Vinod vs State By
2021 Latest Caselaw 174 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 5TH DAY OF JANUARY, 2021

                            BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION No.7066/2020

BETWEEN:
VINOD
S/O. CHELUVARAJ
AGED ABOUT 46 YEARS
R/AT. No.64
PATEL GUNDAPPA BLOCK
J.C.NAGAR
BENGALURU-560 058                        ... PETITIONER
               (BY SRI MUDDURAJ C, ADVOCATE)
AND:

STATE BY J.C.NAGAR POLICE
BENGALURU CITY
BENGALURU - 560 058
REPRESENTED BY SPP
BENGALURU 560 001                       ... RESPONDENT
             (BY SMT. NAMITHA MAHESH B.G., HCGP)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 428 OF
CR.P.C. PRAYING THIS COURT TO SET ASIDE THE ORDER DATED
04.06.2020 PASSED BY LXIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, CCH-64, CCC, BENGALURU IN S.C.NO.213/2005 AND
CONSIDER THIS PETITIONER TO BE ENTITILED TO CLAIM THE
BENEFIT OF SECTION 428 OF CR.P.C.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
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                           ORDER

This petition is filed under Section 428 of Cr.P.C. praying

this Court to set aside the order dated 04.06.2020 passed by

LXIII Additional City Civil and Sessions Judge (CCH.64) in

S.C.No.213/2005 and to consider this petition extending the

benefit under Section 428 of Cr.P.C.

2. The factual matrix of the case is that this petitioner

was tried for the offence punishable under Section 302 of I.P.C

in S.C.No.213/2005 and after the trial, he was convicted for the

offence punishable under Section 302 of I.P.C. and sentenced to

undergo imprisonment for life and to pay a fine of Rs.10,000/-

and in default to undergo simple imprisonment for one year.

The petitioner has been in custody for a period of 16 years

including under trial period and has been in judicial custody for

more than 14 years from the date of order of sentence dated

25.03.2006. The Jail Superintendent had addressed the letter to

the Court and prayed for an order under Section 428 of Cr.P.C.,

for which, the learned Judge passed the order that when the life

imprisonment has been imposed, the question of extending the

benefit under Section 428 of Cr.P.C. does not arise. The life

imprisonment means the imprisonment of the accused upto his

death. Hence, the present petition is filed before this Court

contending that the order of the learned Sessions Judge

amounts to alteration of the original judgment dated

25.03.2006, wherein the order has not been specific that the life

imprisonment means imprisonment upto the death of the

accused. Hence, prayed this Court to set aside the order and to

extend the benefit under Section 428 of Cr.P.C.

3. Learned counsel appearing for the petitioner would

submit that the very order dated 04.06.2020 passed by the

learned Sessions Judge amounts to modification of the earlier

judgment and such interpretation is not correct. The Sessions

Judge, while passing the order, has made an observation that

the benefit under Section 428 of Cr.P.C. does not arise since the

accused has been sentenced for life imprisonment which means

imprisonment upto death of the accused. Learned counsel would

also submit that in view of the modification of the order, it

affects the right of the petitioner. The petitioner is entitled for

the benefit under Section 428 of Cr.P.C. and hence, this Court

has to extend the benefit under Section 428 of Cr.P.C.

4. Per contra, learned High Court Government Pleader

appearing for the State would submit that the petitioner is not

entitled for the benefit under Section 428 of Cr.P.C. when the life

imprisonment has been imposed. Learned High Court

Government Pleader relied upon the judgment of the Apex Court

reported in Mohd. Munna v. Union of India and Others

reported in (2005) 7 SCC 417, wherein the Apex Court has

held that the life imprisonment is not equivalent to imprisonment

for 14 years or 20 years, life imprisonment means imprisonment

for the whole of the remaining period of the convicted person's

natural life. Hence, he is not entitled for the benefit under

Section 428 of Cr.P.C.

5. Having heard the submissions of the learned counsel

for the petitioner and the learned High Court Government

Pleader appearing for the State, it is the settled law that life

imprisonment means imprisonment for the whole of the

remaining period of the convicted person's natural life. The only

option available to the petitioner is to avail the remedy under

Section 433 of Cr.P.C. for commuting the sentence/remission

and the appropriate Government may commute without the

consent of the person sentenced as envisaged under Section

433(a) to (d) of Cr.P.C. The Apex Court in the case of

Shidagauda Nilgappa Ghandakar v. State of Karnataka

reported in AIR 1981 SC 764, has also held that Government

cannot reduce or commute sentence to less than 14 years for

weighty reasons as the crime was serious. The principles laid

down in the judgment referred supra by the learned High Court

Government Pleader appearing for the State is also applicable to

the case on hand and the question of extending the benefit

under Section 428 of Cr.P.C. does not arise as I have already

pointed out that the course open to the petitioner is to avail the

benefit under Section 433 of Cr.P.C. and the appropriate

Government may commute such sentence.

With this observation, the petition is disposed of.

Sd/-

JUDGE PYR