Karnataka High Court
Basha @ Basha Sab S/O Budan Sab vs State Of Karnataka on 26 March, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF MARCH, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRL.RP. NO.100020/2014 C/W
CRL.RP. NO.100021/2014
BETWEEN:
Basha @ Basha Sab S/o Budan Sab,
Age: 38 years, Occ: Business,
R/o Chiambar Temple,
Goutin Area, Soudatti,
Now at Lingaraj Camp, Gangavathi. ... Petitioner
(Common in both petitions)
(By Sri. Vijay M. Malali, Adv.)
AND:
State of Karnataka,
By Gangavathi Town PS,
Represented by S.P.P. H.C.,
High Court Building, Dharwad. ... Respondent
(Common in both petitions)
(By Sri. V.M. Banakar, Addl. SPP)
THESE CRIMINAL REVISION PETITIONS ARE
FILED UNDER SECTION 397(1) R/W 401 OF CODE OF
CRIMINAL PROCEDURE, PRAYING TO CALL FOR THE
RECORDS AND SET ASIDE THE JUDGMENT DATED
13.03.2013 PASSED BY FAST TRACK COURT, KOPPAL
IN CRIMINAL APPEAL NOS.43/2012 AND 47/2012
RESPECTIVELY DISMISSING THE APPEAL THEREBY
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UPHOLDING THE ORDER DATED 21.12.2011 PASSED
BY PRL. CIVIL JUDGE & JMFC, GANGAVATHI IN C.C.
NO.684/2011 AND C.C. NO. 686/2011 RESPECTIVELY
AND CONSEQUENTLY THE PETITIONER BE
ACQUITTED.
THESE CRIMINAL REVISION PETITIONS COMING
ON FOR ADMISSION, THIS DAY THE COURT PASSED
THE FOLLOWING:
ORDER
These matters are posted for Admission. At the stage of Admission itself with the consent of the learned Counsel for the petitioner and as well as the learned Additional State Public Prosecutor, the matters are heard on merits and disposed of.
2. For the purpose of convenience and avoiding repetition of facts, both the above said Criminal Revision Petitions are clubbed and a common order is passed.
3. After clubbing the above said two cases, the learned Counsel for the petitioner filed an application 3 under Section 428 of Cr.P.C. stating that, this Court may pleased to grant set off to the punishment imposed on the petitioner in C.C. No.684/2011 and 686/2011 for the period of detention already undergone by the petitioner, on the file of learned Principal Civil Judge and J.M.F.C., Gangavathi and consequently, dispose off the Revision Petitions as become infructuous.
4. The Memorandum of Facts filed in support of the application shows that the petitioner was convicted in C.C. No.684/2011 to undergo one year rigorous imprisonment for the offence punishable under Section 457 of I.P.C. and also to pay fine of Rs.5,000/- and in default to undergo simple imprisonment for 30 days. He was also convicted and sentenced for the offence punishable under Section 380 of I.P.C. to undergo rigorous imprisonment for two years and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for 30 days.
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5. In another case in C.C. No.686/2011, the accused/petitioner was also convicted on the same day for same offences, i.e. under Section 457 of I.P.C. two years rigorous imprisonment with fine of Rs.5,000/- with a default sentence of simple imprisonment for 30 days was imposed and for the offence under Section 380 of I.P.C. one year rigorous imprisonment and payment of Rs.5,000/- as fine with default clause of 30 days simple imprisonment was imposed. In Memorandum of Facts at paragraph 3 also, it is made it clear that though the revision petitions have been filed challenging the above said conviction order and sentence passed by the Trial Court and as well as the orders of the Appellate Court (Sessions Court) in confirming the said judgment of conviction and sentence passed by the Trial Court, but in view of the present application being filed and as the accused has already undergone and completed the sentence imposed by the Trial Court, 5 there is no necessity for the petitioner to contest on the merits of the case. Therefore, it is specifically mentioned that the petitioner restricted in both the Revision Petitions with respect to the extent of set off of imprisonment sought to be given before this Court. Therefore, it is specifically alleged by the learned Counsel before the Court that the period the petitioner has undergone shall be given set off to both the cases and to declare that there is nothing remains in the sentence passed by the Trial Court to be undergone or to be satisfied by the petitioner.
6. On the basis of the above said application, it becomes clear that this Court need not go into the merits or de-merits of the judgment of conviction and sentence passed by the Trial Court in C.C. No.684/2011 and also consequent Criminal Appeal in No.43/2012 and also C.C. No. 686/2011 and consequent Criminal 6 Appeal in No.47/2012, on the file of the Fast Track Court, Koppal.
7. The question remains for consideration before this Court is :
"Whether the period undergone in the jail by the accused during the pendency of the criminal case in C.C. No.684/2011 and during the course of investigation in that case and also he continued to be in jail when another case was initiated and investigated in Crime No.120/2011 later registered as C.C. No.686/2011 for the offences under Sections 457 and 380 of I.P.C." ?
8. Before adverting to the above question, it is just and necessary to keep in mind certain relevant facts of the above said two cases.
9. It is seen from the records of the Trial Court that, in C.C. No.684/2011 the Gangavathi Town Police have registered a case against the accused/ petitioner in 7 Crime No. 124/2011, on 17.08.2011, the accused was produced before the Court by the Police and he was remanded to judicial custody. It is not disputed even by the prosecution that since 17.08.2011 the petitioner has been in judicial custody after remand. The said case ended up in conviction vide the judgment of the Trial Court in C.C. No.684/2011 dated 21.12.2011 and sentence noted supra was passed.
10. The records pertaining to another case in C.C. No.686/2011 shows that the accused was produced before the Court on 28.09.2011. Therefore, it goes without saying that during the course of investigation and inquiry and trial of the case in Crime No.120/2011 which was later registered as C.C. No.686/2011 the accused was throughout in the judicial custody and the charge sheet has been filed in C.C. No.686/2011 while the accused was in custody itself and it appears he was 8 produced before the Court from the jail itself on 01.10.2011.
11. The punishment imposed by the Trial Court shows that the Trial Court has passed the sentence in both the cases and ordered that they shall run concurrently. Therefore, it goes without saying that in both the cases, the accused has to independently undergo rigorous imprisonment for a period of 2 years and also shall undergo simple imprisonment for 30 days in default of payment of Rs.5,000/- fine imposed by the Court. Therefore, he has to undergo the imprisonment for 2 years one month in connection with C.C. No.684/2011 and also 2 years rigorous imprisonment, one month simple imprisonment pertaining to C.C. No.686/2011. The question is whether the accused has to undergo the punishment one after the another so as to count the period of punishment for a period of four years two months in total or whether by virtue of giving set off to 9 the accused if he undergoes the punishment for the period of two years one month does it suffices the requirement of law under Section 428 of Cr.P.C. Therefore, it is just and necessary for this Court to go through the provisions under Section 428 of Cr.P.C., which reads as follows :
"428. Period of detention undergone by the accused to be set off against the sentence of 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 imprisonment on such conviction shall be restricted to the remainder, 10 if any, of the term of imprisonment imposed on him".
On plain reading of this Section, it gives a meaning that the period of detention, if any, undergone by the accused during the investigation, enquiry or trial of the same case shall be given set off against the term of imprisonment imposed on him on such conviction. Therefore, it creates a doubt whether during the pendency of enquiry or trial of a particular case if the accused is already in jail in connection with some other case whether such imprisonment or detention of the accused shall be given set off or not. This particular aspect has been in detail dealt with by the Hon'ble Supreme Court in a case reported in (2001) 6 SCC 311 between State of Maharashtra and another Vs. Najakat Alia Mubarak Ali, wherein the similar set of facts were also involved.
11The said decision reads like this :
"S.428 - Set-off - Purpose and conditions for applicability of - Held, per majority period of imprisonment undergone by an accused as an undertrial during investigation, inquiry or trial of a particular case, irrespective of whether it was in connection with that very case or any other case, held, can be set-off against the sentence of imprisonment imposed on conviction in that particular case - Words "same case" do not suggest that set-off would be available only if the period undergone as an undertrial prisoner is in connection with the same case in which he was later convicted and sentenced to a term of imprisonment - Those words merely denote pre-sentence period of detention undergone by an accused and nothing more".
12. The factual matrix of the said case also little bit relevant to be quoted here, the facts of that case disclose that :
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"The respondent-accused was tried in two cases. One was numbered S.C. No.230 of 1995 and the other as S.C. No.313 of 1996. He was arrested on 21.09.1995 in connection with both cases. The Sessions Judge who convicted him in SC No.230 of 1995 on 3.4.1998, while sentencing him, directed that the accused would be entitled to the set-off under Section 428 of the Code. Subsequently, a Sessions Court convicted him in SC No.323 of 1998 on 23.7.1998 and sentenced him to certain terms of imprisonment. The Sessions Judge concerned observed therein that the accused is entitled to the set-off under Section 428 of the Code. The respondent-accused sent an intimation to the jail authorities that he is entitled to be released from jail since he has already served the sentences imposed on him in both cases. But the jail authorities refused to release him on the premise that he could not claim the benefit of set-off in the second case "as he had been given set-off in the first case". The jail authorities did so on 13 the strength of a resolution dated 7.9.1974 adopted by the Government of Maharashtra. That resolution reads thus:
"If a prisoner is convicted in different cases and different set-off period is granted by different courts, then in that case maximum period of set-off in one case should be granted to prisoners, as other set-off period will be merged in the set-off which is the maximum".
The accused filed a petition in the High Court which was allowed by the impugned order, holding that the convict was entitled to benefit of Section 428 of the Code in both the cases for the period of detention undergone by him during investigation, enquiry and trial. Dismissing the appeal of the State by a 2:1 majority, the Supreme Court held :
"The section preceding Section 428, i.e. Section 427 indicates that the sentence of life imprisonment imposed on the same person in two different convictions would converge into 14 one and thereafter it would flow through one stream alone. Even if the sentence in one of those two cases is not imprisonment for life but only a lesser term the convergence will take place and the post-convergence flow would be through the same channel. In all other cases, it is left to the Court to decide whether the sentences in two different convictions should merge into one period or not. If no order is passed by the court the two sentences would run one after the other.
Section 427 is intended to provide amelioration to the prisoner. A penumbra of the succeeding section can be glimpsed through the former provision.
The purpose of Section 428 of the Code is also for advancing amelioration to the prisoner. The section does not contain any indication that if the prisoner was in jail as an undertrial prisoner in a second case the benefit envisaged in the section would be denied to him in respect of the second case. The ideology enshrined in Section 428 was 15 introduced for the first time only in the Code of Criminal Procedure, 1973. From the Statement of Objects and Reasons for bringing the provision it is clear that the convicted person is given the right to reckon the period of his sentence of imprisonment from the date he was in jail as an undertrial prisoner. In other words, the period of his being in jail as an undertrial prisoner would be added as a part of the period of imprisonment to which he is sentenced.
Therefore, there are two requisites postulated in Section 428 of the Code :
(1) During the stage of investigation, enquiry or trial of a particular case the prisoner should have been in jail at least for a certain period. (2) He should have been sentenced to a term of imprisonment in that case.
If the above two conditions are satisfied then the operative part of the provisions comes into play i.e. if the sentence of imprisonment awarded is longer than the period of 16 detention undergone by him during the stages of investigation, enquiry or trial, the convicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words "if any" in the section amplify that if there is no balance period left after such deduction the convict will be entitled to be set free from jail, unless he is required in any other case. In other words, if the convict was in prison, for whatever reason, during the stages of investigation, enquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him should be counted as part of the sentence imposed on him.
Reading Section 428 of the Code in the above perspective, the words "of the same case" are not to be understood as suggesting that the set-off is allowable only if the earlier jail life was undergone by him exclusively for 17 the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words "of the same" were used to refer to the pre-
sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words. It must therefore, be held that Section 428 of the Code permits the accused to have the period undergone by him in jail as an undertrial prisoner set off against the period of sentence imposed on him irrespective of whether he was in jail in connection with the same case during that period or not".
13. In view of the said Ruling, this Court has to ascertain whether the accused is entitled for the set-off for the period undergone by him in detention when case 18 in C.C. No.684/2011 is pending and also C.C. No.686/2011 is pending.
14. The punishment imposed by the Trial Court in C.C. No.684/2011 was on 21st December 2011, on the same day itself C.C. No.686/2011 was also disposed of. Therefore, it goes without saying that as on the date of initiation of C.C. No.686/2011 the accused was already in judicial custody in connection with C.C. No.684/2011. The accused had been in judicial custody from 17.08.2011. Therefore, so far it relates to C.C. No.684/2011 is concerned, he is entitled for set-off from 17.08.2011, it comes to an end on 17.09.2013. So far as the second case is concerned, it goes without saying that he was produced before the Court on 01.10.2011 that shows that as on the date of the registration of the case in Crime No. 120/2011 which later registered as C.C. No.686/2011, the petitioner was in judicial custody that means to say he was during the 19 course of investigation, enquiry and trial in C.C. No.686/2011 and as well as in C.C. No.684/2011 was in custody throughout. Therefore, in my opinion, even considering that the C.C. No.686/2011 the accused was produced before the Court and remanded to judicial custody on 01.10.2011. Even considering the said date as the custody of the accused in connection with the later case also he completes the sentence passed by the Trial Court as on 01.11.2013. Therefore, looking from any angle, considering the factual aspects of this case and also applying the principles laid down by the Apex Court, whether the accused is in judicial custody in connection with one case or two cases, but when the investigation, inquiry and trial have been simultaneously held and judgments were passed on the same day, then the period of detention undergone during the course of investigation, enquiry and trial of those cases, have to be taken into consideration for set- 20 off under Section 428 of Cr.P.C. If it is taken, the petitioner herein has already satisfied the punishment imposed upon him as on 01.11.2013.
15. After filing of these Revision Petitions before this Court, this Court has suspended the sentence passed by the Trial Court and ordered to release the petitioner on bail. The records of the Trial Courts discloses that the accused/petitioner was released on bail on 21.02.2014 on executing personal bond with one surety as ordered by this Court. Even considering these factual aspects, it shows that the period of detention of the accused is over shooted than the period of detention he has to undergo as per Section 428 of Cr.P.C. Therefore, for any reason there is no period remains to the petitioner to undergo imprisonment in order to satisfy the judgments of the Trial Court as narrated above.
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16. Under the above said circumstances, the claim made by the accused herein under Section 428 of Cr.P.C. in the application filed deserves to be favoured under law. As the merits of the case is not sought to be touched by the Revision Petitioner this Court is also not touching the merits of the case. Hence, I am of the opinion, both the Revision Petitions deserves to be allowed partly declaring that the period of detention already undergone by the accused is given as set off under Section 428 of Cr.P.C.
17. Hence, the following Order :
The above Revision Petitions are hereby allowed.
Consequently, the period of detention undergone by the accused from 17.08.2011 upto 21.02.2014 is hereby given set off under Section 428 of Cr.P.C. with reference to the sentence passed by the Trial Court in C.C. No.684/2011 and C.C. No.686/2011 and it is declared 22 that there is no period of punishment is remaining to be undergone by the accused.
With these observations, these Revision Petitions are disposed of.
It is also made it clear as the petitioner has already undergone even default sentence imposed by the Trial Court, but if any fine amount in the above said two cases is deposited by the petitioner before the Trial Court, the same is ordered to be refunded.
SD/-
JUDGE Rbv