The Supreme Court held on Monday that the advantage of Section 428 CrPC may only be used if the convict was detained during the investigation, inquiry, or trial and it was the "same case."

Section 428 CrPC provides when the period of detention undergone by the accused to be set off against the sentence or 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 of 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.”

Referring to the provisions of Section 428 CrPC and caselaws regarding it, the bench of Justices KM Joseph and Hrishikesh Roy observed that "As far as Section 428 of Cr.P.C. is concerned, an indispensable requirement to invoke Section 428 of Cr.P.C. is that there must be a conviction. The conviction must be followed by a sentence of imprisonment. It must be for a term and it should not be imprisonment in default of payment of fine. If these requirements exist, then the occasion opens up for applying the beneficial provisions of Section 428 of Cr.P.C. However, for it to be invoked the existence of detention undergone by the convict during investigation, enquiry or trial in the 'same case' is indispensable. If these requirements are satisfied, the convict would be entitled to the set off for the period of detention which he has undergone."

The court consequently rejected his request for the custody he had, which was admittedly in connection with another case, to be treated as custody in the contempt of court case.

“We are of the view that this circumstance, if it is indeed correct, should not be available to the applicant to convert what was custody which he was undergoing in connection with another case to custody in the contempt of Court case. In other words, we cannot understand in the facts of this case that the custody undergone by the applicant in connection with another case admittedly and which had its origin and continuance all through out with reference to the said case as custody undergone in the contempt of Court case.

15. We cannot, therefore, agree with the applicant that a clarification must be issued by this Court that the commencement of period of imprisonment should be treated as from 03.02.2020 instead of 22.09.2022.”

On September 22, 2022, Shivinder Mohan Singh was found guilty of contempt of court and given a six-month prison term. In his miscellaneous application, he argued that, as of the date he was brought to the Supreme Court from Jail No. 7, Tihar Jail, New Delhi, he was already being held in custody in connection with another case. He requested clarification in order that the six (Six) month sentence be judged to have started on February 3, 2020, rather than September 22, 2020. It was decided to rely on Section 428 CrPC.

Case details 

Vinay Prakash Singh vs Sameer Gehlaut

MA 1902 OF 2022

https://main.sci.gov.in/supremecourt/2022/33420/33420_2022_4_30_39652_Order_14-Nov-2022.pdf