Karnataka High Court
Sri Ravi @ Ravikumar vs The State Of Karnataka on 4 October, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2023:KHC:35846
CRL.A No. 1669 of 2022
C/W CRL.A No. 1683 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1669 OF 2022
C/W
CRIMINAL APPEAL No. 1683 OF 2022
IN CRL.A No.1669/2022:
BETWEEN:
SRI RAVI @ RAVIKUMAR
@ JANARDHANACHARI@ BABU
S/O LATE SHIVAPPA
AGED ABOUT 38 YEARS
RESIDING AT RAMPURA VILLAGE
BIDARAHALLI HOBLI, HOSAKOTE TALUK
BENGALURU RURAL DISTRICT - 560 049.
...APPELLANT
(BY SRI BASAVARAJU T A, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI AND:
Location: HIGH
COURT OF
KARNATAKA THE STATE OF KARNATAKA
REP. BY SUB INSPECTOR OF POLICE
MAHADEVAPURA POLICE STATION
BENGALURU.
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
...RESPONDENT
(BY SRI RANGASWAMY R, HCGP)
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NC: 2023:KHC:35846
CRL.A No. 1669 of 2022
C/W CRL.A No. 1683 of 2022
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 22.05.2020 PASSED BY THE LIII
ADDITIONAL CITY CIVIL AND SESSIONS SPECIAL JUDGE,
BENGALURU IN SPL.C.C.NO.55/2014 AND THE
APPELLANT/ACCUSED IS CONVICTED FOR THE OFFENCE P/U/S
363, 506, 376, 392 OF IPC AND SECTION 5(L) R/W 6 OF
POCSO ACT AND ETC.,
IN CRL.A.No.1683/2022:
BETWEEN:
SRI JANARDHANACHARI @ BABU
@ RAVI @ RAVIKUMAR @ PHYCHO RAVI
S/O LATE SHIVAPPACHARI
AGED ABOUT 38 YEARS
RESIDING AT RAMPURA VILLAGE
K.R.PURAM HOBLI, HOSAKOTE TALUK
BENGALURU RURAL DISTRICT - 560 049.
...APPELLANT
(BY SRI BASAVARAJU T A, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REP. BY SUB INSPECTOR OF POLICE
VEMGAL POLICE STATION
TALUKA AND DISTRICT : KOLAR.
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
...RESPONDENT
(BY SRI RANGASWAMY R, HCGP)
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 4.08.2016 AND
ORDER OF SENTENCE DATED 06.08.2016 PASSED BY THE
PRINCIPAL SESSIONS JUDGE, KOLAR IN S.C.No.109/2014-
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NC: 2023:KHC:35846
CRL.A No. 1669 of 2022
C/W CRL.A No. 1683 of 2022
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 366A, 342 OF IPC AND ETC.,
THESE APPEALS COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Crl.A. No. 1669/2022 is filed challenging the judgment of conviction and order of sentence dated 22.05.2020 passed in Spl.C.C. No. 55/2014 by the LIII Additional City Civil and Sessions Special Judge, Bengaluru, whereunder the appellant - accused has been sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.10,000/- for offence under Section 363 of IPC and in default to undergo imprisonment for two years; further sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.10,000/- for offence under Section 376 of IPC and in default to undergo imprisonment for three years; further sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.10,000/- for offence under Section 392 of IPC and in default to undergo imprisonment for two years; further sentenced to undergo imprisonment -4- NC: 2023:KHC:35846 CRL.A No. 1669 of 2022 C/W CRL.A No. 1683 of 2022 for two years and to pay fine of Rs.5,000/- for offence under Section 506 of IPC and in default to undergo imprisonment for six months and further sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.10,000/- for offence under Section 5(l) read with Section 6 of POCSO Act and in default to undergo imprisonment for three years. The trial Court has ordered all sentences to run concurrently and appellant - accused is entitled for setoff under Section 428 of Cr.P.C.
2. Crl.A. No. 1683/2022 is filed challenging the judgment of conviction and order of sentence dated 04.08.2016 passed in S.C. No. 109/2014 by the Principal Sessions Judge at Kolar whereunder the appellant - accused has been sentenced to undergo simple imprisonment for one year for offence under Section 342 of IPC and further sentenced to undergo simple imprisonment for five years and to pay fine of Rs.10,000/- and in default to undergo further imprisonment for one year for offence under Section 366- -5- NC: 2023:KHC:35846 CRL.A No. 1669 of 2022 C/W CRL.A No. 1683 of 2022 A of IPC. The trial Court has ordered both the sentences to run concurrently and has given the benefit of set off.
3. Learned counsel for appellant - accused in both the appeals filed an application under Section 482 read with Section 427(1) of Cr.P.C. praying for concurrent running of sentences passed in S.C. No. 109/2014 and Spl.C.C. No. 55/2014.
4. Heard learned counsel for appellant - accused and learned HCGP for respondent - State.
5. Learned counsel for appellant - accused would contend that incident in S.C.No. 109/2014 has taken place on 23.08.2013 and the incident in Spl.C.C. No. 55/2014 has taken place on 14.07.2013 and both the alleged offences have taken place within a span of two months. He further submitted that in both cases it is alleged that with an intention to rob the golden ornaments the appellant - accused enticed the victims. He further contended that appellant - accused has already completed 10 years 1 month of imprisonment and prayed for allowing the -6- NC: 2023:KHC:35846 CRL.A No. 1669 of 2022 C/W CRL.A No. 1683 of 2022 applications and order for concurrent running of the sentences passed in both the cases. He placed reliance on the decision of the Hon'ble Apex Court in the case of Anil Kumar Vs. State of Punjab reported in 2017 (1) SCR 418 and other decisions of other High Courts. Learned counsel for appellant - accused submits that he is not going to argue on the merits of the appeals.
6. Per contra, learned HCGP appearing for respondent - State would contend that there are 16 cases pending against the appellant - accused and imprisonment certificate itself shows that he has completed sentence in four cases. He contends that the appellant - accused is a psycho and he is a habitual offender committing similar offences. With this he prayed to reject the applications.
7. Considering the arguments advanced by both the learned counsel the following point arises for consideration:
Whether the appellant - accused has made out grounds for passing final order for -7- NC: 2023:KHC:35846 CRL.A No. 1669 of 2022 C/W CRL.A No. 1683 of 2022 running of both sentences in S.C. No. 109/2014 and Spl.C.C. No. 55/2014 concurrently?
8. On perusal of the facts of both the appeals it is clear that the appellant - accused, with an intention to rob the golden ornaments, had kidnapped victims and in one case he has committed sexual assault on the victim. Therefore, the offences alleged to have been committed by the appellant - accused in both the cases are similar. Even the imprisonment certificate dated 04.08.2023 produced by the learned counsel for appellant - accused will also indicate that the appellant - accused has been convicted in four other cases for offence under Section 363 of Cr.P.C. and other offences which indicate that he used to abduct the victims with an intention to rob them.
9. Section 427 of Cr.P.C. reads as under:
427. Sentence on offender already sentenced for another offence. (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent -8- NC: 2023:KHC:35846 CRL.A No. 1669 of 2022 C/W CRL.A No. 1683 of 2022 conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
2. When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
10. The general rule that there cannot be concurrency of sentence if conviction relates to two different transactions, can be changed by an order of the Court. There is no strait jacket formula for the Court to -9- NC: 2023:KHC:35846 CRL.A No. 1669 of 2022 C/W CRL.A No. 1683 of 2022 follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1) Cr.P.C. Depending on the special and peculiar facts and circumstances of the case, it is for the Court to make the sentence of imprisonment in the subsequent trial run concurrently with the sentence in the previous one.
11. The Hon'ble Apex Court in the case of Anil Kumar v. State of Punjab, reported in (2017) 1 S.C.R. 418 has held as under:
"7. After referring to V.K. Bansal's case, in Benson v. State of Kerala (2016) 10 SCC 307 : 2016 (9) SCALE 670, this Court directed the substantive sentences imposed on the appellant Benson to run concurrently. The appellant therein was convicted for the offences punishable under Section 379 and Section 414 read with Section 34 IPC in at least eleven cases. By a separate judgment, the appellant was convicted and sentenced in each of the aforesaid cases and total length of sentences in aggregate was around nineteen years.
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NC: 2023:KHC:35846 CRL.A No. 1669 of 2022 C/W CRL.A No. 1683 of 2022
8. In the present case, the appellant was earlier convicted under Section 22 NDPS Act and subsequently convicted under Section 27(b)(ii) and Section 28 of the Drugs and Cosmetics Act, 1940. Considering the nature of the offences for which the appellant was convicted and the facts and circumstances of the case, we deem it appropriate to direct that the sentences imposed on the appellant in FIR No.37 and complaint No.638 shall run concurrently. However, the fine amount and the default sentence or sentences are maintained. If the fine amount is not paid, the default sentence will run consecutively and not concurrently."
12. The Hon'ble Apex Court in the case of Benson Vs. State of Kerala reported in 2016 (10) SCC 307 by referring to V.K. Bansal's case has directed substantive sentence imposed on appellant to run concurrently as the appellant therein was convicted for the offence punishable under Sections 379 and 414 read with Section 34 of IPC in atleast 11 cases. The Hon'ble Apex Court in the case of
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NC: 2023:KHC:35846 CRL.A No. 1669 of 2022 C/W CRL.A No. 1683 of 2022 Iqram Vs. State of Uttar Pradesh and others reported in 2023 (3) SCC 184 has held as under:
"11. In Mohd. Zahid v. State, this Court interpreted the provisions of Section 427 Cr P.C after duly considering the precedents in the following terms: (SCC p. 440, para 17) "17. Thus from the aforesaid decisions of this Court, the principles of law that emerge are as under:
17.1. If a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such-
subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced.
17.2. Ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence.
17.3. The general rule is that where there are different transactions, different crime numbers and cases have been decided by the different judgment, concurrent sentence cannot be awarded under Section 427 Cr.P.C.
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NC: 2023:KHC:35846 CRL.A No. 1669 of 2022 C/W CRL.A No. 1683 of 2022 17.4. Under Section 427(1) Cr.P.C. the court has the power and discretion to issue a direction that all the subsequent sentences run concurrently with the previous sentence, however discretion has to be exercised judiciously depending upon the nature of the offence or the offences committed and the facts in situation. However, there must be a specific direction or order by the court that the subsequent sentence to run concurrently with the previous sentence."
12. The trial Judge, in the present case, granted a set- off within the ambit of Section 428/Section 31 Cr.P.C. No specific direction was issued by the trial court within the ambit of Section 427(1) so as to allow the subsequent sentences to run concurrently. All the convictions took place on the same day."
13. In the said decision the Hon'ble Apex Court has observed that "High Court ought to have intervened in the exercise of its jurisdiction by setting right the miscarriage of justice which would occur in the above manner, leaving the appellant to remain incarcerated for a period of 18 years in respect of his conviction and sentence in the nine
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NC: 2023:KHC:35846 CRL.A No. 1669 of 2022 C/W CRL.A No. 1683 of 2022 Sessions trials for offences essentially under the Electricity Act."
Considering the above, if offences committed are similar, the Court can exercise its discretion and order to run the sentences concurrently. As the appellant - accused is also alleged to have committed offences of abduction with an intention to commit robbery in both the cases, he is entitled for an order of running of the sentences concurrently in both the cases. The point is answered accordingly.
In the result, the following;
ORDER i. Both the appeals are disposed off.
ii. Sentence imposed in S.C. No. 109/2014 by the Principal Sessions Judge, Kolar, dated 04.08.2016 and sentence imposed in Spl.C. No. 55/2014 by the LIII Additional City Civil and Special Judge, Benglauru are ordered to run concurrently.
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NC: 2023:KHC:35846 CRL.A No. 1669 of 2022 C/W CRL.A No. 1683 of 2022 iii. Default sentence will run consecutively after completion of substantive sentences in case of default of payment of fine amount.
iv. I.A. No. 1/2023 in both the appeals stands allowed.
Sd/-
JUDGE LRS List No.: 1 Sl No.: 17