VIKAS ALIAS SADHU GENDEV HAGARE (MALI) v. THE STATE OF MAHARASHTRA AND OTHERS
Mandatory Grant of Set-Off Under Section 428 Cr.P.C. to Life Convicts and Maintainability of Writ Petitions for Correcting Judicial Omissions.
Court: Bombay High Court
Citation: 2026:BHC-AUG:12542-DB
Decision Date: 13-03-2026
List of Laws
The Code of Criminal Procedure, 1973 (Section 428, Section 433-A, Section 482); The Indian Penal Code, 1860 (Section 302, Section 323); The Constitution of India (Article 226, Article 227); The Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 528)
- Facts: The petitioner, Vikas @ Sadhu Gendev Hagare (Mali), was convicted by the Additional Sessions Judge, Osmanabad, on 15/02/2012 for offences under Sections 302 and 323 of the Indian Penal Code. He was sentenced to life imprisonment. Although the trial court directed the sentences to run concurrently, it failed to pass an order granting him set-off under Section 428 of the Cr.P.C. for the period of pre-conviction detention from 05/10/2010 to 15/02/2012. Notably, a co-accused in the same case was granted such a set-off. The petitioner sought a direction for the modification of the judgment to include this statutory benefit.
- Procedural Posture: The petitioner approached the High Court of Judicature at Bombay, Bench at Aurangabad, by filing a Criminal Writ Petition under Article 226 of the Constitution of India, seeking a direction to the trial court or relevant authorities to grant the benefit of set-off.
- Issue: Whether a life convict is entitled to the benefit of set-off under Section 428 of the Cr.P.C. for the period of under-trial detention, and whether a Writ Petition under Article 226 is maintainable to grant such relief when the trial court has omitted or specifically refrained from granting it.
- Holding: Yes, the petitioner is entitled to the set-off. The Court held that Section 428 of the Cr.P.C. is a mandatory provision and the benefit cannot be denied even to life convicts. Furthermore, the petition under Article 226 is maintainable for this purpose.
- Reasoning: The Court relied on the Constitution Bench judgment in Bhagirath vs. Delhi Administration, which established that "imprisonment for life" is "imprisonment for a term" for the purpose of Section 428 Cr.P.C., making life convicts eligible for set-off. It further referred to the Bombay High Court's decision in Rajaram Kashinath Charoskar vs. State of Maharashtra, which held that the grant of set-off is a statutory mandate rather than a matter of judicial discretion. The Court reasoned that while the judiciary may omit such orders, the Executive Government is bound by law and policy to grant set-off. The Court brushed aside the State's objection regarding maintainability, clarifying that the High Court possesses the power under Article 226 to ensure the enforcement of statutory rights and correct such omissions, especially when the facts regarding detention are undisputed.
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