the RTI Act, the bench said it was only natural that they are resorting to the legislation.

Commending the few trial judges who take pains to calculate and record the pre-conviction particulars in their judgments, the judges said it would help the higher judiciary, jail officials and the convicts themselves. It also commended the services of advocate S Sri Devi for having pursued the case till its logical conclusion.