Vadiraja vs State By Cpi Brahmavar on 23 November, 2015

[Cites 7, Cited by 0]

Karnataka High Court

Vadiraja vs State By Cpi Brahmavar on 23 November, 2015

The petitioner is before this Court with a prayer for an order that the sentences imposed on him in three Sessions Cases passed by the District and Sessions Judge, Udupi, be ordered to be run concurrently. He is convicted in all the three cases for similar offences i.e., Sections 392 and 413 of IPC. The Sessions Court in each of the case imposed punishment of Rigorous Imprisonment of 7 years in each of the case. No set off was ordered. However, in appeals before this Court, partial relief was given. His conviction was affirmed and the sentence was modified by ordering R.I. of five years and fine with default clause and he was ordered for the benefit of set off under Section 428 of Cr.P.C. in each of the -3- case. The dates of judgment passed by the Sessions court, Udupi, Dist.Udupi, are as under:

1. S.C.No.81/2010 - 19.8.2011

2. S.C.No.101/2010 - 22.3.2012

3. S.C.No.104/2010 - 22.3.2012 In the second and third judgment, it was specifically ordered that the sentence shall run subsequent to serving of any previous sentence passed against this petitioner.

2. Sri.C.N.Raju, learned Counsel for the petitioner submits that petitioner is a poor person, having the responsibility of maintaining his family. He is in custody since 31.7.2010 and has completed the period of five years ordered by this Court in Crl.A.Nos.1005/2011 386/2012 and 387/2012. In view of the law laid down by the Apex Court, in State of Maharashtra and Another -vs- Najakat Alia Mubarak Ali reported in (2001) 6 SCC 311, the sentence will run concurrently in all the three cases and a direction may be issued to the concerned for his release.

3. Learned Additional S.P.P. while opposing the petition submits that, in appeals this Court has not interfered about -4- the order of the trial court whereby it was specifically ordered to the effect that the sentences in the aforesaid second and third case shall run consecutively after serving the sentence in the previous case. Even otherwise, the petitioner ought to have urged the prayer which is seeking in this petition before the appellate court which he has not done and there is no merit in the case.

4. Section 428 of Cr.P.C. mandates that period of detention undergone by an accused during investigation, enquiry or trial shall be given set off against the sentence of imprisonment, which mandatory provision is not adhered to by the Sessions Court. In appeal, this Court has made good the procedural lapse committed by the Sessions Court, thereby ordering set off under Section 428 of Cr.P.C. Having given the benefit of Section 428 of Cr.P.C. in all the three cases to the petitioner, the nice question of law that needs to be addressed is, whether the petitioner is entitled for an order to the effect that all the three sentences shall run concurrently? -5-

5. Section 428 of Cr.P.C., which is pressed into action, reads thus:

"428. Period of detention undergone by the accused to be set off against the sentence of imprisonment - Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.

Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section".

6. The word "same case" appearing in the above Section fell for consideration of their Lordships in State of Maharashtra (supra). In the said case, accused was sentenced and convicted in two criminal cases. Since he was arrested on the same day in connection with both cases, he remained in judicial custody in respect of both cases. The question that fell for consideration of Their Lordships was "is it permissible for him to claim the benefit of set off envisaged in -6- Section 428 of Cr.P.C. in both cases". By majority decision, it was held that the period of imprisonment undergone by an accused as a under-trial prisoner, investigation, enquiry or trial of a particular case irrespective of whether it was in connection with the very case or any other case, can be set off against the sentence of imprisonment imposed on conviction in that particular case. The words "same case" do not suggest that set off would be available only for the period undergone as an under-trial prisoner is in connection with the same case in which he was later convicted and sentenced to a term of imprisonment. Relevant paras of the judgment of the Apex Court in State of Maharashtra (supra) reads thus:

"38. The object of criminal justice system is to reform the criminal but not to encourage him for the repetition of crime. Penology has a twin object, i.e. (i) punishing the criminal to avoid repetition of crime, and

(ii) to endeavour for his reform wherever possible. The increasing crime in the country has seriously to be taken note of. Crime is an act of warfare against community touching new depths of lawlessness. The object of imposing deterrent sentences is to protect the community against callous criminals; to administer as clearly as possible to others tempted to follow into lawlessness on a war scale that if they are brought to and convicted, deterrent punishment will follow and to deter criminals from repeating their criminal acts in -7- future. Fazal Ali,J. in Maru Ram Vs. Union of India rightly observed: (SCC p.157, para 79) "The question, therefore, is - should the country take the risk of innocent lives being lost at the hands of criminals committing heinous crimes is the holy hope or wishful thinking that one day or the other, a criminal, however dangerous or callous he may be, will reform himself. Valmikis are not born everyday and to expect that our present generation, with the prevailing social and economic environment, would produce Valmikis day after day is to hope for the impossible."

39. Discretion of treating under-trial detention period may be relevant consideration for the Court while passing orders in terms of Section 427 of the Code but the accused cannot be permitted to claim set-off of the undertrial period undergone by him in connection with other cases. Powers of the Court to impose sentences should not be allowed to be regulated at the instance or discretion of the accused.

40. The fallout of the interpretation giving the benefit of detention during investigation, enquiry and trial in one case, in the other case, may also tempt the investigating agencies not to arrest the accused for the commission of the second offence pending conclusion of the trial and passing of sentence in the first case. After conviction and sentence in a criminal case, if arrested in the second case, the accused shall not be entitled to claim the benefit of Section 428 of the Code because the sentence, upon conviction, can obviously be not equated with the period of detention contemplated under Section 428 of the Code. As such, by adopting such a recourse, the courts would not, in any case, advance the interests of justice but actually and factually -8- frustrate its purpose defeating the concept of speedy trial in criminal cases (Per His Lordship K.T.Thomas).

44. The only question which according to me needs consideration is the true effect of the expression "same case" as appearing in Section 428 of the Code of Criminal Procedure. The provision is couched in clear and unambiguous language and states that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be one undergone by him during investigation, enquiry or trial in connection with the "same case" in which he has been convicted. Any other period which is not connected with the said case cannot be said to be reckonable for set-ff. The view of learned Brother Mr. Justice Thomas according to me accords the legislative intent. Acceptance of any other view would mean necessary (sic necessarily) either adding or subtracting words to the existing provision, which would not be a proper procedure to be adopted while interpreting the provision in question (Per His Lordship S.N.Phukan).

7. The law laid down by the Apex Court in the above said case is followed in Atul Manubhai Parekh -vs- Central Bureau of Investigation reported in (2010) 1 SCC 603 and Maliyakkal Abdul Azeez -vs- Assistant Collector, Kerala & Another reported in (2003) 2 SCC 439.

8. Coming back to the case on hand, the petitioner has the benefit of set off in all the three cases for the period he -9- was in custody simultaneously in respect of all the three cases. Having given the benefit of set off from the date of his custody till the date of judgment, it is out of logic to say that the punishment in the second and third cases will run after the punishment in the first case is served. The law nowhere presumes such breakup in the period of sentence.

9. This Court under Section 482 of Cr.P.C. exercises its inherent jurisdiction to pass necessary orders to give effect to any order under the Code. This is such a case for exercising the jurisdiction to give effect to the legislative intent of the Code of Criminal Procedure.

The petition is allowed. The sentences of five years as ordered by this Court in Crl.A.No.1005/2011 (S.C.No.81/2010); Crl.A.No.386/2012 (S.C.No.101/2010) and Crl.A.No.387/2012 (S.C.No.104/2010) shall run concurrently from the date the petitioner was taken to judicial custody i.e., on 31.7.2010.

Sd/-

JUDGE KNM/-

Unlock Advanced Research with PRISMAI

Karnataka High Court