(Order of the court was made by M.CHOCKALINGAM, J.) There was no representation on behalf of the petitioners on the last hearing and even today.
2. Perused the averments made in the original petition and heard the learned Additional Public Prosecutor.
3. The petitioner seeks to set off the remand period of 316 days from 27.08.2002 to 09.07.2003 in Sessions Case No.72 of 2003 dated 09.07.2003 on the file of Additional District Judge, Fast Track Court No.I, Chennai.
4. The only grievance ventilated by the petitioners is that when the matter was taken up by the Fast Track Court, Chennai, the petitioners were awarded life imprisonment under
section 302 IPC along with fine and default sentence and also one month rigorous imprisonment under
section 341 IPC and the sentences were ordered to run concurrently; that an appeal was preferred therefrom in C.A.No.1283 of 2003 and the judgment of the trial court was affirmed by a judgment of this Court dated 26.10.2006; thus, the petitioners have been undergoing the sentence imposed by the trial court, which was subsequently affirmed by this Court; that they were in remand for 316 days i.e.from 27.08.2002 to 09.07.2003 and the remand period was not given set off by the learned trial judge; that under such circumstance, it becomes necessary to seek the relief before this court.
5. After going through the materials, the Court is of the considered opinion that the relief sought for by the petitioners could not be granted by this Court. This application is filed under
sections 482 and
428 of Criminal Procedure Code to set off the remand period. It is the settled principle of law laid down by the Apex Court in a decision reported in (2007) 1 SCC (Cri) 648 (M.P.KUDVA ..vs.. STATE OF A.P.) that in a given case like this, when the relief sought for has got to be given, it must be recorded by the trial court, namely, the Court of Session or the appellate court when the appeal is disposed of, and for that purpose, no question of exercising inherent jurisdiction arises while it was not exercised in appeal by the High Court and the relevant paragraph reads as follows:
"The provision of
Section 427 CrPC was not invoked in the original cases or in the appeals. A separate application was filed before the High Court after the special leave petitions were dismissed. Such an application was not maintainable. The High Court could not have exercised its inherent jurisdiction in a case of this nature as it had not exercised such jurisdiction while passing the judgments in appeal.
Section 482 CrPC was, therefore, not an appropriate remedy having regard to the fact that neither the trial Judge, nor the High Court while passing the judgments of conviction and sentence indicated that the sentences passed against the appellant in both the cases shall run concurrently or
Section 427 CrPC would be attracted. The said provision, therefore, could not have been applied in a separate and independent proceeding by the High Court. The appeal being devoid of any merit is dismissed".
Therefore, no question of ordering set off at this stage would arise by way of an independent original petition like this.
Following the ratio laid down by the Apex Court, this Court is of the considered opinion that it is not a fit case where the relief sought for by the petitioners could be granted. Accordingly, the criminal original petition fails and is dismissed.
gl To
1. The Additional District Judge, Fast Track Court, Chennai.
2. The Inspector of Police, D 1 Triplicane Police Station, Chennai.
3. The Public Prosecutor High Court, Madras