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2020 DIGILAW 529 (KAR)

Saheb Lal v. State Of Karnataka And Others

2020-02-24

H.B.PRABHAKARA SASTRY

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JUDGMENT H.B. Prabhakara Sastry, J. - The petitioner is the father of the life convict Sri Maktumbashya S/o Saheblal Jatagar who has been convicted by the learned II Additional District and Sessions Judge, Vijayapura (hereinafter for brevity referred to as Trial Court) in Sessions Case No. 103/2006 for the offence punishable under Sections 498A, 506 and 302 of the Indian Penal Code (hereinafter for brevity referred to as IPC). 2. The convict was sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/-, in default to suffer simple imprisonment for two months for the offence punishable under Section 302 of IPC. The convict was also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,500/-, in default to suffer simple imprisonment for one and half months for the offence punishable under Section 498A of IPC. Further, the accused was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 1,000/-, in default to suffer simple imprisonment for one month for the offence punishable under Section 506 of IPC. The Trial Court also observed that the accused was in judicial custody from 09.02.2006 and was entitled to set off for the punishment given under Sections 498A and 506 of IPC. Challenging the said judgment of conviction and order on sentence, the accused had preferred an appeal in Criminal Appeal No. 3580/2009 before a Division Bench of this Court which by its judgment dated 16.11.2011, allowed the appeal in part. The order of conviction and sentence for the offence under Sections 498A and 506 of IPC was set aside, however, the order on conviction for the offence under Section 302 of IPC and sentencing the accused to undergo imprisonment for life and to pay fine of Rs. 2,000/- was confirmed. 3. The present petitioner, who is the father of the accused in the present petition which is filed under Article 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code (hereinafter for brevity referred to as Cr.P.C.) has sought for a declaration to declare that the sentence of life imprisonment of the accused-Maktumbashya has commenced from 09.02.2006 which is the date of his arrest. He has also sought for issuance of writ of mandamus directing respondent No. 2 to record the date of commencement of life sentence of accused-Maktumbashya as 09.02.2006. 4. He has also sought for issuance of writ of mandamus directing respondent No. 2 to record the date of commencement of life sentence of accused-Maktumbashya as 09.02.2006. 4. The office has raised an objection regarding maintainability of the writ petition. However, after hearing the submission of learned counsel for the petitioner, the present petition was confined as the petition under Section 482 of Cr.P.C. only. As such, Articles 226 and 227 of the Constitution of India is not being made applicable to the present petition. 5. The learned High Court Government Pleader has taken notice for respondents and submits his oral objection. 6. With the consent of learned counsels from both side, the petition is taken up for its final disposal. 7. The only grievance of learned counsel for the petitioner is that admittedly the accused has been arrested on 09.02.2006, as such, the date of his imprisonment to be taken as 09.02.2006 and that clarification is now required to be given in the present petition. He further submits that the Trial Court has confined the application of set off under Section 428 of Cr.P.C. only with respect to the offences under Sections 498A and 506 of IPC, as such, the Jail Authorities are not considering the date as 09.02.2006. 8. The learned High Court Government Pleader submits that the judgment passed by the Trial Court by itself is clear on the aspect that the set off was given for the offences under Sections 498A and 506 of IPC, since those two offences carry with them specified period of imprisonment. Whereas the offence under Section 302 of IPC carries with it a minimum punishment of life imprisonment, the concept of set off considered by the Trial Court does not mean that the Jail Authorities would not consider the actual date of commencement of the period of judicial custody of the accused in the crime. 9. I find more force in the said submission of learned High Court Government Pleader. 9. I find more force in the said submission of learned High Court Government Pleader. Since the offences under Sections 498A and 506 of IPC prescribes a definite period of imprisonment, probably the Trial Court might have thought it fit to apply set off for those offences, whereas for the minimum punishment of life imprisonment, it did not speak about applicability of Section 428 of Cr.P.C. However, since the law is clear on the point regarding counting of the date from which the accused is said to be serving the sentence, I do not consider that there exists any ambiguity or confusion in the judgment of the Trial Court. Similarly, the judgment passed by a Division Bench of this Court in Criminal Appeal No. 3580/2009 is also clear in itself. If at all there is any confusion to the Jail Authorities regarding the computation of period of imprisonment which has already been undergone by the accused, then they would get it clarified in a process known to law. Thus, I do not find any reason to entertain the present petition. Accordingly, the petition stands dismissed.