Karnataka High Court
State Of Karnataka vs Badruddin @ Badru @ Shanal on 5 July, 2017
Bench: Ravi Malimath, John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 5TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REVISION PETITION NO.1042/2010
BETWEEN:
STATE OF KARNATAKA
(UPPARPET POLICE STATION,
BENGALURU)
THROUGH CENTRAL BUREAU OF
INVESTIGATION ... PETITIONER
(BY SRI. P. PRASANNA KUMAR, SPECIAL PUBLIC
PROSECUTOR)
AND:
1. BADRUDDIN @ BADRU @
SHANAL JAMEDAR @ AZARUDDIN
@ HAZARUDDIN,
S/O KHUTBUDDIN, MAJOR,
R/AT KATTE PLOT, NEW NAIKGALLI,
BEHIND BAHER GALLI, KHANAPUR,
BELAGAVI DISTRICT.
2. RAFI AHMED @ RAFIK AHMED @
SACHIN @ SACHIN SAXENA,
S/O ISMAIL AHMED, MAJOR,
NO.49, 1ST CROSS, MUNESHWARNAGAR,
ARABIC COLLEGE ROAD,
BENGALURU.
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3. ANEES KHAN @ ANEES @
ADIL SAYED AFSAR,
S/O REHMAN KHAN,
MAJOR, R.K. TAILORS,
CHAMUNDINAGAR,
R.T.NAGAR POST,
BENGALURU.
4. ILIYAS AHMED,
S/O BADAMI ABDUL SATTAR,
MAJOR, MUSHANNAVAR CHAWL,
JAI BHEEMNAGAR,
DHARWAD DISTRICT.
5. ABDUL KAREEM TELGI @
KAREEM LALA @ LALA @ TELGI.A.K.,
S/O LAD SAB TELGI,
MAJOR,
RESIDING AT NO.5,
I FLOOR, SHIRIN MANZIL,
WALTON ROAD, COLOBA,
MUMBAI.
6. L. BYROJI RAO @ MURALI @ CHETAN
@ RAO @ MD.REHAN,
S/O LAKSHMAN RAO,
MAJOR, NO.36, 5TH MAIN,
9TH CROSS, KRISHNAPPA BLOCK,
GANGANAGAR,
BENGALURU
7. WAZEER AHMED SALIK @
MD.SALIK @ SHOUKATH ALI,
S/O ABDUL RASHEED,
MAJOR,
NO.10, SRI RANGA NILAYA,
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SAPTHAGIRI EXTENSION,
TUMAKURU. ... RESPONDENTS
(BY SRI. AMAR CORREA, ADVOCATE FOR R1 - R3;
SRI. G.K. RAJANNA, ADVOCATE FOR R4;
SRI. M.T. NANAIAH, SENIOR ADVOCATE APPEARING
A/W SRI. BALASUBRAMANYA, ADVOCATE FOR R5;
SRI. SATISH V, ADVOCATE FOR R6;
SRI. YOUNOUS ALI KHAN, ADVOCATE FOR R-7)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE
THAT PORTION OF THE ORDER DATED 10.02.2010/17.02.2010
PASSED BY THE SPL.JUDGE. XXXV. ADDL. CITY CIVIL & S.J.,
BENGALURU IN S.C.NO.9/01 AND OTHER CONNECTED CASES
AGAINST THE RESPONDENTS HEREIN AND IN ITS PLACE, THE
ORDER PERMISSABLE UNDER LAW BE PASSED IN ACCORDANCE
WITH THE LAW LAID DOWN BY THE APEX COURT IN (2010) 1
SCC (CRL) 859.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ORDERS, THIS DAY, RAVI MALIMATH., J., DELIVERED THE
FOLLOWING:
ORDER
This revision petition is filed by the Complainant - State against Accused Nos.1, 4, 6, 12, 13, 14 and 18 in S.C.No.9 of 2001 and connected matters, i.e., S.C. No.31 of 2004, S.C. No.430 of 2002, etc., being aggrieved by the portion of the order dated 10.02.2010 & 17.02.2010 passed by the Special Judge, XXXV Additional City Civil and Sessions Judge, at Bengaluru with regard to the order 4 under Section 428 Cr.P.C., pertaining to set off in respect of the above accused/respondents.
2. The primary contention of the counsel for the appellant is that the date of custody has been reckoned as that of custody of the respondents in other cases and not the one undergone by them as an under-trial prisoner and therefore, the body warrant that has been issued in the present sessions case should only be taken into consideration for ordering the set off for the respondents.
3. In this case, the respondents 1, 2, 3, 4, 6 & 7, who are accused Nos.1, 4, 6, 12, 14 & 18 are sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.10,000/- for each of the offences punishable under Sections 255, 258, 420 and 467 IPC read with Section 120B of IPC and in default of payment of fine, each of the accused to undergo further rigorous imprisonment for 3 months for each of the above four offences. Respondent No.5, who is accused No.13 in this case is sentenced to undergo rigorous imprisonment for 10 years and to pay 5 fine of Rs.50,000/- for each of the offences punishable under Section 255 and 467 IPC read with Section 120B of IPC and to undergo rigorous imprisonment for 7 years and to pay fine of Rs.50,000/- for each of the offences punishable under Section 258 and 420 IPC read with Section 120B of IPC and in default of payment of fine for each offences, to undergo further rigorous imprisonment for one year for each of the above four offences. The sentences were ordered to run concurrently.
4. The trial court while passing the judgment, so far as these respondents, who are accused Nos.1, 4, 6, 12, 13, 14 & 18 are concerned, in respect of set off has discussed in detail at pages 744 to 750 and has observed at page 756 to 760, as follows:-
"1. The Accused No.1/Badruddin is entitled for set off for a period from 19.8.2000 to 17.5.2001 and from 6.10.2002 to till this date. (In all comes to 8 years 1 month and 12 days. However, set off period limited to 7 years i.e., total period of sentence of imprisonment required to undergo by him as above for all the 6 above offences on account of ordering to run such period of imprisonment concurrently). xxx xxx Accused No.4/Rafi Ahmed is entitled for set off for a period from 19.8.2000 to 17.5.2001 and from 6.10.2002 to till this date. (In all comes to 8 years 1 month and 12 days. However, the set off period limited to 7 years i.e., total period of sentence of imprisonment required to undergo by him as above for all the four offences on account of ordering to run such period of imprisonment concurrently).
xxx Accused No.6/Anees Khan is entitled for set off for a period from 19.8.2000 to 11.5.2001 and from 23.4.2007 to till this date. (In all 3 years, 6 months and 20 days). xxx xxx xxx xxx xxx Accused No.12/Iliyas Ahmed is entitled for set off for a period from 30.11.2002 to till this 7 date. (In all 7 years 2 months and 17 days. However, the set off period limited to 7 years i.e., total period of sentence of imprisonment required to undergo by him as above for all four offences on account of ordering to run such period of imprisonment concurrently).
xxx Accused No.14/L.Byroji Rao is entitled for set off for a period from 23.8.2000 to 10.5.2001, 6.10.2002 to 11.5.2009 and from 10.2.2010 to 17.2.2010. (In all 7 years 4 months and 12 days. However, set off period limited to 7 years i.e., total period of sentence of imprisonment required to undergo by him as above for all the above offences on account of ordering to run such period of imprisonment concurrently).
xxx xxx xxx Accused No.18/Wazeer Ahmed Salik is entitled for set off for a period from 12.2.2002 to till this date. (In all 8 years and 6 days. However, set off period limited to 7 years i.e., total period of sentence of four offences on 8 account of ordering to run such period of imprisonment concurrently). xxx xxx ".
5. (a) Sri.Amar Correa, learned Counsel for respondents 1 to 3 restricts his arguments to set-off under Section 428 of Cr.P.C and not on merits. He submits that the respondent No.1/Accused No.1-Badruddin and respondent No.2/Accused No.4-Rafiq Ahmed were arrested in this case on 19.08.2000 and remained in judicial custody till 17.5.2001, the date on which they were released on bail. Subsequently, they were arrested on 06.10.2002 in Crime No.1100/2002 by Madiwala Police, which was in trial in S.C.643/2003 and remained in custody till the date of order of sentence in this case. Similarly, respondent 3/Anees Khan was arrested in this case on 30.11.2002 and since then he was in custody till the date of order of sentence in the instant case, i.e., 17.02.2010. Challenging the impugned Judgment, respondent No.1/Badruddin has preferred Crl.A.743 of 9 2011 before this Court on 15/7/2011. He had obtained bail in a similar case in Crl.A.684/2011 on 11/8/2011. Challenging the impugned judgment, respondent No.3/Anees Khan has preferred, Crl.A.1387 of 2012 before this Court on 17/12/2012 and was granted bail on 4/3/2013. Counsel submits that respondent No.2/Rafi Ahmed has preferred, Crl.A.329 of 2011 before this Court challenging the Judgment & Order passed in S.C.643 of 2003 on 17/3/2011 and was granted bail on 8/4/2011 in the said case. Further, the Counsel submits that since these respondents/accused Nos.1, 4 & 6 have already served the sentence imposed on them, including the default sentence, nothing further survives for consideration against these respondents and the appeal as against these respondents be dismissed.
(b) Sri.Rajanna, learned Counsel for respondent No.4/accused No.12 - Iliyas Ahamed submits that the respondent No.4 was arrested on 19.08.2000 and remained in custody till the date of order of sentence in this case, i.e., on 17.02.2010. He submits that this 10 respondent has preferred Crl.A.511 of 2011 before this Court challenging the Judgment & Order in S.C.643 OF 2003 on 20/5/2011 and was granted bail on 17/6/2011 in the said appeal. He further submits that since this respondent has already served the sentence imposed on him, including the default sentence, nothing further survives for consideration and the appeal as against this respondent be dismissed.
(c) Sri.Satish, learned Counsel for respondent No.6/Accused No.14 - L.Byroji Rao submits that the respondent No.6 was arrested on 23.08.2000 and remained in judicial custody till 10.5.2001 the date on which he was released on bail in this case. Subsequently, he was arrested on 06.10.2002 in Crime No.1100/2002 by Madiwala Police, which was in trial in S.C.643/2003 and remained in custody till 11.05.2009 when the body warrant was recalled. He further submits that since this respondent has already served the sentence imposed on him, including the default sentence, nothing further 11 survives for consideration and the appeal as against this respondent be dismissed.
(d) Sri.Younus Ali Khan, learned Counsel for respondent No.7/Accused No.18 - Wazeer Ahmed Salik submits that the respondent No.7 was arrested on 12.02.2002 and remained in custody till the date of order of sentence in this case on 17.02.2010. He further submits that since this respondent has already served the sentence imposed on him, including the default sentence, nothing further survives for consideration and the appeal as against this respondent be dismissed.
(e) Sri.M.T.Nanaiah, learned Senior Counsel appearing for respondent No.5/Accused No.13-Kareem Lal Telgi submits that this respondent was arrested in this case on 07.11.2001 and has since remained in custody till date, though his presence was secured for various cases pending in various courts of the country and he being convicted in several cases is undergoing sentence. Further, the Counsel submits that since this respondent 12 has already served the sentence imposed on him, including the default sentence, nothing further survives for consideration against these respondents.
6. The learned Special Public Prosecutor for the appellant does not dispute the above facts.
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, (2001) 6 SCC 311 and in view of the fact that the respondents, viz., Accused No.1, 4, 6, 12, 13, 14 and 18 having undergone the sentences imposed on them, including the default sentences, the dates being not disputed by the counsel for the appellant, the revision petition requires to be dismissed. Even if the contention of the counsel for the appellant is to be accepted, nothing further would survive for consideration in so far as these accused are concerned as they have undergone the sentence imposed on them.
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For the aforesaid reasons, the revision petition is disposed off. If the present respondents are in custody, they shall be set at liberty forthwith in this case, if they are not required in any other case/s.
Registry to communicate this order to the concerned Jail authorities to do the needful.
Sd/- Sd/-
JUDGE JUDGE
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