Karnataka High Court
Iliyas Ahmed vs C B I Police on 18 July, 2017
Bench: Ravi Malimath, John Michael Cunha
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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.511 OF 2011
BETWEEN:
1. ILIYAS AHMED
S/O BADAMI ABDUL SATTAAR,
AGED ABOUT 27 YEARS,
R/AT CHALAVADI CHAL,
JAI BHIMA NAGAR,
DHARWAD.
2. MANSOOR @ MANOJ
S/O MEHBOOB AHMED,
AGED ABOUT 24 YEARS,
R/AT NO.1331, NIGAPURAGALLI,
KHANAPURA TALUK,
BELAGAVI DISTRICT. ... APPELLANTS
(BY SRI M.SHASHIDHARA, ADVOCATE)
AND:
C.B.I. POLICE
REPRESENTED BY CBI PUBLIC PROSECUTOR,
2
HIGH COURT BUILDING PREMISES,
BENGALURU CITY. ... RESPONDENT
(BY SRI P.PRASANNA KUMAR, SPECIAL PUBLIC
PROSECUTOR)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF
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 AND S.J., BENGALURU IN S.C.NO.643 OF
2003 - CONVICTING THE APPELLANT/ACCUSED NO.10 FOR
THE OFFENCE PUNISHABLE UNDER SECTION 256, 259 R/W
120(B) OF IPC, AND ACCUSED 22 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 259 R/W 120(B) OF IPC. THE
APPELLANT/ACCUSED NO.10 IS SENTENCED TO UNDERGO
R.I. FOR FIVE YEARS AND PAY A FINE OF RS.10,000/- IN
DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO
FURTHER R.I. FOR THREE MONTHS FOR THE OFFENCES
PUNISHABLE UNDER SECTION 256 & 259 R/W 120(B) OF
IPC. THE APPELLANT/ACCUSED NO.22 IS SENTENCED TO
UNDERGO R.I. FOR 5 YEARS AND TO PAY FINE OF
RS.10,000/- FOR THE OFFENCE PUNISHABLE UNDER
SECTION 259 IPC, IN DEFAULT OF PAYMENT OF FINE, HE
SHALL FURTHER UNDERGO R.I. FOR 3 MONTHS. THE ABOVE
SENTENCE WERE ORDERED TO RUN CONCURRENTLY EXCEPT
THE SENTENCE IMPOSED FOR DEFAULT IN PAYMENT OF
FINE. THE APPELLANT/ACCUSED PRAYS THAT THEY BE
ACQUITTED.
THIS CRL.A. COMING ON FOR FINAL HEARING THIS
DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
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JUDGMENT
The Appellant Nos.1 & 2 herein, namely Accused Nos.10 and 22 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 appellant 1 /Accused 10 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.2/Accused No.22 was sentenced to undergo rigorous imprisonment for five years and to pay a fine of 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. 4
2. The trial court while passing the judgment in respect of set off under Section 428 Cr.P.C., so far as accused No.10 is concerned, has discussed in detail at pages 965 - 967 and so far as accused No.22 is concerned, has discussed in detail at pages 970 - 971 and 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. xxx
5. xxx
6. xxx
7. xxx
8. The detention of accused No.10 for the period from 6.10.2002 to 29.11.2002 in this case in all comes 1 month and 24 days is allowed as set off under Section 428 Cr.P.C.
9. xxx ".5
3. Sri. M.Shashidhara, learned counsel for appellant Nos.1 and 2/accused Nos.10 and 22, submits that appellant No.1/accused No.10 Iliyas Ahmed was apprehended on 06.10.2002 at Hyderabad and was in police custody till 21.10.2002 and from 21.10.2002 he was detained in judicial custody in this case. Since he was involved in various other cases and was in detention thereof, he was entitled for set off, for the period from 06.10.2002 to 29.11.2002, that is 1 month 24 days. The judgment of conviction and sentence in S.C.643/2003 was pronounced on 14.09.2010 and 18.09.2010 respectively. He preferred the instant appeal on 20.05.2011. He was thereafter, granted bail on 17.06.2011 by this Court. Therefore, it is contended by the appellant No.1/accused No.10 that the period of five years, which was imposed by the Trial Court, has already been undergone, including the default sentence, nothing further survives for consideration.
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4. Accused No.22-Mansoor @ Manoj who was detained in connection with Delhi case, was secured under body warrant in this case on 30.10.2003. It is stated, in the judgment at page 971, that accused No.22 was convicted by the judgment dated 11.06.2009 by the Additional Chief Metropolitan Magistrate-II, (North) Delhi in Crime No.604 of 2002. Therefore, it is observed by the trial Court that this appellant was not entitled for set off from 30.10.2003 upto the date of conviction viz., 11.06.2009. In this case, he was not granted the benefit of set off by the Trial Court. The judgment of conviction and sentence in S.C.352/2004 was pronounced on 14.09.2010 and 18.09.2010 respectively. Thereafter, this appeal was filed on 20.05.2011. He was granted bail on 17.06.2011 by this Court. Therefore, it is contended by the appellant No.2/accused No.22 that the period of five years, which was imposed by the Trial Court, has already been 7 undergone, including the default sentence, nothing further survives for consideration.
5. The counsel for appellant Nos.1 and 2 restrict his arguments only to the plea of set off and not on merits.
6. The learned Special Public Prosecutor does not dispute the above facts.
7. The appellants have already undergone the sentence awarded on them, including the default sentence
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 REPORTED IN (2001) 6 SCC 311, the Appeal is disposed off. The appellants 1 & 2 / accused 2-Iliyas Ahmed and accused no.22-Mansoor @ Manoj shall be set at liberty forthwith in this case, if they are not required in 8 any other case/s. The bail bond shall stand cancelled and the surety stands discharged.
Registry is directed to communicate this order to the Jail authorities to do the needful.
SD/- SD/-
JUDGE JUDGE
Rsk/-