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2009 DIGILAW 472 (KER)

Balan v. State of Kerala

2009-06-11

M.SASIDHARAN NAMBIAR

body2009
ORDER M. Sasidharan Nambiar, J. 1. Petitioner was convicted in SC 330/2007 by Assistant Sessions Court, Vadakara on 21/07/2008. He was sentenced to rigorous imprisonment for one year and fine of Rs.1,00,000/-and in default rigorous imprisonment for six months. Petitioner was granted set off for the period he was in remand in that case for the period from 15/06/2006 to 18/12/2006. 2. He was also convicted for the same offence in SC 150/2008 by the same Court on 03/09/2008. He was sentenced for rigorous imprisonment for one year and fine of Rs.1,00,000/-and in default rigorous imprisonment for six months. He was granted set off for the period from 28/06/2007 to 03/09/2008. 3. While undergoing the sentence in Central Prison, Kannur petitioner sent a petition through jail to grant him permission to run the sentence in both the cases concurrently. Based on that petition this Crl.MC was suo motu registered. Adv. M. H. Hanil Kumar was appointed to represent the petitioner. 4. Learned counsel appearing for petitioner and learned Public Prosecutor were heard and records in SC 330/2007 and 150/2008 in which the petitioner was convicted were called for and perused. 5. Though the petitioner sought a direction to run the sentences in two cases concurrently, petitioner is not entitled to get such a direction. Learned counsel appearing for the petitioner than submitted that though the Assistant Sessions Judge granted set off under Section 428 of Code of Criminal Procedure the period was not calculated correctly and the entire period petitioner was In remand was not taken into consideration and he is entitled to get set off for an additional period of seven months. Question is whether petitioner is entitled to get set off for any period other than the period granted by the Assistant Sessions Court. 6. Proceeding paper of SC 330/2007 on the file of Assistant Sessions Court with records of the case establish that after taking the case on file, case was posted to 06/11/2007 and production warrant was issued on 06/11/2007 to produce the petitioner on 05/12/2007. Proceeding paper in SC 330/2007 establish that petitioner was produced before the Assistant Sessions Court on 05/12/2007 and he was remanded in that case also. That remand continued till the date of his conviction on 21/07/2008. Learned Assistant Sessions Judge did not grant any set off for the period from 05/12/2007 till 21/07/2008. Proceeding paper in SC 330/2007 establish that petitioner was produced before the Assistant Sessions Court on 05/12/2007 and he was remanded in that case also. That remand continued till the date of his conviction on 21/07/2008. Learned Assistant Sessions Judge did not grant any set off for the period from 05/12/2007 till 21/07/2008. Petitioner was convicted in SC 150/ 2008 only on 03/09/2008. Till that day he was not undergoing any sentence and was only in custody as an under trial prisoner. When the petitioner was remanded by the Assistant Sessions Judge from 05/12/2007 till 21/07/2008, learned Assistant Sessions Judge should have granted set off for the said period also. Set off granted in SC 150/2008 for the period from 28/06/2007 to 03/07/2008 is correct. 7. In such circumstances, petition is disposed holding that petitioner is entitled to set off in SC 330/2007, in addition to the period granted by the Assistant Sessions Judge, for the period from 05/12/2007 to 21/07/2008. Intimate the orders of Superintendent of Central Prison, Kannur.