Therefore, where an accused person has been convicted and he is still serving his sentence at the date when the new Code came into force, Section 428 would apply and he would be entitled to claim that the period of detention undergone by him during the investigation, inquiry or trial of the case should be set-off against the term of imprisonment imposed on him and he should be required to undergo only the remainder of the term of course, if the term of the sentence has already run out, no question of set-off can arise.
This construction of the section does not offend against the principle which requires that unless the legislative intent is clear and compulsive, no retrospective operation should be given to a statute. On this interpretation the section is not given any retrospective effect.
The same conclusion can be reached also by a different process of reasoning. Sub-section (1) of the Section 484 repeals the old Code of Criminal Procedure. But sub-section (2), clause (b) provides that notwithstanding such repeal all sentences passed under the old Code and which are in force immediately before the commencement of the new Code shall be deemed to have been passed under the corresponding provisions of the new Code.
The sentence of imprisonment and fine passed against the petitioner in the present case under the provisions of the old Code must, therefore, be deemed to have been passed under the corresponding provisions of the new Code. It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion.
No distinction can be made in principle between a substantive sentence of imprisonment and a sentence of imprisonment in default of payment of fine and both must be held to be within the scope and intendment of Section 428. Thus, the period for which an accused person has been detained during investigation, inquiry or trial for the case is liable to be set off not only against the term of substantive imprisonment but also against the term of imprisonment in default of payment of fine.
Section 428 is absolute in its terms. It provides for set off of the pre-conviction detention of an accused person against the term of imprisonment imposed on him on conviction, whatever be the term of imprisonment imposed and whatever be the factors taken into account by the Court while imposing the term of imprisonment.
It does not say that where the pre-conviction detention of an accused person has already been taken into account by the Court while imposing the term of imprisonment on conviction, no set off of such pre-conviction detention shall be permitted and if the legislature has not introduced any such exception we cannot read it into the section by a process of judicial construction. To read such an exception into the section would be to do violence to the language of the section and to read words which are not there. That is clearly impermissible according to well recognized canon of construction. [Boucher Pierre Andre v. Superintendent, Central Jail, Tihar, New Delhi and another, 1975 II S.C.J., p. 523].
The consistent view of the Supreme Court and the High Court’s regarding the scope of Section 428, Cr.P.C. is that set-off towards the sentence ultimately awarded to an accused in a case has to be allowed to him only-with respect to the period spent by him in jail as an undertrial in that very case.