Nagaraju vs State Of Karnataka
2021 Latest Caselaw 609 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 11TH DAY OF JANUARY, 2021

                              BEFORE

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

                CRIMINAL PETITION No.7480/2020

BETWEEN:

Nagaraju S/o Late Papaiah
Aged about 40 years
Currently in judicial custody at:
Bangalore Central Jail
Parappanna Agrahara
Bangalore.                                          ... Petitioner

       (By Sri Jagadeesha B N, Advocate)

AND:

State of Karnataka
By K G Halli Police Station
Bangalore
Represented by the
Special Public Prosecutor
High Court Building
Bangalore-560 001.                                   ... Respondent

       (By Sri K S Abhijith, HCGP)

       This criminal petition is filed under section 428 of Cr.P.C.
praying this Court to hold that the order dated 18.06.2011 passed
by the Additional Sessions Judge and P.S., FTC-III, Mayo Hall Unit,
Bangalore in S.C.No.356/2008 shall read to state and imply that
the petitioner shall be entitled to set off the term of imprisonment
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imposed on him upon conviction against the term of imprisonment
already undergone by him during the trial.



      This criminal petition coming on for admission this day, the
court made the following:


                            ORDER

This petition is filed under Section 482 read with

Section 428 of Cr.P.C. praying this Court to hold the order

dated 18.06.2011 passed by Hon'ble Additional Sessions

Judge & Presiding Officer, FTC-III, Mayo Hall Unit, Bengaluru

in S.C.No.356/2008, shall read to state and imply that the

petitioner shall be entitled to set off the term of imprisonment

imposed on him.

2. The factual matrix of the case is that this

petitioner was tried for the offence punishable under Sections

143, 147, 324, 307, 302 read with 149 of I.P.C in

S.C.No.356/2008 and after the trial, accused No.1 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.15,000/- and in default to undergo simple

imprisonment for one year. The petitioner was in judicial

custody for the entire duration of the trial from 30.11.2007

till his conviction i.e., 11.06.2011. The Trial Court ought to

have directed that the period of detention undergone by him

during the investigation, inquiry and trial to be set off against

the term of imprisonment imposed on him on such conviction

mandated under the provision of Section 428 of Cr.P.C. and

that the petitioner's term of imprisonment shall be restricted

to the remainder, if any, of the term of imprisonment imposed

on him. Hence, the present petition is filed before this Court

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 18.06.2011 passed by

the learned Sessions Judge is erroneous as the Trial Court

failed to set off the period of detention undergone by accused

No.1 in judicial custody during the investigation, inquiry and

trial from the 30.11.2007 till the date of his conviction

against the term of imprisonment imposed on him on such

conviction as mandated under Section 428 of Cr.P.C. and

therefore, this Court has to extend the benefit under Section

428 of Cr.P.C. in favour of the accused No.1.

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

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