Supreme Court Clarifies Section 428 CrPC: Set-Off for Undertrial Detention in Criminal Cases

The Supreme Court of India recently delivered a significant judgment in the case of The Superintendent of Prison & Anr. vs. Venkatesan @ Senu @ Srinivasan @ Baskaran @ Radio @ Prakasam, addressing the interpretation of Section 428 of the Code of Criminal Procedure (CrPC). The judgment, dated April 22, 2025, was delivered by a bench comprising Justice Dipankar Datta and Justice Manmohan. The case revolved around whether an undertrial prisoner could claim a set-off for periods of detention in one case while undergoing imprisonment in another.

The appellants, the Superintendent of Prison and the Inspector of Police, challenged the Madras High Court’s order granting set-off to Venkatesan for specific periods of detention under Section 428 CrPC. Venkatesan, a member of the banned Tamil Nadu Liberation Army, had been convicted in multiple cases and sought set-off for his remand periods in one case while serving sentences in others. The High Court had allowed his petition under Section 482 CrPC, relying on the precedent set in State of Maharashtra v. Najakat Alia Mubarak Ali.

The Supreme Court, however, found the High Court’s approach flawed. The bench noted: “A remedy of appeal having been provided by the CrPC, we are of the firm view that the High Court erred in law in entertaining the petition under Section 482 CrPC filed by Venkatesan.” The court emphasized that the proper remedy lay in an appeal under Section 374(2) CrPC, not a petition under Section 482.

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The judgment delved into the conflicting interpretations of Section 428 CrPC, particularly the divergent views expressed in Najakat Alia Mubarak Ali. Justice K.T. Thomas, in the majority opinion, had held: “The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period.” However, Justice R.P. Sethi dissented, stating: “The section does not contemplate the benefit of set-off of the period of detention during investigation, enquiry or trial in any other case.”

The Supreme Court observed that the inconsistency in Najakat Alia Mubarak Ali created confusion. The bench remarked: “How far and to what extent the efficacy of the decision in Najakat Alia Mubarak Ali as a precedent would bind subsequent Benches of this Court remains debatable in view of the aforesaid apparent irreconcilable conflict.” The court also referenced Atul Manubhai Parekh v. CBI, which distinguished Najakat on facts and held that Section 428 CrPC applies only to pre-conviction detention in the same case.

Ultimately, the Supreme Court stayed the High Court’s order and referred the matter to the Chief Justice of India for consideration by a larger bench. The court noted: “Consistency, certainty, predictability and finality of judicial decisions are the hallmarks of a sound justice delivery system.” The judgment underscores the need for clarity in interpreting legal provisions to ensure uniformity in their application.

Petitioner Name: The Superintendent of Prison & Anr..
Respondent Name: Venkatesan @ Senu @ Srinivasan @ Baskaran @ Radio @ Prakasam.
Judgment By: Justice Dipankar Datta, Justice Manmohan.
Place Of Incident: Chennai, Tamil Nadu.
Judgment Date: 21-04-2025.
Result: allowed.

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