Karnataka High Court
Shri.Yallappa S/O Irappa Gaddi @ ... vs The State Of Karnataka on 30 September, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
Crl.RP.No.100132/2020
C/w. Crl.RP Nos.100133/2020, 100134/2020
100135/2020, 100136/2020, 100137/2020
& 100138/2020
In CRL.RP.NO.100132/2020:
BETWEEN
1. SHRI.YALLAPPA S/O IRAPPA GADDI @ RAMACHARI,
AGE: 24 YEARS, OCC: COOLIE,
R/O: JAMAKHANDI, TQ: JAMAKHANDI,
DIST: BAGALKOTE.
2. SHRI.NAGARAJ S/O FAKIRAPPA WALMIKI,
AGE: 24 YEARS, OCC: COOLIE,
R/O: MUDHOL, TQ: MUDHOL,
DIST: BAGALKOTE.
... PETITIONERS
(BY SRI.D.B.KARIGAR, ADVOCATE)
AND
THE STATE OF KARNATAKA,
BY P.S.I., BILAGI P.S., BILAGI,
BY ITS S.P.P.,
HIGH COURT OF KARNATAKA.
... RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S.397
R/W SEC. 401 OF CR.P.C. SEEKING TO ALLOW THIS REVISION
PETITION & THEREBY SET THE IMPUGNED ORDER OF
:2:
DISMISSAL OF THE APPEAL PASSED BY THE PRINCIPAL
DISTRICT & SESSIONS JUDGE, BAGALKOT, IN ITS CRIMINAL
APPEAL NO.19/2018 ON 28.01.2019 BY CONFIRMING THE
ORDER OF THE SENIOR CIVIL JUDGE & JMFC COURT, BILAGI, IN
ITS C.C.NO.29/2016 DATED 29.11.2017 FOR THE OFFENCES
P/U/SS.457, 380 R/W SEC. 34 OF IPC, VIDE ANNEXURE-A,
INSOFAR PETITIONERS CONCERNED.
IN CRL.RP.NO.100133/2020:
BETWEEN
1. SHRI.YALLAPPA S/O IRAPPA GADDI @ RAMACHARI,
AGE: 24 YEARS, OCC: COOLIE,
R/O: JAMAKHANDI, TQ: JAMAKHANDI,
DIST: BAGALKOTE.
2. SHRI.NAGARAJ S/O FAKIRAPPA WALMIKI
AGE: 24 YEARS, OCC: COOLIE,
R/O: MUDHOL, TQ: MUDHOL,
DIST: BAGALKOTE.
... PETITIONERS
(BY SRI.D.B. KARIGAR, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY P.S.I., BILAGI P.S., BILAGI,
BY ITS S.P.P.,
HIGH COURT OF KARNATAKA.
... RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S.397
R/W SEC.401 OF CR.P.C. SEEKING TO ALLOW THIS REVISION
PETITION & THEREBY SET THE IMPUGNED ORDER OF
DISMISSAL OF THE APPEAL PASSED BY THE PRINCIPAL
DISTRICT & SESSIONS JUDGE, BAGALKOT, IN ITS CRIMINAL
APPEAL NO.20/2018 ON 28.01.2019 BY CONFIRMING THE
ORDER OF THE SENIOR CIVIL JUDGE & JMFC COURT, BILAGI, IN
ITS C.C.NO.30/2016 DATED 29.11.2017 FOR THE OFFENCES
:3:
P/U/SS. 457, 380 R/W SEC. 34 OF IPC, VIDE ANNEXURE-A,
INSOFAR PETITIONERS CONCERNED.
CRL.RP.NO.100134/2020:
BETWEEN
1. SHRI.YALLAPPA S/O IRAPPA GADDI @ RAMACHARI,
AGE: 24 YEARS, OCC: COOLIE,
R/O: JAMAKHANDI, TQ: JAMAKHANDI,
DIST: BAGALKOTE.
2. SHRI.NAGARAJ S/O FAKIRAPPA WALMIKI
AGE: 24 YEARS, OCC: COOLIE,
R/O: MUDHOL, TQ: MUDHOL,
DIST: BAGALKOTE.
... PETITIONERS
(BY SRI.D.B. KARIGAR, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY P.S.I., BILAGI P.S., BILAGI,
BY ITS S.P.P.,
HIGH COURT OF KARNATAKA.
... RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S.397
R/W SEC.401 OF CR.P.C. SEEKING TO ALLOW THIS REVISION
PETITION & THEREBY SET THE IMPUGNED ORDER OF
DISMISSAL OF THE APPEAL PASSED BY THE PRINCIPAL
DISTRICT & SESSIONS JUDGE, BAGALKOT, IN ITS CRIMINAL
APPEAL NO.21/2018 ON 28.01.2019 BY CONFIRMING THE
ORDER OF THE SENIOR CIVIL JUDGE & JMFC COURT, BILAGI, IN
ITS C.C.NO.32/2016 DATED 29.11.2017 FOR THE OFFENCES
P/U/SS 457, 380 R/W SEC. 34 OF IPC, VIDE ANNEXURE-A, IN
SOFAR AS PETITIONERS ARE CONCERNED.
:4:
IN CRL.RP.NO.100135/2020:
BETWEEN
1. SHRI.YALLAPPA S/O IRAPPA GADDI @ RAMACHARI,
AGE: 24 YEARS, OCC: COOLIE,
R/O: JAMAKHANDI, TQ: JAMAKHANDI,
DIST: BAGALKOTE.
2. SHRI.NAGARAJ S/O FAKIRAPPA WALMIKI
AGE: 24 YEARS, OCC: COOLIE,
R/O: MUDHOL, TQ: MUDHOL,
DIST: BAGALKOTE.
... PETITIONERS
(BY SRI.D.B. KARIGAR, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY P.S.I., BILAGI P.S., BILAGI,
BY ITS S.P.P.,
HIGH COURT OF KARNATAKA.
... RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S.397
R/W SEC. 401 OF CR.P.C. SEEKING TO ALLOW THIS REVISION
PETITION & THEREBY SET THE IMPUGNED ORDER OF
DISMISSAL OF THE APPEAL PASSED BY THE PRINCIPAL
DISTRICT & SESSIONS JUDGE, BAGALKOT, IN ITS CRIMINAL
APPEAL NO.22/2018 ON 28.01.2019 BY CONFIRMING THE
ORDER OF THE SENIOR CIVIL JUDGE & JMFC COURT, BILAGI, IN
ITS C.C.NO.21/2016 DATED 29.11.2017 FOR THE OFFENCES
P/U/SS 457, 380 R/W SEC. 34 OF IPC, VIDE ANNEXURE-A, IN
SOFAR AS PETITIONERS ARE CONCERNED.
IN CRL.RP.NO.100136/2020:
BETWEEN
1. SHRI.YALLAPPA S/O IRAPPA GADDI @ RAMACHARI,
AGE: 24 YEARS, OCC: COOLIE,
:5:
R/O: JAMAKHANDI, TQ: JAMAKHANDI,
DIST: BAGALKOTE.
2. SHRI.NAGARAJ S/O FAKIRAPPA WALMIKI
AGE: 24 YEARS, OCC: COOLIE,
R/O: MUDHOL, TQ: MUDHOL,
DIST: BAGALKOTE.
... PETITIONERS
(BY SRI.D.B. KARIGAR, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY P.S.I., BILAGI P.S., BILAGI,
BY ITS S.P.P.,
HIGH COURT OF KARNATAKA.
... RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S.397
R/W SEC. 401 OF CR.P.C. SEEKING TO ALLOW THIS REVISION
PETITION & THEREBY SET THE IMPUGNED ORDER OF
DISMISSAL OF THE APPEAL PASSED BY THE PRINCIPAL
DISTRICT & SESSIONS JUDGE, BAGALKOT, IN ITS CRIMINAL
APPEAL NO.23/2018 ON 28.01.2019 BY CONFIRMING THE
ORDER OF THE SENIOR CIVIL JUDGE & JMFC COURT, BILAGI, IN
ITS C.C.NO.31/2016 DATED 29.11.2017 FOR THE OFFENCES
P/U/SS 457, 380 R/W SEC. 34 OF IPC, VIDE ANNEXURE-A,
INSOFAR PETITIONER CONCERNED.
IN CRL.RP NO.100137/2020:
BETWEEN
1. SHRI.YALLAPPA S/O IRAPPA GADDI @ RAMACHARI,
AGE: 24 YEARS, OCC: COOLIE,
R/O: JAMAKHANDI, TQ: JAMAKHANDI,
DIST: BAGALKOTE.
2. SHRI.NAGARAJ S/O FAKIRAPPA WALMIKI
AGE: 24 YEARS, OCC: COOLIE,
:6:
R/O: MUDHOL, TQ: MUDHOL,
DIST: BAGALKOTE.
... PETITIONERS
(BY SRI.D.B. KARIGAR, ADVOCATE)
AND
THE STATE OF KARNATAKA,
BY P.S.I., BILAGI P.S., BILAGI,
BY ITS S.P.P.,
HIGH COURT OF KARNATAKA.
... RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S.397
R/W SEC. 401 OF CR.P.C. SEEKING TO ALLOW THIS REVISION
PETITION & THEREBY SET THE IMPUGNED ORDER OF
DISMISSAL OF THE APPEAL PASSED BY THE PRINCIPAL
DISTRICT & SESSIONS JUDGE, BAGALKOT, IN ITS CRIMINAL
APPEAL NO.24/2018 ON 28.01.2019 BY CONFIRMING THE
ORDER OF THE SENIOR CIVIL JUDGE & JMFC COURT, BILAGI, IN
ITS C.C.NO.28/2016 DATED 29.11.2017 FOR THE OFFENCES
P/U/SS 457, 380 R/W SEC. 34 OF IPC, VIDE ANNEXURE-A, IN
SOFAR AS PETITIONERS (ACCUSED NOS.2 & 3) ARE
CONCERNED.
IN CRL.RP.NO.100138/2020:
BETWEEN
1. SHRI.YALLAPPA S/O IRAPPA GADDI @ RAMACHARI,
AGE: 24 YEARS, OCC: COOLIE,
R/O: JAMAKHANDI, TQ: JAMAKHANDI,
DIST: BAGALKOTE.
2. SHRI.NAGARAJ S/O FAKIRAPPA WALMIKI
AGE: 24 YEARS, OCC: COOLIE,
R/O: MUDHOL, TQ: MUDHOL,
DIST: BAGALKOTE.
... PETITIONERS
(BY SRI.D.B. KARIGAR, ADVOCATE)
:7:
AND
THE STATE OF KARNATAKA
BY P.S.I., BILAGI P.S., BILAGI,
BY ITS S.P.P.,
HIGH COURT OF KARNATAKA.
... RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S.397
R/W SEC. 401 OF CR.P.C. SEEKING TO ALLOW THIS REVISION
PETITION & THEREBY SET THE IMPUGNED ORDER OF
DISMISSAL OF THE APPEAL PASSED BY THE PRINCIPAL
DISTRICT & SESSIONS JUDGE, BAGALKOT, IN ITS CRIMINAL
APPEAL NO.25/2018 ON 28.01.2019 BY CONFIRMING THE
ORDER OF THE SENIOR CIVIL JUDGE & JMFC COURT, BILAGI, IN
ITS C.C.NO.22/2016 DATED 29.11.2017 FOR THE OFFENCES
P/U/SS 457, 380 R/W SEC. 34 OF IPC, VIDE ANNEXURE-A,
INSOFAR AS PETITIONERS HEREIN CONCERNED.
THESE PETITIONS COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court aggrieved by the order of the Prl. District and Sessions Judge, Bagalkot, dated 28.01.2019, passed in Crl.A.Nos.15/2018 and 19/2018 to 25/2018.
2. The facts leading up to the matter is that the there were various proceedings initiated against the petitioners as per the table below:
:8:
Sl. C.C. Cr.No. Date of Name of the Arrest of C.A. No. No. Incident complainant A1 to A3
1. 40/15 114/15 3.7.15 Ramesh Sangappa 4.8.2015 15/2018 Kesaragoppa
2. 29/16 20/15 16.2.15 Nzaeerahmed -do- 19/2018 Husensab Mull
3. 30/16 123/15 11.7.15 Manohar Pattar -do- 20/2018
4. 32/16 122/15 11.7.15 Hanamappa Budihal -do- 21/2018
5. 21/16 125/15 11.7.15 Shrishail Ukkali -do- 22/2018
6. 31/16 115/16 3.7.15 Raghavendra Kulkarni -do- 23/2018
7. 28/16 258/13 17.12.13 Shivanand Kundargi -do- 24/2018
8. 22/16 124/15 11.7.15 Shantavva Dalawai -do- 25/2015
3. Most of the offences are committed in the month of July-2015 baring two of them, which were committed on 16.02.2015 and 17.12.2013. The petitioners along with accused No.1 were arrested on 04.08.2015 and were in judicial custody thereafter. The petitioners in C.C.No.40/2015 i.e., at Sl.No.1 of the table above, were charged for the offences punishable under Section 457, 380 and 511 read with Section 34 of IPC, whereas in the remaining crimes i.e., Sl.Nos.2 to 8, they were charged for the offences punishable under Sections 457 and 380 read with Section 34 of IPC.
4. The petitioners and accused No.1 did not plead guilty and chose to stand trial when the matter was posted :9: for recordal of the statement of the petitioners and accused No.1 under Section 313 of Cr.P.C. on 23.11.2017, they were not produced before the Court, and hence, the matter came to be adjourned to several dates. Thereafter they pleaded guilty, which was accepted by the trial Court and the petitioners along with accused No.1 were convicted for all the offences charged against them.
5. The trial Court while sentencing directed that all sentences of imprisonment were to run concurrently. The trial Court had also extended the benefit of Section 428 of the Cr.P.C. with regard to the cases referred under Sl.Nos.2 to 8, since the petitioners and accused No.1 were in judicial custody from 04.08.2015 in C.C.No.40/2015. The order of the trial Court is as under:
"ORDER Acting U/Sec.241 of Cr.P.C. the accused No.1 to 3 are hereby convicted of offences punishable U/Secs.457 and 380 of IPC.: 10 :
Accused No.1 to 3 are sentenced to undergo simple imprisonment for a period of 830 days for offence punishable U/Sec.380 of IPC. So also, accused N.1 to3 are hereby directed to pay fine amount of Rs.500/-each, in default to make payment of fine amount, accused No.1 to 3 are sentenced to under go simple imprisonment for seven days for aforesaid offence.
Accused No.1 to 3 are sentenced to undergo simple imprisonment for 750 days for offence punishable U/Sec.457 of IPC. So also, accused No.1 to 3 are hereby directed to pay fine amount of Rs.500/- each, in default to make payment of fine amount, accused No.1 to 3 are sentenced to under go simple imprisonment for seven days for aforesaid offence.
The period of judicial custody on Body Warrant undergone by accused No.1 to 3 are treated as set off as per Sec. 428 of Cr.P.C.
Period of imprisonment of accused No.1 to 3 shall run concurrently."
6. The State being aggrieved by the order of extending benefit under Section 428 of the IPC, filed appeals in Crl.A.Nos.15/2018 and 19/2018 to 25/2018 before the Prl. District and Sessions Judge, Bagalkot contending that the petitioners and accused No.1 were in judicial : 11 : custody only insofar as C.C.No.40/2015 is concerned and in terms of Section 428 of the Cr.P.C. unless, the accused are in judicial custody in the same case, the benefit of Section 428 of Cr.P.C. could not be extended. Apart therefrom the State also contended that the sentence imposed by the trial Court was inadequate, the petitioners and accused No.1 are habitual offenders and there was a serious error committed by the trial Court in passing the order of sentence.
7. The said appeals were partly allowed by the Prl.
District and Sessions Judge, Bagalkot and the following order was passed:
"ORDER The appeals filed by the appellant/State under S.375(b) of Cr.P.C. are hereby partly allowed.
The order of sentence dated 29.11.2017 passed by Senior Civil Judge and JMFC, Bilagi in all the cases is hereby confirmed.: 12 :
The order of trial in extending the benefit under S.428 of Cr.P.C. to the accused No.1 to 3 in the case at Sl.No.1 is confirmed. Whereas the extending of benefit under S.428 of Cr.P.C. to the accused No.1 to 3 in the cases at Sl.No.2 to
8 as referred in the table is hereby set aside.
The trial Court is directed to issue necessary conviction warrant to accused No.1 to 3 accordingly in the remaining cases at Sl.No.2 to 8.
Keep the original copy of judgment in C.A.No.15/2018 and Xerox copy thereof in remaining appeals.
Send back the records of trial Court certified copy of this judgment."
8. It is aggrieved by the said order that the petitioners, who are accused Nos.2 and 3 are before this Court contending that the order passed by the Prl. District and Sessions Judge, Bagalkot is not in accordance with law.
9. The petitioners and accused No.1 having been arrested on 04.8.2015 and remanded to judicial custody had spent at the time of filing of the present petition four years eight months in judicial custody. : 13 : The order of the trial Court, while convicting and sentencing the petitioners and accused No.1 were to undergo rigorous imprisonment for a period of 830 days for the offence punishable under Section 380 of IPC as also to pay fine of Rs.500/- each and simple imprisonment for a period of 750 days for the offence punishable under Section 457 of IPC with fine of Rs.500/- each. Such being the case, the petitioners have spent more than the sentence that could be imposed in judicial custody and as such the petitioners seek for setting aside the judgment of the Prl. District and Sessions Judge, Bagalkot in Crl.A.Nos.15/2018 and 19/2018 to 25/2018 and for extending the benefit of set off in all the matters as also for the sentence to be held to be run concurrently.
10. Shri D.B. Karigar, learned counsel for the petitioners in all the above matters relying on the judgment of this Court dated 3rd December 2019 in the case of Shanthakumar S/o.Late Chandrappa vs. State of : 14 : Karnataka in Crl.P.No.1236/2019, would contend that this Court has already held that in cases where the accused were tried for the similar offences, the benefit of concurrent sentencing as also set off ought to be allowed. More particularly, paragraph Nos.16 and 17 thereof, which are extracted hereunder:
"16. The facts involved in the said case and the instant case are similar. In the instant case the trial Court having passed the judgments on the same day, in the opinion of this Court, ought to have considered the applicability of Section 427 Cr.P.C. and the law laid down by this Court as hereinabove noted. The accused was aged about 29 years on the date of conviction and they has served the sentence for nearly more than five years as it is submitted that the petitioner remained in the custody from the year 2014 i.e., one vear prior to the date of conviction and sentence for almost seven years now. Keeping in view the age and value of the articles stolen, this Court is of the considered opinion, that the benefit of concurrent running of sentence is required to be extended to the petitioner.
17. Accordingly, petition is allowed. The substantive sentence of simple imprisonment ordered in C.C.N0.96/2015, C.C.N0.97/2015 & C.C.No.98/2015 by the Court of Addl. Civil Judge & JMFC at : 15 : Gowribidanur by order dated 25.04.2016 are to run concurrently with the sentence of simple imprisonment ordered in C.C.No.95/2C15 by the Addl. Civil Judge & JMFC at Gowribidanur, by order dated 25.04.2016."
11. He further relies on the decision of this Court dated 29th November 2019, in the case of Azgarkhan @ Yanna S/o.Rafeek Khan and another vs. State of Karnataka, in Crl.P.No.3548/2019, to canvas the above argument contending that this decision also supports the submission made by him. More particularly, paragraph Nos.13 and 14, which are extracted hereunder:
"13. The facts involved in the said case and the instant case are similar. In the instant case the trial Court having passed the judgments on the same day, in the opinion of this Court, ought to have considered the applicability of Section 427 Cr.P.C. and the law laid down by this Court as hereinabove noted. The accused were aged about 22 and 28 years on the date of conviction and they have served the sentence for nearly more than six years as it is submitted that the petitioners remained in the custody from the year 2013 i.e., two years prior to the date of : 16 : conviction and sentence for almost seven years now. Keeping in view the age and value of the articles stolen, this Court is of the considered opinion, that the benefit of concurrent running of sentence is required to be extended to the petitioners.
14. Accordingly, petition is allowed. The substantive sentence of simple imprisonment ordered in C.C.No.276/2014 and 277/2014 by the Court of Senior Civil Judge and JMFC at Sira by order dated 24.02.2.015 are to run concurrently with the sentence of simple imprisonment ordered in C.C.No.275/2014 by the Court of Senior Civil Judge and JMFC, Sira, dated 24.02.2015."
12. Per contra, Shri Ramesh Chigari, learned HCGP for the respondent - State relying on Section 428 of the Cr.P.C. would contend that the judgment of the appellate tribunal, i.e., Prl. District and Sessions Judge, Bagalkot is proper and correct. In that, the extension of the benefit of set-off can only be granted in the event of detention, if any undergone by the detenue during the investigation, enquiry or trial of the same case. He submits that admittedly, there are different cases, which had been filed against the : 17 : petitioners and accused No.1. Thus, the benefit could not be extended to all the cases, it could only be extended in C.C.No.40/2015, in which the petitioners and accused No.1 had been remanded to judicial custody. The petitioners and accused No.1 were only produced by the issuance of body warrant in the other matters. Therefore, they could not be said to be in judicial custody in those cases, and therefore, the appellate Court has properly applied the applicable law and held that the set-off is not permissible in respect of the other cases.
13. Heard Shri D.B. Karigar, learned counsel for the petitioners and Shri Ramesh Chigari, learned HCGP for the respondent - State in all the matters. Perused the papers.
14. The points that would arise for determination by this Court are as under:
(i) Whether while sentencing the accused in a series of matters, wherein the : 18 : offences alleged to have been committed by them are more or less identical, sentencing could be done in such a manner as directing the sentences to run concurrently or would they have to be sentenced for the sentences to run consecutively?
(ii) Whether the set off under Section 428 of Cr.P.C. can be extended to the accused, who are in judicial custody in another matter, having been remanded to such custody in other matter when being sentenced in a completely different matter?
15. Answer to Point No.(i): Whether while sentencing the accused in a series of matters, wherein the offences alleged to have been committed by them are more or less identical, sentencing could be done in such a manner as directing the sentences to run concurrently or would they have to be sentenced for the sentences to run consecutively?
16. The facts of the matters have been detailed above, in that the petitioners and accused No.1 have been charged with the offences punishable under Sections 457 and 380 read with Section 34 of IPC in all eight matters. However, in one of the matter, an additional charge under Section 511 of IPC has been laid in : 19 : respect of the accused. In all the matters, the petitioners and accused No.1 are stated to have committed theft of articles by breaking open the house and all such thefts have happened in the month of July-2015 baring two of them, which were committed on 16.02.2015 and 17.12.2013. The petitioners and accused No.1 have pleaded guilty in respect of all the offences, it is on that basis they they had been sentenced. It is also a matter of fact that there are no other offences, which are alleged against the accused as ascertained on enquiry from Shri Ramesh Chigari, learned HCGP.
17. This Court in the cases of Shanthakumar S/o.Late Chandrappa vs. State of Karnataka and Azgarkhan @ Yanna S/o.Rafeek Khan and another (Supra) has categorically held by relying upon the decision of the Hon'ble Apex Court in the case of O.M. Cherian alias Thankachan vs. State of Kerala and others reported in (2015)2 SCC 501 : 20 : that the discretion is vested with the Courts and the requirement is that the discretion ought to be exercised judiciously. While exercising such discretion, the Courts are required to look into the facts and circumstances of the case, the magnitude of the act complained of, the impact on the society and any other attendant aggravating or mitigating circumstances.
18. This Court while dealing with those matters, has held that when the prosecution was by the same Police and the act complained of had been committed one after other in the same year within the limits of same Police Station; the sentences in those cases were ordered to run concurrently.
19. This Court also took into consideration the fact that accused had served the sentences of nearly more than five years from the time when they were remanded to custody, till the time, the matter was taken up by the Court and keeping in view of the age of the accused : 21 : and value of the articles stolen, this Court has extended the benefit to the accused therein directing the sentences to run concurrently.
20. In the present facts also, petitioner Nos.2 and 3 are aged about 24 years, they are stated to have committed the offences punishable under Sections 380 and 457 of IPC, which are re-produced herein under:
"380. Theft in dwelling house, etc.- Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
CLASSIFICATION OF OFFENCE Punishment-Imprisonment for 7 years and fine-Cognizable-Non-bailable-triable by any Magistrate-Non-compoundable."
"457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.-- Whoever commits lurking house-trespass by night, or house- breaking by night, in order to the committing of any offence punishable with : 22 : imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.
CLASSIFICATION OF OFFENCE Para I: Punishment-Imprisonment for 5 years and fine-Cognizable-Non-bailable- Triable by Magistrate of the first class-Non- compoundable.
Para II: Punishment-Imprisonment for 14 years and fine-Cognizable-Non- bailable-Triable by Magistrate of the first class."
21. The punishment under Section 380 of IPC is stated to be a maximum of seven years and that the punishment under Section 457 of IPC is maximum of five years along with fine and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.
22. I am of the considered view that the purpose of sentencing is to have a deterrent effect so as to deter the persons sentenced from indulging in similar : 23 : offences in future. The accused are stated to have committed eight offences of theft/burglary, if they are sentenced for each offence for a period of five years each, then it would end up to a sentence for a period of 40 years, if they are sentenced for each offence for a period of fourteen years each, then it would end up to a sentence for a period of 112 years, which is much more than the sentence, which can be imposed even for a heinous offence like murder. The Legislature could not be said to have contemplated such an anomalous situation arising or occurring; though it could be contended that the petitioners and accused No.1 are habitual offenders, the fact remains that the offences committed by them in all the complaints is one and the same. Thus, the interest of justice would be served and the policy of deterrence achieved by sentencing them in all the matters to run concurrently.
: 24 :
23. In view of the said law, taking into consideration that the petitioners had been arrested on 04.08.2015 and continue to be in custody even as on today. The petitioners have served a sentence of more than five years from the date of their arrest. In view of the same, applying the decision of this Court in the cases of Shanthakumar S/o.Late Chandrappa vs. State of Karnataka and Azgarkhan @ Yanna S/o.Rafeek Khan and another (Supra), I am of the considered view that the benefit of the sentences to run concurrently ought to be extended to the petitioners.
24. Answer to Point No. (ii): Whether the set off under Section 428 of Cr.P.C. can be extended to the accused, who are in judicial custody in another matter, having been remanded to such custody in other matter when being sentenced in a completely different matter?
25. Coming to the second issue as regards whether set off could be granted under Section 428 of IPC for the time spent in custody by the accused in a different : 25 : matter. The accused have been arrested in C.C.No.40/2015 on 04.08.2015 and were produced by issuance of body warrant in other matters; once the accused are arrested, they could not be once again arrested in another matter. The scheme of things under the Cr.P.C. provide only for production by way of body warrant. When such being the scheme of things, it would be highly anomalous and contrary to the interest of justice, if it were to be held that the benefit under Section 428 of the Cr.P.C. can only be extended if the accused are arrested and detained in the same matter.
26. The fact remains that the accused were arrested and detained, it would not the matter if would be the same case or another case, I am therefore of the considered opinion that the detention of the accused in one matter, such detention is required to be set off in other matter, more so, when in the peculiar circumstances of this case, the petitioners and : 26 : accused No.1 have been charged for the same offences under Sections 457 and 380 of the IPC by the same Police, the offences have happened not only in the same year but many of them in the same month and more particularly when the petitioners and accused No.1 have pleaded guilty.
27. In view of the same, I answer the point by holding that the benefit of set off can be extended to the accused in all the matters, even though they were arrested in only one matter.
28. With the above finding, the petitions are allowed.
Sd/-
JUDGE Vnp*