Karnataka High Court
Ramaji S/O. Jakalu Kale vs The State Of Karnataka on 31 July, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY, 2014
BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL REVISION PETITION NO.100160/2014
C/W
CRIMINAL REVISION PETITION NO.100161/2014
IN CRL.RP NO.100160/2014
BETWEEN:
1. RAMAJI S/O. JAKALU KALE,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O. SHAKAPUR TANDA,
TQ: ALANDA, DIST: GULBARGA.
2. SHIVAJI @ SHIVARAJ @ SIRAJ
S/O. GANGU CHAWAN,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. KAMASARA NAYAK TANDA,
TQ: ALANDA, DIST: GULBARGA. ... PETITIONERS
(BY SRI. P.N.HOSAMANE, ADV.)
AND:
THE STATE OF KARNATAKA
2
(BY HOSPET TOWN P.S.),
BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP)
THIS CRIMINAL REVISION PETITION IS FILED
U/S 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE
THE ORDER 05.02.2014 PASSED BY THE DIST. &
SESSIONS JUDGE, BAGALKOT, IN CRL.A.NO.94/2013
AND JUDGMENT DATED 22.06.2013 PASSED BY THE
PRL. JMFC COURT, HUNUGUND IN C.C.NO.659/2012
AND ACQUIT THE PETITIONERS FOR THE OFFENCES
P/U/S 380, 457, 511 R/W 34 OF IPC.
-----
IN CRL.RP 100161/2014
BETWEEN:
1. RAMAJI S/O. JAKALU KALE,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O. SHAKAPUR TANDA,
TQ: ALANDA, DIST: GULBARGA.
2. SHIVAJI @ SHIVARAJ @ SIRAJ
S/O. GANGU CHAWAN,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. KAMASARA NAYAK TANDA,
TQ: ALANDA, DIST: GULBARGA. ... PETITIONERS
(BY SRI. P.N.HOSAMANE, ADV.)
3
AND:
THE STATE OF KARNATAKA,
BY HUNAGUND P.S.
R/BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP)
THIS CRIMINAL REVISION PETITION IS FILED
U/S 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE
THE ORDER 05.02.2014 PASSED BY THE DIST. &
SESSIONS JUDGE, BAGALKOT, IN CRL.A.NO.93/2013
AND JUDGMENT DATED 22.06.2013 PASSED BY THE
PRL. JMFC COURT, HUNUGUND IN C.C.NO.636/2012
AND ACQUIT THE PETITIONERS FOR THE OFFENCES
P/U/S 380, 457, 511 R/W 34 OF IPC.
THESE REVISION PETITIONS COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Learned Addl. State Public Prosecutor is directed to take notice for the respondent - State.
2. I.A.No.1/2014 is filed for condoning the delay of 78 days in filing the petitions. Accepting the reasons, 4 I.A.1/2014 is allowed in both the Revision Petitions. Delay of 78 days in filing the revision petitions is condoned.
3. The petitioners have approached this Court challenging the orders passed by the trial Court in C.C.Nos.659/2012 and 636/2012 dated 22.6.2013 respectively in convicting the petitioners herein for the offences punishable under Sections 380, 457 and 511 r/w. Section 34 of IPC, sentencing them to undergo two years Rigorous imprisonment and to pay a fine of Rs.2000/- each for the offence punishable u/s.457 of IPC and sentencing them to undergo two years Rigorous imprisonment and to pay a fine of Rs.2000/- each for the offence punishable under Section 380 of IPC with default clause to undergo simple imprisonment for further two months and the said sentences were ordered to run concurrently. The said orders were challenged 5 before the Sessions Court in Criminal Appeal Nos.93/2013 and 94/2013, and the learned Sessions Judge dismissed the appeals on the ground of delay, rejecting I.A.No.1 filed for condonation of delay.
4. Though the orders of the learned Sessions Judge and the judgments of the trial Court were challenged before this Court, at the time of submitting arguments, the learned Counsel for the petitioners submits that the accused - petitioners herein were arrested on 02.07.2012 and 09.07.2012 respectively. The accused persons have already undergone the period of imprisonment imposed by the trial Court. But the learned Counsel for the petitioners submit that in another case, the same accused persons have been convicted by the learned trial Judge in C.C.No.636/2012 and sentenced the accused persons to undergo two years Rigorous imprisonment and to pay 6 fine of Rs.2000/- each for the offence punishable u/s.457 of IPC and sentenced them to undergo two years Rigorous imprisonment and to pay fine of Rs.2000/- each for the offence punishable under Section 380 of IPC with default clause to undergo simple imprisonment for further period of two months and the said sentences were ordered to run concurrently. Therefore, they are still in judicial custody.
5. Insofar as Crl. Revision Petition No.100160/2014 is concerned, the learned Counsel for the petitioners submits that the period of sentence passed by the trial Court has already been undergone and therefore, the Revision Petitions have become infructuous and as such prayed for dismissal of the Revision Petitions as having become infructuous. 7
6. At the time of hearing for admission, the learned Counsel for the petitioners submitted that he would confine his arguments regarding the set off given by the trial Court for the period undergone by the accused persons during investigation, inquiry and trial before the trial Court. Therefore, there is no need for this court to go into the merits of the case.
7. I have heard both the learned Counsel for th petitioners and the learned Addl. State Public Prosecutor for the respondent - State in this regard.
8. Insofar as Crl.RP No.100161/2014 is concerned, the trial Court has convicted the accused persons as stated above and it is specifically stated that the accused persons have to undergo the sentence of imprisonment passed in this case after serving the sentence passed in CC No.659/2012. This judgment of 8 conviction and sentence passed by the trial Court was challenged before the District and Sessions Judge, Bagalkot in Criminal Appeal No.94/2013. There was delay of one month eight days in filing the said appeal. The learned District and Sessions Judge rejected IA No.1, filed u/s.5 of the Limitation Act and consequently dismissed the appeal. Against which order, the present Revision Petitions have been preferred by the petitioners.
9. This Court while hearing the agruments inclined to remit the matter to the first Appellate Court for disposal of the case on merits but as the learned Counsel for the petitioners confined his arguments only challenging the final order passed by the trial Court in erroneously giving set off to the accused persons for the period undergone by them in the custody. I feel it is just 9 and necessary to deal with that aspect on merits here itself.
10. The records in both the cases i.e. the judgments of the trial Court discloses that A1 was arrested in connection with CC No.636/2012 on 7.6.2012 and subsequently he was produced through body warrant in CC No.659/2012 on 2.7.2012 and since then he has been in Judicial Custody till date. Insofar as A2 is concerned, he was arrested in connection with CC No.659/2012 on 9.7.2012 and subsequently produced through body warrant in CC No.636/2012 on 1.9.2012 and since then, they have been in Judicial Custody. Therefore, it shows clearly that during the course of investigation, inquiry and trial pertaining to the above said two cases, A1 has been in Judicial Custody since 7.6.2012 and A2 has been in Judicial Custody since 9.7.2012.
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11. The trial Court judgment also shows that A1 was produced through body warrant on 2.7.2012 and A2 was produced before the Court on 9.7.2012 through body warrant, that shows from the date of their arrest, they have been in Judicial Custody. The trial Court has convicted and sentenced the accused persons in both the Criminal Cases and sentenced them to undergo punishment as stated above and the said sentences ordered to run concurrently. Insofar as CC No.659/2012 is concerned, set off has been given to the accused persons from 2.7.2012 and 9.7.2012 respectively. The learned Counsel for the petitioners submit that the accused have undergone the punishment imposed by the trial Court in CC No.659/2012.
12. In CC No.636/2012, the trial Court relying upon the decision of the Hon'ble Apex Court between 11 Atul Manubhai Parekh Vs. Central Bureau of Investigation reported in (2010) 1 SCC 603 held that the petitioners are not entitled for set off which they have undergone in connection with CC No.659/2012. Therefore, they have to undergo the sentence imposed in CC No.636/2012 separately after serving the sentence passed in CC No.659/2012. The said observation of the trial Court is seriously challenged before this Court by the learned Counsel for the petitioners.
13. Looking to the above said factual matrix, there is absolutely no dispute that the accused persons have undergone imprisonment prior to the passing of the conviction sentence in both the cases, as the petitioners in both the cases have been in custody from 2.7.2012 and 9.7.2012 respectively.
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14. The trial Court in fact has relied upon the above said decision but not at all looked into the decision between the State of Maharashtra and another Vs. Najakat Allias Mubarak Ali, reported in AIR 2001 SC 2255, wherein the Hon'ble Apex Court has held that -
"Section 428 - Set off of undertrial detention - 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 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 13 the same case" 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."
15. Therefore, by virtue of the decision, it goes without saying that if the accused persons are undergoing imprisonment in connection with any other case with reference to any investigation, enquiry or trial, such period shall be given set off to the cases in which the accused are convicted subsequent to such undergoing of the sentence. But the same is not applicable if once conviction is recorded and sentence is imposed and thereafter in any subsequent case, the previous imprisonment undergone by the accused on the basis of conviction cannot be given set off.
16. It is worth to note here few facts of the case from the decision cited supra.
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17. The observations made at paragraph 2 of the Najakat Ali's case cited supra shows that the accused has been convicted and sentenced to imprisonment in two criminal cases. As the accused was arrested on the same day in connection with both the cases he remained in jail as an under-trial prisoner during the same period in both cases. The question mooted in that appeal was that - "Is it permissible for him to claim the benefit of set off envisaged in Section 428 of Cr.PC in both cases?" The question was answered in the 'Affirmative' by the Hon'ble Apex Court interpreting the words "of the same case". The court has allowed the benefit of set off in both the cases.
18. Now, coming to the decision relied upon by the trial Court between Atul Manubhai Parekh Vs. Central Bureau of Investigation reported in (2010) 1 SCC 603, the Hon'ble Apex Court has in fact 15 considering the judgment in the case of the State of Maharashtra and another Vs. Najakat Allias Mubarak Ali, reported in AIR 2001 SC 2255, at paragraph 9 has observed that -
"The wording of Section 428 is, in our view, clear and unambiguous. The heading of the Section itself indicates that the period of detention undergone by the accused is to be set off against the sentence of imprisonment. The Section makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. It is quite clear that the period to be set off relates only to pre conviction detention and not to imprisonment on conviction."
19. It appears, the distinction made by the Hon'ble Apex Court is that whatever may be the period 16 of imprisonment undergone by the accused which shall be prior to the conviction in the said case, such period shall be taken into consideration as period of detention undergone in the same case. Hence, it is clear that the period of imprisonment undergone by A1 and A2 and the trial has been held by the trial Court in both the cases simultaneously and judgments have also been rendered simultaneously on the same day, therefore it goes without saying that the period of detention undergone by the accused persons is well within the definition given by the Hon'ble Apex Court in Nazakat Ali's case. Therefore, the decision relied upon by the trial Court is not applicable to the facts and circumstances of these cases. The Hon'ble Apex Court in Atul Manubhai Parekh's case cited supra has clarified that the period of detention, depends upon the facts and circumstances of each case. Therefore, the 17 decision of the Nazakat Ali's case is applicable to the set of facts involved in that particular case. Therefore, the court has to apply its mind as to which case is aptly applicable in order to give set off to the accused persons. More over Najakath Ali's case was rendered by three Judges Bench, wherein Atul Manubhai Parekhs case was rendered by two Judges. Hence, Nazakath Alis case cannot be taken as over ruled.
20. As I have already narrated that the facts and circumstances of these two cases are almost similar to that of the facts and circumstances involved in Nazakat Ali's case. In these cases also, the accused persons were arrested on 2.7.2012 and 9.7.2012 respectively during pendency of the investigation, inquiry and trial of both the cases. Subsequently, those investigations were culminated into Criminal Case Nos.659/2012 and 636/2012 and accused have been convicted. Therefore, 18 it goes without saying that the period of detention undergone by the accused persons in both the cases shall be taken into consideration in order to give set off in both the cases. Therefore, the sentence passed by the trial Court, though cannot be interfered with in any manner, but the observations made by the trial Court with regard to giving set off to the accused persons requires to be interfered with by this Court exercising the powers of Revision. Hence, in my opinion, the set off shall be given to the accused persons in both the cases and they shall be released in both the cases immediately after completion of two years of punishment in total and on payment of fine amount imposed by the trial Court. If the fine amount is not deposited, the default sentence has to be served. To this effect, the order of the trial Court requires to be modified and hence, I pass the following: 19
ORDER The judgment of conviction and sentence passed by the trial Court in CC Nos.659/2012 and 636/2012 dated 22.6.2013 are hereby confirmed. However, the set off given by the trial Court is modified and it is ordered that the set off shall be given in both the cases for the period of detention undergone by the accused persons from 2.7.2012 and 9.7.2012 by A1 and A2 respectively. As two years from the said dates are already completed, they shall be released forthwith if they are not required in any other case, subject to the condition that they shall pay the fine amount as ordered by the trial Court in both cases or they have to undergo the default sentence of two months.
w 20 With these observations, both the revision petitions are disposed off.
Sd/-
JUDGE PL