Period of detention undergone by the accused to be set off againstthe sentence or imprisonment
Section 428 of the Code of Criminal Procedure, 1973 deals with period of detention undergone by the accused to be set off againstthe sentence or imprisonment. Period of detention undergone by the accused to be set off against the sentence or imprisonment. The Act came into force on 01 Apr 1974. Repealed by section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
Period of detention undergone by the accused to be set off against the sentence or imprisonment. 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
1 Ins. by Act 45 of 1978, s. 31 (w.e.f. 18-12-1978).
imprisonment on such conviction shall be restricted to the remainder, any, of the term of imprisonment imposed on him.
Section 428, The Code of Criminal Procedure, 1973 (Act 2 of 1974).
Now in the Bharatiya Nagarik Suraksha Sanhita
BNSS 468 Period of detention undergone by accused to be set off against sentence of imprisonment Text carried over almost unchanged 91%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Atul Manubhai Parekh v. Central Bureau of Investigation
Court's Decision & Legal Precedent
Judgment of Main Case order-1.pdf 2009-11-24 DATE VERIFIED. Kabir/Joseph. Crl MP in Crl A 164/2004. CrPC 428 set-off is only pre-conviction detention in the same case; imprisonment already undergone as a convict in other cases cannot be reused (distinguishes Najakat majority). Map crpc 428 + BNSS 468 successor (near-identical 0.9122). Do not pad crpc 427 or ipc 120B. Najakat majority PDF is not indexed (order-3/4 are Sethi dissent only).
On this section: CrPC 428 set-off is only the pre-conviction detention in that case; time already served as a convict in other cases cannot be reused (Atul Manubhai Parekh).
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Ramaiah @ Rama vs State of Karnataka
Court's Decision & Legal Precedent
When essential ingredients of a dowry-related criminal offence, particularly the demand for dowry and subsequent cruelty or harassment for non-payment thereof, are not established beyond reasonable doubt through credible evidence, conviction under Sections 3 and 4 of Dowry Prohibition Act, Section 498-A, and Section 304-B IPC cannot be sustained. The presumption under Section 113-B of the Indian Evidence Act can only be invoked after the prerequisite of proved dowry-related cruelty or harassment is satisfied. When an appellate court reviews an acquittal and finds that two views are reasonably possible on the evidence, with one view being favourable to the accused as taken by the trial court, the appellate court should not disturb such acquittal unless the trial court's reasoning is clearly unreasonable or vitiated by manifest illegality. Courts must scrutinize witness credibility carefully when inconsistencies exist between original complaint and later testimony, and when significant delays in lodging FIR lack satisfactory explanation.
On this section: Remission of periods of imprisonment; Appellant granted benefit of this section for time already served
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Pathan Hussain Basha vs State of A. P
Court's Decision & Legal Precedent
When a woman dies unnaturally within seven years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or relatives for or in connection with demand for dowry, all ingredients of Section 304B IPC are satisfied. The 'soon before her death' should be interpreted using the concept of reasonable time based on facts and circumstances, not as a narrow strict period. Once the prosecution establishes these ingredients through reliable evidence, a deeming fiction under Section 113B Evidence Act presumes the accused caused the dowry death, shifting the burden to the accused to prove otherwise. Mere denial without cogent evidence cannot discharge this burden. However, sentencing discretion remains with the court to consider humanitarian factors and time served.
On this section: Applied to set off remand period undergone by accused persons against their sentence, as is standard practice in criminal cases.
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Madhu vs State of Kerala
Court's Decision & Legal Precedent
When Circumstantial Evidence Is The Sole Basis For Conviction In A Criminal Case, The Prosecution Must Establish A Complete Unbroken Chain Of Events Leading To The Only Inescapable Conclusion That The Accused Committed The Crime. If The Main Evidence Relied Upon (Confessional Statements) Is Inadmissible Because It Did Not Lead To Discovery Of Unknown Facts (As The Public Already Knew The Location Before The Confessions), And The Supporting Circumstantial Evidence (Eyewitness Testimony, Motive Inconsistencies, Medical Findings) Is Contradictory, Weak, Or Unreliable, The Conviction Cannot Stand. In Such Cases, The Accused Must Be Acquitted As The Prosecution Failed To Meet The Burden Of Proof Beyond Reasonable Doubt.
On this section: Set-Off Of Period Of Detention During Trial - Trial Court Directed Set-Off Of Detention Period Against Sentence - Not Directly Addressed In Appeal But Relevant To Sentencing Principles
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State of Kerala vs Anilachandran @ Madhu
Court's Decision & Legal Precedent
Where the First Information Report exhibits signs of tampering (deletion of signatures), is sent with unexplained delay to the Magistrate in violation of Section 157 of CrPC (which mandates sending 'forthwith'), and corroborated by inconsistencies in eyewitness testimony, the prosecution fails to meet its burden of proving guilt beyond reasonable doubt. The inability of the accused to prove an alibi does not relieve the prosecution of its fundamental duty to establish guilt beyond reasonable doubt through reliable and credible evidence. The genesis of the criminal incident must be established for conviction to be safe, even if the accused's participation in the actual assault is accepted.
On this section: Set off of sentences - Applied for concurrent running of sentences in trial court judgment
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Dashrath Singh vs State of U. P
Court's Decision & Legal Precedent
In criminal appeals, the appellate court possesses the power to modify a conviction from one section of the IPC to another when the evidence sustains criminal liability but under a different section that more accurately reflects the nature and gravity of the offence. Such modification is permissible when the legal ingredients of the modified section are satisfied by the facts proved. However, this power must be exercised with restraint and only when the modified section accurately captures the criminal conduct established by evidence.
On this section: Calculation and set-off of period of imprisonment undergone during investigation and trial against the final sentence
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Narayana vs State of Karnataka
Court's Decision & Legal Precedent
An appellate court, while generally restricting interference with acquittals to cases of substantial and compelling reasons, retains the inherent power to review evidence and determine whether a trial court's acquittal was justified on the evidence. Where the trial court's acquittal is completely without basis, interference is called for. In corruption cases involving acceptance of gratification by a public servant, credible direct evidence from multiple witnesses regarding the demand and recovery of marked currency, combined with the statutory presumption under Section 20 of the Prevention of Corruption Act 1988, constitutes sufficient proof of guilt beyond reasonable doubt. The hostile testimony of some independent witnesses does not necessarily negate the credibility of other unchallenged witnesses whose evidence remains consistent. Minor discrepancies in witness accounts recorded over extended periods can be reasonably explained by the time lapse and do not undermine the core prosecution narrative.
On this section: Benefit of pre-conviction custody; appellant granted benefit under this section in sentence calculation
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Raveendran vs State of Kerala
Court's Decision & Legal Precedent
The warrant of commitment issued by a Judicial Magistrate must specify the period of remand for which a convicted person is entitled to set off under Section 428 Cr.P.C. If the warrant fails to specify this period, the High Court has the jurisdiction to intervene and direct the lower court to rectify the warrant by calculating and specifying the set off period. The High Court's intervention ensures that the prisoner receives the benefit of the set off to which he is legally entitled, thereby protecting the prisoner's rights in sentence computation.
On this section: Primary statutory provision under which the petitioner sought set off; the court found that the petitioner was entitled to set off under this section but the warrant of commitment did not specify the period
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Patel Rameshore Baburao vs The State of Manipur
Court's Decision & Legal Precedent
When an accused person kills his spouse upon discovering her infidelity, and such discovery causes grave and sudden provocation leading to loss of self-control, the offense falls within Exception 1 to Section 300 IPC, reducing the conviction from murder to culpable homicide not amounting to murder under Section 304 Part II IPC. The mental element required is knowledge that the act is likely to cause death, not intention to cause death. The absence of premeditation and the sudden nature of the act in response to grave provocation are significant factors in determining the appropriate conviction and sentence.
On this section: Set-off of period of detention; the court applied this section to set off the period already undergone in custody against the reduced sentence
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Shahid Riza @ Raju vs State (NCT Of Delhi)
Court's Decision & Legal Precedent
An accused can be convicted under a section different from the one charged if: (1) The facts alleged in the charge support the conviction under the different section; (2) The accused had a fair trial and was fully aware of the facts and allegations against him; (3) The accused was given full opportunity to cross-examine witnesses and defend himself; (4) No prejudice or miscarriage of justice is occasioned by the charge framing irregularity. In cases of acid attack causing grievous burn injuries without intention to cause death, conviction should be under Section 326 IPC (causing grievous hurt by corrosive substance) rather than Section 307 IPC (attempt to murder), even if charged under Section 307, provided the above conditions are satisfied.
On this section: Adjustment of period undergone in custody during investigation and trial - referenced for potential benefit to appellant.
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Senaul S/o. Afsar Shaikh vs State of Gujarat
Court's Decision & Legal Precedent
When a person is convicted in two separate trials for two distinct offences under two different enactments arising from the same transaction or the same basic criminal act, the court has discretion under Section 427(1) of the Criminal Procedure Code to direct that the sentences shall run concurrently rather than consecutively, particularly where the evidence in both cases is substantially the same and the offences are intimately connected. The exercise of this discretion should be guided by the totality principle, considering the peculiar facts and circumstances of the case, the nature of the offences, the duration of litigation, and the principle that Section 427 is intended to provide amelioration to the prisoner. The single transaction rule applies even when the offences are under different enactments, provided the underlying criminal act is the same.
On this section: Set off of period of detention during investigation, inquiry or trial against sentence of imprisonment; related to sentencing principles
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Rafi Ahmed vs State of Karnataka
Court's Decision & Legal Precedent
When an accused person has undergone pre-conviction detention for a period equal to or exceeding the sentence awarded by the trial court, the conviction and sentence may be affirmed, but the accused should be set at liberty forthwith as they have already served their sentence, following the principle established in State of Maharashtra v. Najakat Alia Mubarak Ali (2001) 6 SCC 311.
On this section: Provision regarding set-off of detention period against sentence - central issue in the appeal
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Shantappa S/o Baburao Nimbago ANR vs The State of Karnataka
Court's Decision & Legal Precedent
Navigating a vessel with known physical defects (perforations) and overloading it beyond capacity, resulting in death, constitutes a rash and negligent act punishable under Sections 280 and 304A of the IPC.
On this section: Set off of period of detention undergone by the accused.
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Abilio Dsouza vs Adarsh Yeshwant Shet Mayekar
Court's Decision & Legal Precedent
A sole proprietor can file a criminal complaint under Section 138 of the Negotiable Instruments Act in his individual capacity for cheques issued in the name of his sole proprietorship concern, as a sole proprietorship does not constitute a separate juristic person and does not fall within the ambit of Section 141 of the NI Act. The complaint is maintainable when the sole proprietor is the sole beneficiary and manager of the proprietorship account, and the cheques are issued in discharge of a legally enforceable debt. All ingredients of Section 138 NI Act are satisfied when: (i) valid cheques are drawn on the account of the drawer; (ii) cheques are for payment of money; (iii) cheques are issued in discharge of debt or liability; (iv) cheques are returned unpaid; and (v) demand notice is served and payment is not made within 15 days. The presumption under Section 139 NI Act applies unless rebutted by the accused.
On this section: Referenced for calculation of period of detention undergone during trial for purpose of sentence
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Bhola Nath vs State of N.c.t. of Delhi
Court's Decision & Legal Precedent
Where an appellant has already undergone substantial incarceration during investigation, trial, and appeal pendency, and there are no prior criminal antecedents or subsequent criminal activity, the period of incarceration already undergone may be treated as the punishment meted out, and the sentence may be modified accordingly to meet the ends of justice, particularly when significant time has elapsed since the commission of the offence.
On this section: Set-off of period of incarceration during investigation and trial - applied to grant benefit of period already undergone to appellant; directed that all sentences run concurrently
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Shantappa S/o Baburao Nimbago ANR vs The State of Karnataka
Court's Decision & Legal Precedent
When a boat operator or vessel owner fails to maintain a vessel in a fit condition, overloads it beyond capacity, and negligently navigates it without taking proper precautions or responding to safety concerns raised by passengers, thereby causing deaths, such conduct constitutes the offense of rash navigation under Section 280 IPC and death by negligence under Section 304A IPC. The 'act of God' defense is not available when the negligence of the operators is the proximate cause of the deaths. The standard of care requires operators to visualize potential dangers arising from vessel unfitness and overloading and to take appropriate preventive measures.
On this section: Provides for set-off of period of detention during trial against the sentence of imprisonment, which was granted as a benefit to the appellants.
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Questions about Section 428
What have the courts held on Section 428 of the Code of Criminal Procedure?
Atul Manubhai Parekh v. Central Bureau of Investigation (24 Nov 2009) is the leading judgment on this section among those set out below: CrPC 428 set-off is only the pre-conviction detention in that case; time already served as a convict in other cases cannot be reused (Atul Manubhai Parekh). Another 15 judgments on this section are set out below, 7 of them from the Supreme Court. They run from 2004 to 2025.
How do I find court cases under Section 428 of the Code of Criminal Procedure?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: CRPC 428, section 428 CRPC, section 428 of the Code of Criminal Procedure. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 16 reported judgments on this section are set out on this page, beginning with Atul Manubhai Parekh v. Central Bureau of Investigation (24 Nov 2009).
What should I read with Section 428 of the Code of Criminal Procedure, and has it changed?
For anything done on or after 1 July 2024 the provision to read is BNSS 468 (Period of detention undergone by accused to be set off against sentence of imprisonment), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 428 of the Code of Criminal Procedure come into force?
Section 428 of the Code of Criminal Procedure, cited as CRPC 428, came into force on 01 Apr 1974, having been enacted on 25 Jan 1974. It is no longer in force.
Other sections of this Act
- 320. Compounding of offences1554 words
- 167. Procedure when investigation cannot be completed in twenty four hours1005 words
- 220. Trial for more than one offence962 words
- 360. Order to release on probation of good conduct or after admonition804 words
- 2. Definitions799 words
- 198. Prosecution for offences against marriage774 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Recovered from the consolidated text published by India Code (item 330a1099-77ad-4a2e-b22a-769b33398f9e). This page is not a substitute for legal advice.