Karnataka High Court
Sri. Suliaman @ Mohisin @ Azeemulla vs State Of Karnataka on 17 July, 2017
Bench: Ravi Malimath, John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 17TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.565 OF 2011
BETWEEN:
SRI SULIAMAN
@ MOHISIN @ AZEEMULLA
@ SAMEER,
S/O HUSSAIN SAB,
AGED ABOUT 29 YEARS,
R/AT SHUKRAVARAPET,
LONDA, KHANAPURA TALUK,
BELAGAVI DISTRICT. ... APPELLANT
(BY SRI H.P.LEELADHAR, ADVOCATE)
AND:
STATE OF KARNATAKA
BY MADIVALA POLICE STATION,
THROUGH CBI,
BENGALURU. ... RESPONDENT
(BY SRI P.PRASANNA KUMAR, SPECIAL PUBLIC
PROSECUTOR)
2
*****
THIS CRL.A IS FILED UNDER SECTION 374(2) OF THE
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT 14.9.2010 /
18.9.2010 PASSED BY THE SPL.JUDGE, XXXV ADDL.CITY
CIVIL & SESSION JUDGE, BENGALURU, IN S.C.NOS.643 OF
2003, 352 OF 2004 AND 353 OF 2004 - CONVICTING THE
APPELLANT / ACCUSED NO.23 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 259 OF IPC AND SENTENCED
HIM TO UNDERGO RIGOROUS IMPRISONMENT FOR FIVE
YEARS AND PAY A FINE OF RS.10,000/- IN DEFAULT OF
PAYMENT OF FINE, HE SHALL UNDERGO FURTHER R.I. FOR
THREE MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 259 OF IPC. THE ABOVE SENTENCE ORDERED TO
RUN CONCURRENTLY EXCEPT THE SENTENCE IMPOSED FOR
DEFAULT IN PAYMENT OF FINE. THE APPELLANT / ACCUSED
PRAYS THAT HE BE ACQUITTED.
THIS CRL.A. COMING ON FOR ORDERS THIS DAY, RAVI
MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT
The Appellant, namely Accused No.23 in S.C.No.352 of 2004 before the Special Judge, XXXV Additional City Civil and Sessions Judge, at Bengaluru is aggrieved by the Judgment and Order of conviction dated 14.09.2010 and the order of conviction dated 18.09.2010 sentencing him to undergo rigorous imprisonment of five years for the offence punishable under Sections 259 and to pay a fine of 3 Rs.10,000/- and in default of payment of fine to undergo further rigorous imprisonment of three months.
2. The trial court while passing the judgment in respect of set off under Section 428 Cr.P.C., so far as accused No.23 is concerned, has discussed in detail at page 971 and 972 and has observed at page 980, as follows,-
"1. Accused Nos.1, 2, 11, 21 to 24 and 26
are not entitled for set off under Section 428 Cr.P.C.".
3. Learned counsel for the appellant contends that the appellant who was arrested and detained in connection with Delhi case in Crime No.604/2002, was secured in this case by body warrant on 30.10.2003. The judgment of conviction and sentence was pronounced on 14.09.2010 and 18.09.2010 respectively. He preferred the instant appeal on 02.06.2011. This Court, by the order dated 13.07.2011 enlarged the appellant on bail and the 4 sentence was suspended. Therefore, it is contended by the appellant that the period of five years, which was awarded by the Trial Court, has already been undergone, including the default sentence, nothing further survives for consideration in the appeal.
4. The learned Special Public Prosecutor does not dispute the above facts.
5. The counsel for the appellant restricts his arguments only to the plea of set off and not on merits.
6. The appellant has already undergone the sentence awarded on him, including the default sentence.
7. In view of the above facts and following the judgment of the Hon'ble Supreme Court in the case of STATE OF MAHARASHTRA & ANOTHER VS. NAJAKAT ALIA MUBARAK ALI REPORTED IN (2001) 6 SCC 311, the Appeal is disposed off. The appellant/accused shall be set at liberty forthwith in this case, if not required in any other 5 case/s. The bail bond shall stand cancelled and the surety stands discharged.
Registry is directed to communicate this order to the Jail authorities to do the needful.
SD/- SD/-
JUDGE JUDGE
JJ