The Madhya Pradesh High Court has clarified that the period of custody undergone by an accused during remand for recording additional evidence under Section 391(4) of the CrPC must be counted toward the sentence imposed, even if the accused is later convicted in the same case. This ruling corrects a systemic error by jail authorities who excluded this critical period, resulting in unlawful prolongation of detention.
Background & Facts
The Dispute
The petitioner, Arun Tiwari, was convicted on 27.06.2019 by the Sessions Court, Khandwa, in Sessions Trial No. 199/2013. He is currently lodged in Central Jail, Jabalpur. The jail authorities calculated his sentence based only on the period of undertrial custody from 30.06.2016 to 27.06.2019, totaling 2 years, 11 months, and 28 days. However, they excluded a significant period of custody from 11.03.2022 to 02.09.2022, during which the case was remanded under Section 391(4) of the CrPC for recording additional evidence.
Key Facts
- The petitioner was arrested on 30.06.2016 and remained in custody throughout the trial and appeal process
- The Sessions Court delivered its conviction order on 27.06.2019
- On 11.03.2022, the appellate court remanded the case under Section 391(4) CrPC for recording additional evidence
- The petitioner remained in custody continuously from 11.03.2022 to 02.09.2022 during this remand period
- The trial court recorded additional evidence and returned the record to the appellate court on 02.09.2022
- The jail authorities’ chart dated 28.02.2026 omitted the 5 months and 21 days from 11.03.2022 to 02.09.2022
- The petitioner was also in custody from 24.06.2017 to 04.06.2023 in connection with another trial, but this period was not relevant to the calculation of his sentence in the present case
Procedural History
- 30.06.2016: Petitioner arrested and placed in custody
- 27.06.2019: Conviction by Sessions Court, Khandwa
- 11.03.2022: Case remanded under Section 391(4) CrPC for additional evidence
- 02.09.2022: Additional evidence recorded; case returned to appellate court
- 28.02.2026: Jail authorities issued custody calculation chart excluding 11.03.2022 to 02.09.2022
- 2026: Writ Petition No. 1236 of 2026 filed before the High Court of Madhya Pradesh at Jabalpur
Relief Sought
The petitioner sought correction of the custody calculation to include the period from 11.03.2022 to 02.09.2022 (5 months and 21 days), and immediate release if, upon recalculation, his sentence had been fully served.
The Legal Issue
The central question was whether the period of custody undergone by an accused during remand under Section 391(4) of the CrPC for recording additional evidence must be counted toward the sentence of conviction, even if the conviction preceded the remand.
Arguments Presented
For the Petitioner
The petitioner argued that the period from 11.03.2022 to 02.09.2022 was a continuous period of judicial custody directly linked to the same conviction. He relied on the Supreme Court’s decision in State of Maharashtra v. Najakat alias Mubarak Ali, which held that custody during any stage of proceedings related to a conviction must be credited against the sentence. He emphasized that exclusion of this period violated the principle of fairness and amounted to unlawful detention.
For the Respondent
The State contended that the period in question was not part of the original undertrial custody and was instead ancillary to a procedural remand. It argued that the jail authorities had correctly calculated only the period from arrest to conviction, and that the remand period was not statutorily mandated for credit. The State did not dispute the factual duration but challenged its legal relevance.
The Court's Analysis
The Court examined the nature of remand under Section 391(4) CrPC, which permits appellate courts to remand cases for additional evidence when the trial court’s findings are defective. The Court noted that during such remand, the accused remains in judicial custody, and the proceedings are a continuation of the same trial leading to the same conviction.
"The Apex Court in State of Maharashtra and Another Vs. Najakat alias Mubarak Ali, 2001 Cr.L.J. 2588 made it amply clear that the period spent in jail after the conviction in one case would be available for set off against imprisonment on account of conviction in any other case."
The Court held that the principle in Najakat applies even within the same case. If an accused is in custody during any phase of the proceedings - whether pre-trial, during trial, or during remand for additional evidence - that time must be credited against the sentence. The Court rejected the State’s argument that remand periods are procedural and non-creditable, stating that such a distinction would lead to arbitrary and unjust outcomes.
The Court emphasized that the right to credit for custody is not discretionary but mandatory under the rule of law. Excluding this period would effectively extend the sentence beyond what the law permits, violating Article 21 of the Constitution.
The Verdict
The petitioner succeeded. The Court directed the jail authorities to include the period of custody from 11.03.2022 to 02.09.2022 (5 months and 21 days) in the calculation of his sentence. Upon recalculation, if the petitioner has served the full term of his sentence, he shall be released forthwith, provided he is not detained in any other case. The State was directed to complete the recalculation and effect release within 14 days.
What This Means For Similar Cases
Custody During Remand Is Mandatory Credit
- Practitioners must now assert credit for all periods of judicial custody during remand under CrPC 391(4), regardless of whether the remand occurred before or after conviction
- Jail manuals and prison records must be revised to include remand periods as part of sentence computation
- Any omission of such periods constitutes unlawful detention and is subject to writ jurisdiction
Procedural Delays Cannot Be Used to Extend Sentences
- The State cannot exploit procedural delays or remands to prolong incarceration beyond statutory limits
- Courts must scrutinize custody calculations in habeas corpus and writ petitions with heightened vigilance
- Legal aid lawyers should routinely verify custody credits in all post-conviction cases, especially where remands occurred
Judicial Custody Is Not Distinguishable by Stage
- Whether custody is pre-trial, during trial, or during appellate remand, it is all part of the same judicial process
- The law does not permit fragmentation of custody periods to deny credit
- This ruling reinforces the principle that every day in custody must count toward the sentence, not against it
