Supreme Court Stays High Court Orders Granting Set‑off Under Section 428 CrPC; Refers Question of Law to Larger Bench

A Bench of Justices Dipankar Datta and Manmohan heard appeals by the Superintendent of Prison, Central Prison‑1, Puzhal, Chennai and the Inspector of Police, Q Branch, CID, Perambalur, challenging Madras High Court orders that allowed set‑off under Section 428 of the Code of Criminal Procedure to prisoners produced on P.T. (Prisoner Transit) warrants in other cases.

The Court held that the High Court erred in entertaining petitions under Section 482 CrPC where an appeal under Section 374(2) CrPC was available, and stayed the directions for set‑off granted by the High Court pending further orders. The Bench recorded that the case raised a “serious question as to proper interpretation of Section 428, CrPC” and referred the issue to the Chief Justice of India for constitution of an appropriate Bench to resolve divergent precedents. The Court, in its reasoning, observed: “The wording of Section 428 is, in our view, clear and unambiguous. The heading of the section itself indicates that the period of detention undergone by the accused is to be set off against the sentence of imprisonment. The section makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. It is quite clear that the period to be set off relates only to pre-conviction detention and not to imprisonment on conviction.” The judgment further recorded that, given the conflicting opinions in Najakat Alia Mubarak Ali, “we feel it prudent to refer the matter to the Hon’ble the Chief Justice of India to consider the desirability of constituting a Bench of appropriate strength for proper interpretation of Section 428, Cr. PC.” The Court ordered that “The direction for set‑off in the impugned order shall remain stayed until further orders; however, if Venkatesan has been released, he may not be taken back in custody.”

Background

The appeals arose from separate petitions by Venkatesan (alias Senu/Srinivasan/Baskaran/Radio/Prakasam) and Ravichandran (alias Kalai/Ravi) under Section 482 CrPC before the Madras High Court seeking set‑off under Section 428 for specific periods during which they were produced on P.T. warrants from other prisons while undergoing imprisonment or trial in different cases. Venkatesan belonged to a banned organisation and was convicted in multiple cases over a span of years; he sought set‑off for remand periods of 24.03.2005–28.02.2006, 22.04.2008–22.04.2009 and 21.04.2014–23.12.2014 in S.C. No.2 of 2002. The sessions court had declined set‑off, and that order had attained finality in S.C. No.2 of 2002; the High Court, however, granted relief under Section 482.

The State contended that the remedy for challenge to denial of set‑off lay by way of appeal under Section 374(2) CrPC and that a petition under Section 482 was not maintainable. The High Court relied upon a three‑Judge Bench decision in Najakat Alia Mubarak Ali and granted set‑off. The Supreme Court reviewed the statutory scheme in Chapter XXXII CrPC, examined earlier precedents including Maliyakkal Abdul Azeez, Anne Venkatesware and Atul Manubhai Parekh, and noted divergent views in Najakat Alia Mubarak Ali regarding the meaning of “the same case” in Section 428. The Bench concluded that the High Court should not have entertained a Section 482 petition when an appeal remedy existed, and, while accepting that Najakat Alia Mubarak Ali bound it as a three‑Judge Bench decision, found the conflict in subsequent coordinate Bench jurisprudence significant enough to warrant a reference to a larger Bench. The appeals were allowed on maintainability grounds, the stay of the High Court’s set‑off directions was ordered, and identical directions were applied in the companion appeal concerning Ravichandran.

Case No.: 2025 INSC 541; Criminal Appeal Nos. 1371 & 1372 of 2025 Case Title: The Superintendent of Prison & Anr. … Appellants v. Venkatesan @ Senu @ Srinivasan @ Baskaran @ Radio @ Prakasam … Respondent (Lead); The Superintendent of Prison & Anr. … Appellants v. Ravichandran @ Kalai @ Ravi … Respondent (Companion) Appearances: For the Petitioner(s): Mr. V. Krishnamurthy, Senior Additional Advocate General (for the appellants) For the Respondent(s): Not indicated/recorded in the judgment text.