IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15th DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.397/2018 BETWEEN:
State by Bilikere P.S., Hunsur, Represented by State Public Prosecutor High Court Building Bengaluru-560 001.
(By Sri S.T. Naik, HCGP) AND:
1. Mahesha @ Mahesh Kumar S/o Mahadeva Shetty Aged about 30 years D.No.4, Ranganatha Extension Hunsur-587 119.
2. Mahadeva @ Mahadevanayaka S/o Muniyappanayaka Aged about 33 years Do. No.28, 1st Ward, Ranganatha Extension Hunsur-587 119.
3. Chenappa @ Pete S/o late KCP Chennappa Aged about 25 years …Petitioner C/o Shivanna, Ranganatha Extension Hunsur-587 119.
4. G. Shankarrao @ Raya S/o Gangaram Rao Aged about 27 years Tempo Travels Driver No.79, 1st Main Road, Laggare Main Road Narasimhaswamy Extension Hunsur-587 119.
5. Kumara @ Mavutha S/o late Somashekar Aged about 31 years Auto Driver 5th Ward, Kalkunike Hunsur-587 119.
… Respondents This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the judgment and order dated 14.11.2017 passed in Criminal Appeal No.101/2015 on the file of the Court of VIII Additional District and Sessions Judge at Mysore, sitting at Hunsur, and to modify the judgment and order dated 02.01.2015 passed in C.C.No.1194/2014 on the file of the Additional Senior Civil Judge and JMFC, Hunsur by imposing maximum sentence provided for the offences punishable under Sections 457, 380, 411 r/w Section 34 of Indian Penal Code.
This Criminal Revision Petition coming on for Admission this day, the Court made the following:-
O R D E R Heard the learned High Court Government Pleader and perused the records.
Though this petition is posted for admission, with the consent of the learned High Court Government Pleader, it is taken up for final disposal.
Respondents No.1 to 5 are the accused persons in C.C.No.1194/2014 on the file of Additional Senior Civil Judge and J.M.F.C., Hunsur and they were charged under Sections 457, 380, 411 r/w Section 34 of IPC.
2. The brief facts of the case are that on 09.08.2010, during night hours, accused Nos.1 to 4 with a common intention, committed lurking house trespass by breaking open the lock of college committed theft of gas cylinders, rice, dal, vessels and sold gas cylinder to accused No.5, who knowing fully well that the said property was stolen property, purchased the same and thereby, committed the alleged offences. On the basis of the complaint, a case has been registered and charge sheet has been filed.
3. The trial Court framed the charges for the offences punishable under Sections 457, 380, 411 r/w Section 34 of IPC and after framing the charge the accused persons filed an application to plead guilt and give set off as they have undergone custody period more than the punishment. The trial Court sentenced accused Nos.1 to 4 to undergo imprisonment for a period of 7 months and to pay fine of Rs.150/- each for the offence punishable under Section 457 r/w 34 of IPC and sentenced to imprisonment for a period of 6 months and to pay a fine of Rs.150/- each for the offence punishable under Section 380 r/w 34 of IPC and sentences shall run concurrently.
Accused No.5 is convicted for the offence under Section 411 of IPC and sentenced to imprisonment for 6 months and to pay fine of Rs.100/-.
In default to pay fine, they shall undergo simple imprisonment for further period of one month.
Period spent by all accused as under trial is given set off. Being aggrieved by the said order of sentence passed by the Court below, State preferred appeal before the first appellate Court. The first appellate Court dismissed the appeal by confirming the order of the trial Court. Being aggrieved by the same, the State has preferred the present revision petition.
4. Though the prosecution has submitted that they have no objection for having imposed sentence by the trial Court, in the appeal it has been contended about the inadequacy of the sentence passed by the trial Court. The appellate Court by going through the judgment of the trial Court has come to the conclusion that the sentence imposed by the trial Court is sufficient and dismissed the appeal. Challenging the same, the State is before this Court.
5. As could be seen from the records, already the accused Nos.3 and 4 have undergone imprisonment for a period of more than four years in connection with the said case. Accused No.1 was in custody for seven and half months, accused No.2 was in custody for more than one year, accused No.5 is in custody for a period of six months. The trial Court relied upon the decision in the case of Atul Manubhai Parekh Vs. CBI, reported in 2010 Crl.L.J. page 2113, wherein it is held that in order to secure the benefit of Section 428 of Cr.P.C., the accused had to show that they had been detained in prison for the purpose of investigation, enquiry of trial of the case, for which they were later on convicted and sentenced, such period can also be taken into consideration while imposing sentence and set off can be given.
Even the appellate Court by relying upon the decision of the Apex Court in the case of Alister Anthony Pareira Vs. State of Maharastra reported in AIR 2012 SC 3802, has come to the conclusion that the trial Court has not committed any illegality in sentencing the accused in the manner that is done by giving set off to the period of imprisonment accused have already undergone.
6. On perusal of the above said judgment, the trial Court and the first appellate Court have considered the said fact and have rightly decided the case on merits.
7. This Court in the case of State by Bilekere Police Station Vs. Mahesh @ Mahesh Kumar and others in Criminal Revision Petition No.1318/2017 c/w Criminal Revision Petition No.1319/2017 dated 12.1.2018 has confirmed the said orders in a similar way.
8. On close reading of the facts and materials, there are no other serious allegations made as against the petitioners/accused to show that they are antisocial elements and they cause any damage to the public in future.
9. Under the said facts and circumstances, I am of the considered opinion that, the State has unnecessarily filed the appeal before the first appellate Court and also filed a revision before this Court. The orders passed by the trial Court and the first appellate Court does not require any interference and they are in accordance with law.
Accordingly, the revision petition is dismissed and accordingly it is dismissed.
Sd/- JUDGE *AP/-