WHAT YOU ALREADY KNOW As soon as the term "SET-OFF" is heard by any person in the legal fraternity, it automatically redirects him...
WHAT YOU ALREADY KNOW
As soon as the term "SET-OFF" is heard by any person in the legal fraternity, it automatically redirects him/her to RULE 6 of ORDER 8 of CIVIL PROCEDURE CODE,1908, which specifically talks about concept of Set-off in a money suit.
SUB RULE 1 OF RULE 6 OF ORDER 8: Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may , at the first hearing of the suit, but not afterwards unless permitted by the court, present a written statement containing the particulars of the debt sought to be set-off.
With the knowledge of this specific provision we think that the term "set-off" in law is used in reference to adjust the ascertained sum of money in a suit which defendant claims against the plaintiff. But, what if today you all come to know that the concept of "Set-off" is also deduced in criminal law as well.
No No, it is not related to recovery of penalty or fine imposed in criminal law but an adjustment of quantum of punishment to which accused is convicted.
PROVISION IN CRIMINAL LAW
The specific provision in the CODE OF CRIMINAL PROCEDURE, 1973 which states the provision of Set-off is ..............
SECTION 428 OF CRPC,1973 : 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:
Provided that in cases referred to in section 433 A, such period of detention shall be set off against the period of fourteen years referred to in that section.
RELEVANCY AND EXPLAINATION
In our criminal justice system, imprisonment is not served only after being proven guilty, but before the date of final judgement arrives there are many instances during which an alleged accused has to be remained detained and imprisoned.
If we start from the very start then the day on which an alleged accused get arrested as per the provisions of Section 41 and Section 46 of code of criminal procedure code,1973, he can either be released on bail(as per bail provisions) or can be committed to any custody as per Section 167 of code of criminal procedure code, 1973, as the judicial magistrate in front of him the alleged accused is presented within 24 hours of arrest.
That custody can be varied from 15 days of Police custody to 60 or 90 days of judicial custody as per the provision of Section 167 of the code.
But the matter dosen't end here only, though there is a provision in Section 167 of the code that accused shall be released on bail after the expiry of the term of 60 or 90 days he served as per the offence and conditions prescribed in Section 167, yet, his imprisonment can be extended further to this time limit if Police had filed its Police report before the expiry of the given term of 60 or 90 days, in that scenario the alleged accused has to be remained in the custody.
SO WHERE THIS TERM OF DETENTION WILL CEASE ?
If the alleged accused remains in the custody beyond period of 60 or 90 days, in that case the maximum period for which the accused can be detained in the custody is to be deduced as per the provisions of SECTION 436A OF CODE OF CRIMINAL PROCEDURE,1973, Which states that:
where a person has, during the period of investigation, inquiry or trial under this code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the court on his personal bond with or without sureties.
The above provision makes it clear that the maximum term the accused can be detained during the trial of the case is the one-half period of the maximum imprisonment provided for such offence.
FOR EXAMPLE: A person is accused of committing theft is detained in custody during his trial, so the maximum time before the final judgement he could be detained is 18 Months, because the maximum term of imprisonment provided for theft is 3 years that is, 36 Months.
But as per further provision given in Section 436A of the code, the court before releasing the accused after serving ONE-HALF of the imprisonment if after hearing the public prosecutor the court deems fit that the accused has to be detained futher, then the maximum term for which he could be detained is the maximum term of imprisonment provided for that offence, that is, 3 years maximum for the offence of theft as explained in above example.
HOW "SET-OFF" IS DONE?
Now, according to provision of Section 428 of the code of criminal procedure, 1973, if the accused is held guilty of the offence for which the trial was held and for which he was kept under trial for the term as specified above, the period of detention which he has already undergone has to be deducted from the period of detention awarded to him by the court for the offence for which he has been held guilty and should go for imprisonment for the remainder period.
For instance, In the above example of theft, If at the end of the trial the accused has been held guilty of theft and sentenced to imprisonment for 3 years by the court.But, he had already undergone imprisoment of 60 days during the trial after which was released on bail, so those 60 days are to deducted from the term of imprisonment awared and the accused has to serve for the remaining period.
In the same manner if had served ONE-HALF of the imprisonment during his trial as per Secion 436A and after that he was released on bail, and now he has been held guilty of theft and awarded sentence of 3 years, that is, 36 months, so the period of ONE-HALF that is 18 months is to be deducted and now he has to undergo for imprisonment for remaining period of 18 Months for the offence of theft.
IF PUNISHABLE WITH LIFE IMPRISONMENT:
As specified above in the Proviso to Section 428 of the code, that in case of Section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section.
According to Section 433A of the code, if the accused is awared life imprisonment for the offence in which the death punishment was the alternative or death punishment was awarded but it was commuted to life imprisonment, in that case the accused shall not be released before the expiry of 14 years.
In this scenario the detention already undergone by the accused during under trial shall be Set-off against this term of 14 years.
QUIZ
A, a person is accused of robbery and undergone imprisonment during trial for 2 years and held guilty at the end of the trial Under Section 392 of THE INDIAN PENAL CODE, 1860 by Magistrate of 1st class.
what period of detention he has to further undergo?
Do comment your views and answers.
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