Karnataka High Court
Rafi Ahmed vs State Of Karnataka on 18 July, 2017
Bench: Ravi Malimath, John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 18th DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.329 OF 2011
BETWEEN:
1. RAFI AHMED
S/O DASTAGIR ISMAIL
AGED ABOUT 26 YEARS,
NO.77, MUNNESWARA NAGAR
ARABIC COLLEGE,
K.G. HALLI,
BANGALORE
2. SARFARAZ NAWAZ
S/O MOHAMMED GHALIB,
AGED ABOUT 22 YEARS,
SHIKARI KHANA,
AKKAMAHADEVI TEMPLE ROAD,
BIJAPUR TOWN,
BIJAPUR DISTRICT
3. MOHAMMED ASIF @ ASIF @ ASIF PEERZADE
S/O NOOR MOHAMMED
AGED ABOUT 28 YEARS,
2
R/A NO.1594, KATTE PLOT COLONY
KHANAPUR, BELGAUM.
... APPELLANTS
(By SRI: AMAR CORREA, ADVOCATE FOR A1 & A2
SRI.M.SHASHIDHARA, ADVOCATE FOR A3)
AND:
STATE OF KARNATAKA
MADIVALA P.S
BY CBI
REPRESENTED BY
THE SPECIAL P.P FOR C.B.I
BENGALURU.
... RESPONDENT
(By Sri: P PRASANNA KUMAR, SPL. PP)
THIS CRL.A. FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED
14.9.2010/18.9.2010 PASSED BY THE SPL. JUDGE, XXXV ADDL.
CITY CIVIL & SSSIONS JUDGE, BENGALURU IN S.C.NOS.643 OF
2003, 352 OF 04 - CONVICTING THE APPELLANTS/ACCUSED
NO.3 AND 9 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 256, 259 READ WITH SECTION 120(B) OF INDIAN
PENAL CODE AND THE APPELLANT/ACCUSED NO.21 FOR THE
OFFENCE PUNISHABLE UNDER SECTION 259 OF IPC. THE
APPELLANTS/ACCUSED NOS.3 AND 9 ARE SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR FIVE YEARS AND
PAY A FINE OF RS.10,000/-EACH, IN DEFAULT OF PAYMENT OF
FINE THEY SHALL UNDERGO FURTHER RIGOROUS
IMPRISONMENT FOR THREE MONTHS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 256 READ WITH 120(B) OF
IPC. THE APPELLANT/ACCUSED NO.21 WAS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR FIVE YEARS
AND PAY A FINE OF RS.10,000/- IN DEFAULT OF PAYMENT OF
3
FINE THEY SHALL UNDERGO FURTHER RIGOROUS
IMPRISONMENT FOR THREE MONTHS EACH FOR THE OFFENCE
PUNISHABLE UNDER SECTION 259 R/W 120(B) OF IPC.
THIS CRL.A. COMING ON FOR FINAL HEARING THIS DAY,
RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT
The Appellant Nos.1, 2 & 3 herein, namely Accused Nos.3, 9 and 21 in S.C.No.643 of 2003 and S.C.No.352 of 2004 before the Special Judge, XXXV Addl. City Civil & Sessions Judge, Bengaluru are aggrieved by the judgment and order of conviction dated 14.09.2010 and the order of sentence dated 18.09.2010 sentencing the appellants 1 & 2/Accused 3 & 9 to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- for each of the offences punishable under sections 256 and 259 r/w 120(B) of Indian Penal Code and in default of payment of fine to undergo further rigorous imprisonment for three months for each of the offence mentioned above. Appellant No.3/Accused No.21 was sentenced to undergo rigorous imprisonment for five years and to pay a fine of 4 Rs.10,000/- for the offence punishable under section 259 of Indian Penal Code and in default of payment of fine to undergo further rigorous imprisonment for three months. The sentences were ordered to run concurrently.
2. The trial court while passing the judgment, so far as accused Nos.3, 9 and 21 is concerned, has observed at page 980 & 981, 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.
2. xxx
3. xxx
4. The detention of accused No.3 for a period of 1 year 8 months 13 days in this case is allowed as set off under Section 428 Cr.P.C.
5. xxx
6. xxx
7. The detention of accused No.9 for the period from 6.10.2002 to 21.2.2003 in this case in all comes 4 months and 16 days is allowed as set off under Section 428 Cr.P.C. xxx ".5 3. The counsel for appellant Nos.1, 2 and 3
restrict their arguments only to the plea of set off and not on merits.
4. Learned counsel for appellant Nos.1 and 2/accused Nos.3 and 9, contends that appellant No.1/accused No.3, Sri Rafi Ahmed was arrested in this case on 6.10.2002. He was convicted by the order dated 17.2.2010 in S.C.No.9 of 2001 by the Special Judge, Bengaluru. The judgment of conviction and sentence in S.C.643 of 2003 was pronounced on 14.09.2010 and 18.09.2010 respectively. He preferred the instant appeal on 17.03.2011. He was thereafter, granted bail on 08.04.2011 by this Court. Therefore, it is contended by the appellant No.1/accused No.3 that the period of five years, which was awarded by the Trial Court, has already been undergone, including the default sentence.
5. Accused No.9, Sri Sarfaraz Nawaz was arrested in this case on 6.10.2002 at Hyderabad and was in police 6 custody till 21.10.2002 and from 21.10.2002, he was detained in this case. He was convicted in C.C.No.16 of 2007 by the Special Judge, CBI Cases, Chennai on 5.10.2007. In this case, he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- for each of the offences under Sections 256 and 259 Indian Penal Code read with Section 120(B) Indian Penal Code and to undergo further imprisonment for three months in default of payment of fine. From the date of his arrest till the date of the order of conviction, accused No.9 has undergone the sentence including the default sentence. Hence, the counsel submits that nothing further survives for consideration.
6. Learned counsel Sri. M. Shashidhara for appellant No.3/accused No.21-Mohammed Asif submits that appellant No.3/accused No.21 was convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/- for the offence punishable under section 259 Indian Penal Code 7 and in default of payment of fine, to further undergo imprisonment for three months. In this case, he was not granted the benefit of set off. Thereafter, this appeal was filed on 17.03.2011. Accused No.21 was secured under body warrant in this case on 30.10.2003. It is stated in the judgment at page 970 that accused No.21 was convicted by the judgment dated 11.06.2009 by the Additional Chief Metropolitan Magistrate-II, (North) Delhi. Therefore, it is stated by the Trial Court that he is not entitled for set off from 30.10.2003 upto the date of conviction viz., 11.06.2009. However, it is incorrect. The appellant would necessarily be entitled for the set-off for the period of detention undergone by him in this case which is between 30.10.2003 to 18.09.2010. He has been sentenced for a period of five years and a fine of Rs.10,000/- in default of payment of fine to undergo three months imprisonment. Since he has already undergone custody for almost six years seven months, he has completed the period of sentence including the default sentence. 8
7. The learned Special Public Prosecutor does not dispute the above facts.
8. 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, we pass the following:-
ORDER
i) The judgment of conviction dated 14-09-2010 and the order of sentence dated 18-09-2010 passed by the XXXV Additional City Civil & Sessions Judge (Special Judge), Central Prison Premises, Parappana Agrahara, Bengaluru in S.C.No.643 of 2003 and S.C.No.352 of 2004 impugned in Criminal Appeal No.329 of 2011 are affirmed.
ii) The appellant Nos.1, 2 and 3/accused No.3-
Rafi Ahmed, accused No.9-Sarfaraz Nawaz and accused No.21-Mohammed Asif @ Asif @ Asif Peerzade shall be set at liberty forthwith in this case, if they are not required in any other 9 case/s, in view of they having undergone the sentence awarded, by following the judgment of the Hon'ble Supreme Court of India in the case of STATE OF MAHARASHTRA & ANOTHER VS. NAJAKAT ALIA MUBARAK ALI reported in (2001) 6 SCC 311.
iii) The bail bond executed by the Appellants shall stand cancelled and the sureties are discharged.
iv) Registry to communicate this order to the concerned Jail Authorities to do the needful.
v) Crl.A.No.329 of 2011 is disposed off accordingly.
SD/- SD/-
JUDGE JUDGE
*mn/-