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2020 DIGILAW 381 (KAR)

Govinda And Another v. State Of Karnataka

2020-02-10

H.B.PRABHAKARA SASTRY

body2020
JUDGMENT 1. The present petitioners in this petition have challenged the confirmation of their conviction by the learned Ii Additional District and Sessions Judge at Raichur (hereinafter for brevity referred to as 'Sessions Judge') in Criminal Appeal No.31/2019 of their conviction by the learned Civil Judge and Judicial Magistrate First Class, Manvi (hereinafter for brevity referred to as 'Trial Court') in C.C.No.172/2018 on 30-07-2019, for the offences punishable under Sections 380 and 457 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC'). 2. Though the matter was slated for admission, however, with the consent from both side, the matter is taken up for its final disposal. 3. Learned High Court Government Pleader is appearing for the respondent State. 4. Learned counsel for the petitioners in his argument submitted that, when the Sessions Judge in Criminal Appeal No.31/2019 has held that he has partly allowed the appeal and modified the impugned judgment of the Trial Court by holding that the accused are entitled for a set off under Section 428 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.'), the same means that the accused should be released forthwith by holding that the period of judicial custody undergone by them in the matter is suffice for the sentence awarded by the Trial Court. In that regard, the order of the Trial Court on sentence ought to have been specifically modified by the learned Sessions Judge otherwise the Sessions Judge ought not to have used the word modified in his impugned judgment. 5. Learned High Court Government Pleader in his argument submitted that the impugned judgment of the learned Sessions Judge is very clear and he has modified the order on sentence of the Trial Court only to the extent by holding that the accused Nos.1 and 2 are entitled for a set-off under Section 428 of the Cr.P.C. which cannot be construed that, the period of judicial custody undergone by the accused was adjusted to the total sentence which was required to be served by them. 6. The Trial Court in its order on sentence has observed as below:- 'For the offence under Section 380 of IPC, the convicted person No.1 and 2 is sentenced to under go simple imprisonment for a period of One year and pay a fine of Rs.4,000/- in default they shall undergo simple imprisonment for two months. 6. The Trial Court in its order on sentence has observed as below:- 'For the offence under Section 380 of IPC, the convicted person No.1 and 2 is sentenced to under go simple imprisonment for a period of One year and pay a fine of Rs.4,000/- in default they shall undergo simple imprisonment for two months. For the offence under Section 457 of IPC, the convicted person No.1 and 2 is sentenced to under go simple imprisonment for a period of Three years and pay a fine of Rs.6,000/-, in default they shall undergo simple imprisonment for three months. It is made clear that all the above sentence shall run concurrently. The property seized in this case one broken lock and lock as mentioned in P.F.No.111/2017 Dated:30.07.2017 being worthless is ordered to be destroyed after the appeal period is over. Item No.1 to 9 which are mentioned in PF No.26/2018 dated 04.02.2018 are given to the interim custody of owner by the investigation officer made absolute after appeal period is over. The bail bond of accused persons and their surety bonds shall stand cancelled forthwith. Office to supply a free copy of judgment to convicted persons in jail. Intimate the jail authority.' 7. The operative portion of the judgment of the learned Sessions Judge in Criminal Appeal No.31/2019 reads as below:- 'The appeal filed by the Appellants/accused No.1 and 2 is hereby allowed in part. Consequently, the impugned judgment dated 30.7.2019 in C.C.No.172/2018 on the file of learned trial Court is hereby modified and the accused No.1 and 2 are entitled for set off u/S.428 of Cr.P.C. for the period already undergone by them as under trial prisoners. Send a copy of this judgment along with L.C.Rs. to the trial Court forthwith.' Section 428 of Cr.P.C. reads as below:- '428. Send a copy of this judgment along with L.C.Rs. to the trial Court forthwith.' Section 428 of Cr.P.C. reads as below:- '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.' 8. A reading of the above three extracts would go to show that, though the accused/petitioners were entitled for a set off of the period of detention undergone by them against the sentence of imprisonment, the learned Sessions Judge observed that the Trial Court has not made a specific order in that regard in its order on sentence, as such, it has modified the impugned judgment holding that the accused Nos.1 and 2 are entitled for set off under Section 428 of Cr.P.C. for the period already undergone by them as under trial prisoners. 9. To ascertain the meaning what the learned Sessions Judge intended to have assigned in the said operative portion of the order can be gathered in its discussion at paragraphs 24 and 25 of the impugned judgment. At para-24, the learned Sessions Judge has observed as below:- '.The principles laid down in the above authorities relied on behalf of the accused persons also applicable to the present case on hand and I have no hesitation to hold that the accused persons were in the custody of the learned trial Court in the present case from 15.11.2017. That being so, the learned trial Court ought to have considered the extending the benefit of Section 428 of Cr.P.C. to the accused persons. That being so, the learned trial Court ought to have considered the extending the benefit of Section 428 of Cr.P.C. to the accused persons. Interestingly, the impugned judgment is totally silent on this important aspect.' At para-25 of the same judgment, the learned Sessions Judge has observed as below:- 'Section 428 of Cr.P.C. provides for set off of the period of detention undergone by the accused persons during trial against the sentence of imprisonment. The learned trial Court has convicted the appellants for offences u/Ss.380 and 457 of I.P.C. and sentenced them to undergo simple imprisonment for one year and three year respectively and to pay fine for both the offences. Admittedly, the appellants have deposited the fine amount before the learned trial Court. The substantial sentences imposed on the appellants were also directed to run concurrently by the learned trial Court. As stated supra, the accused No.1 and 2 are deemed to be custody of the learned trial Court in the case on hand from 15.11.2017 and they are legally entitled for set off for the period already undergone by them as under trial prisoners under the provisions of Section 428 of Cr.P.C. Therefore, the learned trial Court is not justified in not extending the benefit of Section 428 of Cr.P.C. and to that extent, the impugned judgment requires to be modified. Hence, I record my finding on point No.1 in the 'affirmative' and point No.2 'partly in the affirmative'.' 10. A reading of the said judgment of the learned Sessions Judge nowhere gives any impression that the learned Sessions Judge intended to appropriate the period of imprisonment or judicial custody that is already said to have been undergone by the accused as the completion of the entire term of imprisonment of three years by the accused. Nowhere the learned Sessions Judge had shown his intention or entitlement of the accused for any such appropriation or adjustment of the sentence undergone as the full and final or the completion of the sentence in its entirety. The learned Sessions Judge has made it clear that the period of custody already undergone by the accused as under-trial prisoners must be given a set off in the total sentence for which they were sentenced. The learned Sessions Judge has made it clear that the period of custody already undergone by the accused as under-trial prisoners must be given a set off in the total sentence for which they were sentenced. However, no where the learned Sessions Judge has meant that the period undergone by the petitioners/accused itself is suffice as against the three years of simple imprisonment ordered against them for the offence punishable under Section 457 of IPC. The term set off cannot be construed as appropriating the sentence undergone as the completion of the total sentence of imprisonment ordered against them. On the other hand, the said set off is only a deduction to be given in the total sentence ordered against them of that particular period upto which the accused have already undergone the period in judicial custody or any imprisonment. Thus, I do not find any reason to entertain the present petition. Accordingly, the petition stands dismissed.