IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.8303/2018 BETWEEN:
Iliyas Pasha S/o. Moula Sab, R/o. Ward No.5, Behind Middle School, Bagepalli Town, Kolar District – 561207. ... Petitioner (By Sri. Nataraj.D, Advocate) AND:
Karnataka State By Bagepalli Police Station Rep. by State Public Prosecutor High Court of Karnataka Bangalore – 560001. ... Respondent (By Sri. S. Rachaiah, HCGP) This Criminal Petition is filed under Section 482 of Cr.P.C praying to 1. set aside the order in S.C.No.196/2006 of Bagepalli police station, dated 07.03.2007 passed by the Hon’ble Fast Track Court V at Chikkaballapur for the offence punishable under Section 302, 498A of IPC and to 2. Quash the sentence imposed under Section 498A in so far as it is directed to run subsequent to the sentence imposed under Section 302 of IPC and consequently. 3. Directed to be run concurrently along with sentence imposed under Section 302 of IPC.
This Criminal Petition coming for Admission, this day, the Court made the following:
O R D E R Heard Sri. Nataraj.D, learned counsel appearing for petitioner and Sri. S.Rachaiah, learned High Court Government Pleader for respondent-State.
2. Petitioner came to be tried in S.C.No.196/2006 by Fast Track Court.V., Chickballapur for the offences punishable under Section 498-A read with Section 34 of IPC and Section 302 of IPC and after full fledged trial, he was convicted for the said offences and ordered to undergo imprisonment for life and fine of Rs.20,000/- with default sentence of one year rigorous imprisonment for the offence punishable under Section 302 IPC; rigorous imprisonment for three months and fine of Rs.10,000/- with default sentence of rigorous imprisonment for 15 days for the offence punishable under Section 498A IPC. It was further ordered that punishment imposed for the offence punishable under Section 498A IPC is deemed to be merged in the higher punishment. However, it was made clear that in case of petitioner being released after 14 years by the Government in exercise of the power under Section 433 Cr.P.C. imprisonment ordered under Section 498A would run after punishment under Section 302 IPC being over. This order is challenged in this petition.
3. It is the contention of Sri. Nataraj.D, learned counsel appearing for petitioner that sentence so imposed ought to run concurrently and this fact has been lost sight of by the trial Judge as well as Appellate Court. Hence, he prays for this Court exercising extraordinary jurisdiction under Section 482 to modify the said punishment.
4. Per contra, learned HCGP would pray for dismissal of the petition contending that if such an exercise is undertaken, it would amount to granting a premium to the accused against whom order of conviction and sentence has been passed and has been affirmed by Division Bench of this Court and as such, seeks for dismissal of the petition.
5. Having heard the learned counsel appearing for parties and on perusal of judgment of trial Court, whereunder order of conviction and sentence has been passed against petitioner would disclose that undisputedly for the offence punishable under Section 302 of IPC, petitioner has been sentenced to life imprisonment and it is also clarified that, if the accused is released after 14 years, in case of State Government sentence him up to 14 years through exercise of its power under Section 433 of Cr.P.C., the imprisonment ordered for offence punishable under Section 498-A of IPC would start running after punishment under Section 302 of IPC is over. Learned trial Judge while sentencing petitioner, has clearly opined that sentence should not run concurrently. This judgment and order of sentence and conviction has been affirmed by the Division Bench of this Court in Criminal Appeal.No.491/2007 by judgment dated 21/09/2011. In fact, petitioner could have sought for the prayer now urged in this petition before the Appellate Court which decided the appeal against sentence imposed on petitioner and same seems to have been not done. Allegation made by prosecution with regard to death of wife of accused was on account of accused pouring kerosene and burning her. Exercising jurisdiction under Section 482 to modify the order of sentence and to hold the punishment of sentence imposed on petitioner for offence punishable under Section 498-A of IPC to run concurrently would definitely run contrary to the principles of sentencing. When trial Judge in clear terms has opined that it should not run concurrently, this Court does not find any good ground to modify the same. In that view of the matter, I do not find any merit in this petition.
Hence, criminal petition stands dismissed.
SD/- JUDGE SMJ