Karnataka High Court
Manjunath @ Manju S/O Jambanna ... vs The State Of Karnataka on 27 November, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL REVISION PETITION NO.100118/2020
BETWEEN :
1. MANJUNATH @ MANJU
S/O.JAMBANNA AGASTAVAR,
AGE : 31 YEARS, OCC : COOLIE,
R/O.CHENDIYA VILLAGE,
TQ : DIST : KARWAR-581 324,
(UTTARA KANNADA).
2. MANJUNATH @ MANJU
S/O. HULIGEPPA GAVADI,
AGE : 22 YEARS, OCC : COOLIE,
R/O.CHENDIYA VILLAGE,
TQ : DIST : KARWAR-581 324,
(UTTARA KANNADA).
...... PETITIONERS
(BY SRI VISHNU BHAT, ADVOCATE)
AND :
THE STATE OF KARNATAKA,
R/BY KARWAR TOWN POLICE STATION,
KARWAR,
THROUGH STATE PUBLIC PROSECUTOR,
HIGH COURT BENCH, DHARWAR.
....RESPONDENT
(BY SRI RAMESH B.CHIGARI, ADVOCATE)
THIS REVISION PETITION IS FILED UNDER SECTION
397 READ WITH SECTION 401 OF CR.P.C. AND PRAYED TO
SET ASIDE THE JUDGMENT OF PRL. DISTRICT AND
SESSIONS JUDGE, KARWAR IN CRIMINAL APPEAL NO.
-2-
31/2019 DATED 20.02.2019, AND THE CONVICTION
ORDER PASSED BY CHIEF JUDICIAL MAGISTRATE,
KARWAR, IN C.C.NO.575/2015, DATED 22.06.2018 AND
PRAYED THAT THE PETITIONERS HAVE ALREADY
UNDERGONE THE SENTENCE OF PUNISHMENT AND ARE
ENTITLED TO AVAIL THE SET OFF BENEFIT UNDER
SECTION 428 OF CR.P.C. BUT THEY ARE STILL
LANGUISHING IN IMPRISONMENT.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING :
ORDER
This revision petition is preferred by accused Nos.1 and 2 being aggrieved by the Judgment of conviction and order of sentence passed by Chief Judicial Magistrate, Karwar in C.C.No.575/2015 vide order dated 22.06.2018 sentencing the accused for a period of two years each for the offence punishable under Section 457 of I.P.C. and liable to pay fine of Rs.2,000/- each, in default, to undergo further simple imprisonment for a period of two months each. Further, sentenced to undergo simple imprisonment for a period of one year each for the offence punishable under Section 380 of IPC and to pay fine of Rs.1,000/- each, in default to undergo further simple imprisonment for a period of one month each. This Judgment came to be confirmed by the -3- Principal District and Sessions Judge, Karwar U.K. in Criminal Appeal No.31/2019 vide order dated 20.02.2019, accused Nos.1 and 2 herein were given the benefit of Section 428 of Cr.P.C. for the period undergone during the period of enquiry and trial.
2. Though the matter is listed for admission, it is taken up for final disposal with consent of counsels for both sides.
3. Parties herein shall be referred to as per their status before the trial Court.
4. Brief facts leading to filing of this petition are as under :
On 30.11.2011 at about 3.00 a.m. during night hours accused Nos.1 and 2 committed lurking house trespass by entering into the house of complainant- Vinayak Chandramohan Kamat by breaking open the lock of the door of house with iron rod, hammer, screwdriver and chaana and committed theft of golden and silver ornaments, one silk saree and nokia mobile, -4- which were kept in a cupboard of the bed room. Accused Nos.1 and 2 committed offences punishable under Sections 457 and 380 read with Section 34 of IPC and it is alleged that accused No.3 committed an offence under Section 411 of IPC. The present petition is filed by accused Nos.1 and 2, and accused No.3 is not before this Court. Thereafter, the accused were arrested and produced before the Court and they pleaded not guilty and claimed to be tried, accordingly they were tried. It is stated that accused were arrested on 27.04.2015 in Crime No.151/2011.
5. In order to prove the guilt of accused, prosecution in all examined 14 witnesses and documents were marked Ex.Ps.1 to 23 and 2 material objects were marked as M.Os.1 and 2. On closure of evidence of prosecution, the statement of accused under Section 313 of Cr.P.C. was recorded. Wherein, accused denied all the incriminating evidence and circumstances against them. However, they did not adduce any evidence on their behalf. After going through the entire material, both oral and documentary, the trial Court came to the -5- conclusion that prosecution has proved the guilt of accused beyond all reasonable doubt and convicted accused Nos.1 and 2 for the offences punishable under Sections 457 and 380 of I.P.C. and convicted accused No.3 under Section 411 of IPC R/W Section 34 of IPC.
6. Aggrieved by the conviction, accused Nos.1 and 2/the petitioners herein challenged the same before the Appellate Court in Crl.A.No.31/2019. On re-appreciation and re-evaluation of the entire material evidence, the appellate Court came to the conclusion that the appeal was restricted only to grant of benefit under Section 428 of Cr.P.C. and held in the affirmative with regard to grant of benefit under Section 428 of Cr.P.C. The Appellate Court allowed the appeal in part. Wherein, the judgment of conviction and order of sentence passed by trial Court came to be affirmed. However, accused Nos.1 and 2 were provided the benefit under Section 428 of Cr.P.C. for the period undergone during the enquiry and trial. Accused Nos.1 and 2 are before this Court seeking to set aside the judgment of conviction passed by Prl. District and Sessions Judge, Karwar, Uttara Kannada in -6- Crl.A.No.31/2019 and the conviction in C.C. No.575/2015. Accused herein have also sought for the benefit of set off under Section 428 of Cr.P.C. as despite the order of the Appellate Court granting the set off, the accused are still languishing in imprisonment.
7. I have heard the learned counsel for the petitioners Sri.Vishnu Bhat and Sri.Ramesh B.Chigari, learned High Court Government Pleader for respondent- State.
8. It is contended by learned counsel for petitioners, judgment of conviction and order of sentence passed by trial Court and confirmed by the Appellate Court is contrary to material available on record and hence, the same requires to be set aside. It is further contended by learned counsel that both the Courts have not applied their mind in passing the impugned order. Hence, the same is perverse and vexatious.
9. Learned counsel further contends that his main argument before the Appellate Court was to grant the -7- benefit of set off under Section 428 of Cr.P.C. which is though granted is not specifically mentioned in the order, thereby forcing the petitioners to approach this Court in the present petition.
10. Learned counsel for petitioners restricts his arguments only to the second prayer i.e. to grant the benefit of set off under Section 428 of Cr.P.C, in the present case. On these grounds, he seeks to allow the petition with regard to granting of set off under Section 428 of Cr.P.C.
11. Per contra, learned High Court Government Pleader for respondent-State contends that the judgment of conviction and order of sentence passed by the trial Court and confirmed by the Appellate Court is perfectly in accordance with law, material evidence on record and the same does not require any interference by this Court. Learned Government Pleader further contends that the relief sought for by petitioners herein before the Appellate Court has been partly granted with regard to the benefit of set off under Section 428 of -8- Cr.P.C. and hence, there is no requirement of this Court to entertain the present petition. On these grounds, he seeks to dismiss the petition as the relief sought for is already granted by the Appellate Court.
12. Having heard the learned counsel for petitioners and respondent-State, the short points for consideration arise before this Court are
i) Whether the petitioners are entitled to benefit of set off under Section 428 of Cr.P.C. and whether the same is to be granted?
ii) What order?
13. To answer the above, it is necessary to have a cursory look at the facts of the case with regard to the date of arrest and the conviction by the trial Court. In the present case, it is not in dispute that initially both the accused came to be arrested on 30.09.2014 and since then they are in judicial custody. It is pertinent to mention that accused were arrested in Crime No. 98/2014 and thereafter they were convicted for the offences punishable under Sections 457 and 380 of IPC -9- in C.C.No.394/2014. It is submitted that there is no appeal or revision preferred against the judgment of conviction in C.C.No.394/2014. It is a matter of fact that thereafter accused came to be implicated in several cases for the offences punishable under Sections 457 and 380 of IPC and other provisions of law in which accused have been convicted for those offences separately.
14. In the present case, accused Nos.1 and 2 came to be arrested on 27.04.2015 in Crime No.151/2011 in C.C.No.575/2015 in which case accused again remained in judicial custody from the date of arrest i.e. from 27.04.2015. In C.C.No.575/2015 accused came to be convicted and sentenced to imprisonment for a period of two years each for the offence punishable under Section 457 of IPC and was also liable to pay fine of Rs.2,000/- each. In default, to undergo simple imprisonment for a period of two months each. Accused Nos.1 and 2 were also convicted for offence punishable under Section 380 of IPC and sentenced to undergo simple imprisonment for a period -10- of one year and to pay fine of Rs.1,000/- each. In default, to undergo simple imprisonment for a period of one month each. Therefore, in all the accused Nos.1 and 2 were to undergo imprisonment for a period of three years for both the offences stated above.
15. Aggrieved by the conviction and sentence, accused preferred an appeal before the Appellate Court which confirmed the order of conviction and sentence. However, passed an order granting the benefit of set off under Section 428 of Cr.P.C. for the period already undergone during the enquiry and trial. The grievances of petitioners/accused is that as the accused were arrested on 27.04.2015 and the conviction order came to be passed on 22.06.2018, convicting the accused for aforesaid offences totally for a period of three years, the petitioners/accused having held undergone the term of imprisonment they are entitled to the benefit of set off as contemplated under Section 428 of Cr.P.C. and that the accused are in judicial custody for more than the period of sentence imposed by the trial Court. The -11- accused are languishing in judicial custody for a period of about three years one month as on date.
16. Learned Government pleader brings to the notice of this Court that the accused are habitual offenders and they have been convicted for similar offences totally amounting to 15 cases in different crime numbers. Out of these 15 cases, apart from 4 cases in which they have been acquitted in all other cases they have been convicted for similar offences. It is further submitted that this period of benefit of set off under Section 428 of Cr.P.C. cannot be granted in all other cases where accused have approached the appellate Court. It is vehemently contended by learned Government Pleader that the set off benefit as contemplated under Section 428 of Cr.P.C. is only applicable to same cases in which they have been arrested and will not get benefit in multiple crime numbers in different cases. Hence, he contends that the benefit is already provided herein for set off by the appellate Court.
-12-
17. In this view of the matter, it is essential to have a look at the provisions of Section 428 of Cr.P.C. which reads as under:
"428. 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 1 , 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."
18. From the wording of Section 428 of Cr.P.C., it is crystal clear that it is the period of detention which the section permits to be set off. The term of imprisonment imposed on the accused upon conviction must be during investigation, enquiry or trial in the same case in which he has been convicted. Therefore, on perusal of this Section, it unambiguously indicates that only such accused is entitled to benefit of that period of detention which he has undergone during the investigation, enquiry or trial of the "same case". But, it -13- does not contemplate the benefit of set off the period of detention during the investigation, enquiry or trial in any other cases. The words period of detention, if any, undergone by him during the investigation, enquiry or trial of the same case are important to indicate the paramount intent of legislature to protect the interest of under trial prisoners by giving them the benefit of set off for that period in "that case" at the conclusion of trial.
19. Therefore, in the present case, it is not in dispute that the accused were arrested on 27.04.2015 in the Crime No.151/2011 which concluded in conviction in C.C.No.575/2015 by order dated 22.06.2018 convicting and sentencing the accused for a total period of three years. But, the accused were arrested and are in detention in judicial custody for a period of about three years one month. Therefore, the detention of accused in this present case is more than the period of sentence of imprisonment awarded by both the courts. Hence, the appellate Court had rightly held that the accused -14- are entitled for the benefit under Section 428 of Cr.P.C. and partly allowed the appeal.
20. It is contention of petitioners that they have been in detention for more than the period of sentence of imprisonment awarded by both Courts and therefore, the appellate Court has rightly held that accused are entitled for the benefit under Section 428 of Cr.P.C. and partly allowed the appeal. But however, appellate Court has not made a specific order to grant the benefit of set off and release of the petitioners for having already undergone the detention during period of trial and investigation and hence there is no clarity in the order passed by the appellate Court.
21. Petitioners/accused herein no doubt has been in detention for a period of more than the period of punishment and imprisonment ordered by the trial Court. However, in order to grant the benefit of set off under Section 428 of Cr.P.C. as held in the case earlier between the same parties in Criminal Petition No. 100115/2020 in which accused, the petitioners were -15- arrested in Crime No.89/2012 on 27.04.2015 in which case charge sheet came to be filed in C.C.No.571/2015. Therefore, accused were remanded to judicial custody from the date of arrest i.e., 27.04.2015 in C.C.No.571/2015. Hence, the benefit of set off could be granted to the petitioners only in the case in which they have been arrested and detained in custody for that particular case. They cannot be provided the benefit of set off in all cases in which they have been convicted.
22. A plain reading of Section 428 of Cr.P.C., makes it clear that the period of detention which the Section permits to be set off. The term of imprisonment imposed on the accused upon conviction must be during the investigation, enquiry or trial in connection with the same case in which he has been convicted. Therefore above provision contemplates that petitioner/accused will not be entitled to the benefit of set off of the period of detention during investigation/enquiry or trial in any other case. This section, however, does not intend to give any benefit or bonus to an accused guilty of commission of more than one crime by treating the -16- period of detention during investigation, enquiry and trial in one case as that period in the other cases also for the purposes of set-off in the sentence.
23. Therefore, in order to understand the meaning and definition of "same case". Let us see dictionary meaning of the word "same", the meaning of word "same" "is identical; referring to a person or thing just mentioned; the same thing as previously mentioned. It generally refers to the last preceding antecedents; one and the same; not distinct. Generally speaking the "same case" would thus mean "same transaction" for which the accused has been tried. Two different criminal cases, therefore cannot be treated to be the "the same case" in relation to an accused for the purposes of determining the applicability of Section 428 of Cr.P.C.
24. It is seen that the petitioners/accused herein are tried for various offences in separate trials. Therefore, the petitioners would not be entitled to the benefit of set off under Section 428 of Cr.P.C. In the present case, petitioners have been convicted in several -17- cases for several offence of theft and convicted separately by way of separate trials. Hence, they cannot claim double benefit under Section 428 of Cr.P.C. i.e., the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing later offence as well. Therefore, the period of detention during trial and investigation undergone by the accused herein, they would be entitled for the benefit of set off only in the case in which they have been arrested for which already this Court has passed an order in Cril.R.P. No.100115/ 2020 granting benefit of set off. I am of the considered opinion that the benefit sought for by petitioners for grant of set off under Section 428 of Cr.P.C. cannot be granted in the present case for the aforesaid reasons. Accordingly, I pass the following order :
ORDER Petition is dismissed.
Sd/-
Ckk/- JUDGE