IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF MAY 2019 PRESENT THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA AND THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD CRIMINAL APPEAL NO. 692/2019 BETWEEN GAUHAR AZIZ KHOMANI S/O MOHAMMED LUKMAN KHOMANI AGED 37 YEARS R/O BARH SAMAILA VILLAGE, LALGANJ POST, DARBHANGA DISTRICT, BIHAR 844 121.
(BY SRI. MOHAMMED TAHIR, ADV.) AND 1. STATE OF KARNATAKA BY CUBBAN PARK POLICE, BANGALORE 560 001.
2. CHIEF SUPERINTENDENT BANGALORE CENTRAL JAIL PRAPPANNAGRAHARA, BANGALORE R1 & R2 REP. BY PUBLIC PROSECUTOR ADVOCATE GENERAL OFFICE HIGH COURT COMPLEX, BANGALORE-560 001.
(BY SRI. I.S. PRAMOD CHANDRA, SPP-II) ... APPELLANT ... RESPONDENTS THIS CRIMINAL APPEAL IS FILED U/S.21 OF NIA ACT PRAYING TO 1.SET ASIDE THE ORDER/CLARIFICATION VIDE DATED 08.04.2019 OF LEARNED NIA SPECIAL COURT (CCH-50) IN S.C.NO.871/2013 IN CONNECTION OF THIS CASE AND ALL OTHER FOUR CONNECTED CASES AT ANNEXURE-A. 2.DIRECTING THE RESPONDENT NO.2 TO IMMEDIATELY RELEASE THE APPELLANT I.E GAUHER AZIZ KHOMANI IN CRIME NO.92/2010 (S.C.NO.871/2013) CRIME NO.93/2010 (S.C.NO.869/2013) CRIME NO.94/2010 (S.C.NO.870/2013), CRIME NO.95/2010) (S.C.NO.872/2013) CRIME NO.96/2010 (S.C.NO.868/2013) BY CONSIDERING DATE OF ARREST I.E 23.02.2012 AS COMMENCEMENT DATE OF SENTENCES IN ALL CONNECTED CASED AS PER THE MANDATE OF SECTION 427 AND 428 OF CR.PC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT The only dispute in this appeal pertains to the computation of period of custody undergone by the appellant as “under trial prisoner” in Crime No.92/2010 (S.C.No. 871/2013), Crime No. 93/2010 (S.C.No. 869/2013), Crime No. 94/2010 (S.C.No. 870/2013), Crime No. 95/2010 (S.C.No. 872/2013) and Crime No. 96/2010 (S.C.No. 868/2013). In all these cases, after trial, the appellant has been convicted and has been awarded sentence of imprisonment for a term of 7 years and fine in each case. The order of sentence dated 09.07.2018 passed by the trial Court reads as under:
“ORDER OF SENTENCE The Accused No.5 shall undergo:
a. Imprisonment for 7 years including 1 year Rigorous imprisonment (Simple imprisonment for 6 years + 1 year R.I) for the offence punishable under Sec. 20 of Unlawful activities (Prevention) Act and he shall pay a fine of Rs.50,000/- (Rupees Fifty thousand only) for the said offence. In default to pay the fine, Accused No.5 shall undergo 1 year Rigorous imprisonment for such default;
b. Imprisonment for 7 years including 1 year Rigorous imprisonment (Simple imprisonment for 6 years + 1 year R.I) for the offence punishable under Sec. 18 of Unlawful activities (Prevention) Act R/w. Sec. 120B, 121, 121A and 123 of IPC and he shall also pay a fine of Rs.50,000/- (Rupees Fifty thousand only) for the said offence and in default to pay the said fine, Accused No.5 shall undergo 1 year Rigorous imprisonment for such default;
c. Imprisonment for 7 years including 1 year Rigorous imprisonment (Simple imprisonment for 6 years + 1 year R.I) for the offence punishable under Sec. 19 of Unlawful activities (Prevention) Act and Sec. 212 of IPC, he shall pay a fine of Rs.50,000/- (Rupees Fifty thousand only) for the said offence. In default to pay the fine, Accused No.5 shall undergo 1 year Rigorous imprisonment for such default.”
2. Similar sentence has been passed in all the above cases. Further, the trial Court has ordered that the substantive sentences in respect of the appellant passed in all the above connected cases shall run concurrently and that the appellant is entitled for set- off from the date of his custody as “under trial prisoner” in each of the above cases.
3. It is not in dispute that the appellant was taken into custody in respect of the cases on the following dates:
Event FIR is registered Body warrant taken by the police from the magistrate court Produced before the committal 23.02.2012 21.03.2012 12.04.2012 07.03.2013 07.03.2013 Court first time 4. According to the appellant, he has already served substantive sentence of imprisonment and the fine ordered by the trial Court is deposited; as such he is entitled for release in all the above cases. However, the jail authorities having refused to release the petitioner, clarification was sought from the trial Court and by the impugned order, the trial Court has held that the petitioner is yet to serve the sentence in S.C.Nos. 868/2013, 870/2013 and 872/2013.
5. The learned SPP-II does not dispute the fact that in S.C.Nos. 868/2013, 870/2013 and 872/2013, the appellant was produced under body warrant before the trial Court and was taken into custody on 03.04.2012. Though subsequently he was transferred to other jail in other cases registered against the appellant, yet, the custody of the appellant continued with the trial Court until the termination of proceedings. There is nothing on record to show that the appellant was enlarged on bail or was released in any of the above cases during the pendency of trial. Under the above circumstances, it is deemed that the legal custody of the appellant continued with the trial Court. As such the appellant is entitled to set-off the period of custody undergone by him as “under trial prisoner” in each of the above cases. In that view of the matter, appellant having already served full term of sentence awarded by the Court below and the fine amount is stated to have been deposited, trial Court was not justified in holding that the appellant is yet to serve remaining period of sentence awarded by the trial Court. To that extent, the appeal deserves to be allowed.
6. Accordingly, appeal is allowed. The impugned order in so far as the observation made by the trial Court that the appellant is still required to undergo sentence for the remaining period in S.C.Nos. 868/2013, 870/2013 and 872/2013 is set aside. The appellant is directed to be set at large forthwith in the above cases, if not required in any other case.
Registry to communicate this order to the jail authorities where is petitioner is housed forthwith.
Sd/- JUDGE Sd/- JUDGE VP