P.N. Bhagwati. J.
1. The petitioner was arrested on 10th November, 1971 in connection with an offence of theft which took place in the Night between 3lst October, 1971 and 1st November, 1971 in Rajasthan Emporium at Ashoka Hotel, New Delhi. He was tried by the Additional Sessions Judge, Delhi and by an order dated 16th July, 1973 he was convicted of the offence under Section 380 of the Indian Penal Code and sentenced to rigorous imprisonment for four years and a fine of Rs. 10,000/- and in default of payment of fine, further rigorous imprisonment of one year An appeal preferred by him to the High Court of Delhi failed and his conviction was confirmed but the substantive sentence of imprisonment was reduced to two years though the fine was enhanced to Rs. 15,000/- with one year's rigorous imprisonment in default. The order of the High Court in appeal was passed on 4th April, 1974 The petitioner did the term of imprisonment imposed on the petitioner came to an end on 12th August, 1974 and his detention since that date was contrary to law.
2. The question which arises for determination in this petition is a narrow one and it rests on the true interpretation of Section 428. In this section confined in its application only to cases where a person is convicted after the coming into force of the new code of Criminal Procedure, or does it also embrace cases where a person has been convicted before but his sentence is still running at the date when the new CrPC came into force? It is only if the latter interpretation is accepted that the petitioner would be entitled to claim the benefit of the section and hence it becomes necessary to arrive at its proper construction. Section 428 reads as follows :
Where an accused person has, on conviction, been sentenced to imprisonment for a term, 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.
3. This section, on a plain natural construction of its language, posits for its applicability a fact situation which is described by the clause "where accused person has, on conviction, been sentenced to imprisonment for a term." There is nothing in this clause which suggests, either expressly or by necessary implication, that the conviction and sentence must be after the coming into force of the new CrPC. The language of the clause is neutral. It does not refer to any particular point of time when the accused not pay the amount of fine and he was, therefore, liable under the order of the High Court to serve a maximum sentence of imprisonment for three years. Since the Petitioner was continuing under the detention from 10th November, 1971 during investigation, enquiry and trial of the case against him, the petitioner contended that by reason of Section 428 of the new CrPC, which came into force from 1st April, 1974, the period of detention from 10th November, 1971 upto 16th July, 1973 was liable to be set off against the term of imprisonment imposed upon him and he could be required to undergo imprisonment only for the remainder of the term which, after taking into account the remission granted on account of good behavior, expired on 12th August, 1974. The petitioner claimed that he was, therefore, entitled to be freed on 12th August, 1974 and his detention in jul since that date was illegal. The petitioner tiled an application for a writ of habeas corpus in the High Court of Delhi challenging the validity of his detention since 12th August, 1974 but the High Court took the view that since the conviction of the petitioner by the Sessions Court had taken place prior to the coming into force of the new CrPC, Section 428 had no application and the petitioner was bound to suffer imprisonment for the full term of three years calculated from the date of conviction, namely, 16th July, 1973. The habeas corpus application in the High Court having tailed, the petitioner preferred the present writ petition directly in this Court under Art 32 of the Constitution. This writ petition also claimed the same relief and the ground was also the some namely,, that by reason of Section 428, person should have been convicted and sentenced. It merely indicates a fact situation which must exist in order to attract the applicability of the section and this fact situation would be satisfied equally whether an accused person has been convicted and sentenced before or after the coming into force of the new CrPC. Even where an accused person has been convicted and sentenced prior to the coming into force of the new CrPC but his sentence is still running, it would not be inappropriate to say that the "accused person has, on conviction, been sentenced to imprisonment for a term". Therefore, where an accused person has been convicted and he is still serving his sentence at the date when the new CrPC 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 terms of course, if the term of the sentence has already run out, no question of set off can arise. It is only where the sentence is still running that the section can operate to restrict the term. This construction of the section does not offend against the principle which requires that unless the legislative intend is clear and compu???sive, no retrospective operation should be given to a statute On this interpretation, the section is not given any retrospective effect. It does not seek to set at nought the conviction already recorded against the accused person. The conviction remains intact and unaffected and so does the sentence already undergone. It is only the sentence, in so far as it yet remains to be undergone, that is reduced. The section operates prospectively on the sentence which yet remains to be served and curtails it by setting off the period of detention undergone by the accused person during the investigation, inquiry or trial of the case. Any argument based on the objection against giving retrospective operation is, therefore, irrelevant.
4. We reach the same conclusion also by a different process of reasoning Sub-section (1) of Section 484 repeals the old CrPC. But Sub-section (2), Clause (b), provides that notwithstanding such repeal, all sentence passed under the old CrPC and which arc in force immediately before the commencement of the new CrPC shall be deemed to have been passed under the corresponding provisions of then new Code. The sentence of imprisonment and tine passed against the petitioner under the provisions of the old Code of Crimina1 Procedure must, therefore, be deemed to have been passed under the provisions of the old CrPC must, therefore, be seemed to have been passed under the corresponding provisions of the new CrPC. 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, full effect must be given to it and it should be carried to its logical conclusion. To quote the words of Lord Asquith in East and Dwelling Co Ltd., v. Finsbury Borough Council 1952 A C 190, 132, "If you arc bidden to t cat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the punative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of this in these cases is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause, or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." We must, therefore, imagine the sentence imposed upon the petitioner as one imposed under the new CrPC and then give effect to all the consequences and. incidents which would inevitably flow from or accompany a sentence imposed under the new CrPC. Now, there was no dispute before us that Section 428 would be clearly applicable where an accused person has been sentenced to imprisonment under the new CrPC The applicability of Section 428 was resisted only on the ground that it does not apply to a case where an accused person has been sentenced under the old CrPC. But if the sentence imposed on the petitioner, though under the old CrPC, is to be regarded, for the purposes of the new Code, as a sentence passed under the new Code and all the consequences and incidents are to be worked out on that basis, Section 428 must clearly be held to be applicable to the case of the petitioner and his liability to undergo imprisonment must be restricted to the remainder of the term imposed on him, after setting off the period of for which he was detained during the investigation, inquiry and trial of the case against him.
5. The State, however, raised one further contention to defeat the claim of the petitioner to the benefit of Section. 428 That contention was that even if, on the construction accepted by us, Section 428 were applicable to a case where an accused person has been convicted under the old CrPC and, is still serving his sentence at the due when the new CrPC came into force, it would not avail the petitioner, because the set off provided by the section is only a against the substantive term of imprisonment imposed on an accused person and not against a sentence of imprisonment in default of payment of fine. The only substantive sentence of imprisonment passed of fine. The only substantive sentence of imprisonment passed against the petitioner was for a term of two years and if the period of his detention during investigation, inquiry and trial of the case were set off against this term of two years, no part of it would remain to be served after the coming into force of the new Code but the term of one year's imprisonment in default of payment of fine would then begin and continue until 1st April, 1975 subject to remission and the petitioner would not, therefore, be entitled to claim that his detention was illegal in view of Section 428. This contention urged on behalf of the State is also without force. The distinction which it seeks to make between a substantive sentence of imprisonment and a sentence of imprisonment in default of payment of fine, for the purpose of applicability of Section 428, is wholly unfounded. When a accused person is sentenced to imprisonment for a term in default of payment of fine, it is a much a sentence of imprisonment imposed upon him as a substansive sentence of imprisonment. It is true that where an accused person is sentenced to imprisonment for a term in default of payment of fine, he can avoid undergoing such imprisonment by making payment of the fine, but it he does not, he would have to undergo such imprisonment and that would be for the full term specified in the sentence. 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. The object of enactment of Section 428 is, as pointed out by the Joint Committee of Parliament while recommending its introduction :
...in many cases accused persons are kept in prison for very long period as under-trial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as under-trial prisoner. Indeed, there may even be cases who such a person is acquitted. No doubt, sometimes courts do take. into account the period of detention undergone as under-trial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is not always the case so that in many cases, the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The committee has also noted that a Urge number of persons in the overcrowded jails of today are under trial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs.
6. We fail to see how, having regard to this object of Section 428, any differentiation can be made between a substantive sentence of imprisonment and a sentence of imprisonment in default of payment of fine. The nature of the mischief arising by reason of the accused person being made to suffer jail life "for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute" would be the same in the both cases and it is impossible to imagine that the legislature should have sought to remedy this mischief in one case and leave it untouched in the other. Therefore, even if two constructions of Section 428 were possible, we should adopt that which suppresses the mischief and advance the remedy and carries out the subject of the legislature as fully and effectually as possible. We accordingly take the view that Section 428 applies not only in relation to a substantive sentence of imprisonment but also in relation to a sentence of imprisonment in default of payment of fine. The period for which an accused person has been detained during investigation, inquiry ar trial of the case is liable to be set off not only against a term of substantive imprisonment but also against the term of imprisonment in default of payment of fine. The set off, however, does not absolve the accused person from the liability to pay the fine imposed on him. Section 421 of the new Code provides that even if the accused person has undergone the whole of the imprisonment in default of payment of fine, the Court passing the sentence can issue a warrant for the recovery of the fine if, for special reasons to be recorded in writing, it considers it necessary so to do or it has made an order for payment of expenses or compensation out of the fine under Section 357.
7. Lastly, it was contended on behalf of the State that, so far as the present case is concerned the High Court, in appeal, reduced the sentence of imprisonment imposed on the petitioner from four years to two years, taking into account the fact that the petitioner had already been in detention from 10th November, 1971 upto 16th July, 1973 during the investigation, inquiry and trial of the case against him and the petitioner had, therefore, already obtained the benefit which was intended to be provided by Section 428 and he could not claim it over gain by seeking to set off his pre-conviction period of detention against the reduced term of imprisonment imposed on him. This argument is also without substance. Section 428 is absolute in its terms. It provides for set off the pre conviction detention of 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 read with words which are not there. That is clearly impermissible according to well recognised cannon of construction. It is quite understandable that the legislature has not introduced any such exception, because very often the factors which weigh with the Court in imposing a particular term of imprisonment are not articulated and in many cases it would be a matter of speculation whether and to what extent the fact that an accused person was in detention prior to his conviction must have weighed with the Court in imposing a sentence of imprisonment.
8. We may point out that there are two decisions, one of the Andhra Pradesh High Court in Biddika Jogannadham v. Superintendent Central Jail Visakhapatnam and Anr. WP No. 711 of 1974 decided on September 24, 1974 and the other of the Bombay High Court in Narayanan Nambeesan as, the State of Maharashtra, 76 Bom. L.R. 690 where the same view in regard to the interpretation of Section 428 which has found favour with us, has been taken. The Delhi High Court has, however, taken a different view in the case of this very petitioner in Mr. Boucher Pierre Andre v. The Superintendent, Central Jail Tihar, New Delhi and Anr. Crl. Writ No. 21 of 1974, decided on September 27, 1974. The decision of the Delhi High Court must be regarded as incorrect and it must be overruled.
9. We are, therefore, of the view that the detention of the petitioner in jail since 12th August, 1974 is illegal and we accordingly direct that the should be set at liberty forthwith.