K. Vijayasimha @ Vijaya @ ... vs State Of Karnataka
2021 Latest Caselaw 2459 Kant

                            :1:
                                                    R

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 29TH DAY OF JUNE, 2021

                         BEFORE

      THE HON'BLE MR.JUSTICE K.SOMASHEKAR

         CRIMINAL PETITION NO.5347 OF 2019
BETWEEN
K Vijayasimha @ Vijaya @ Vijayakumar
S/o Gururaj, Aged about 41 years
R/at No.394, 5th Cross
Vidyamanagara, Andrahalli Main Road
Vishwaneedam Post, Byadarahalli
Bengaluru - 560 091.
                                               ... Petitioner
(By Sri. Dilraj Jude Rohit Sequeira, Advocate for
    Smt. Lubna H.S - Advocate)

AND
1.    State of Karnataka
      By Kalasipalya Police Station
      Rep. by State Public Prosecutor
      High Court of Karnataka
      High Court Building
      Bengaluru - 560 001.

2.    Shabeer Ahmad
      S/o. Rafiq Ahmed
      Aged 49 years
      No.13, Mudlappa Street
      Doddamavalli
      Bengaluru - 560 024.
                                           ... Respondents
(By Sri Rahul Rai .K, HCGP for R-1;
    R-2 Served - unrepresented)
                             :2:



      This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure, praying to allow the
application and order of three sentences to run
concurrently, in C.C.No.24983/2017, C.C.No.25693/2017
and C.C.No.25691/2017 under Sections 454 and 380 of
IPC for a period of 03 years each by the Court of
VIII-Addl. CMM, Bangalore.

      This Criminal Petition coming on for Admission
through video conference, this day, the court made the
following:


                        ORDER

Learned counsel for the petitioner Shri Dilraj Jude

Rohit Sequeira, appears through video conferencing.

2. This petition is filed seeking concurrent service of

sentence rendered by the sentencing court in

C.C.No.24983/2017, C.C.No.25693/2017 and

C.C.No.25691/2017. But all these cases have been ended

in conviction for offences under Sections 454 and 380 of

the IPC, 1860 and the petitioner has been sentenced to

undergo simple imprisonment for a period of three years

for the offence under Section 454 of IPC and undergo

simple imprisonment for a period of three years for the

offence under Section 380 of the IPC, which two sentences

were to run concurrently. The same sentence has been

imposed by the Trial Court in respect of each of the cases

in C.C.No.24983/2017, C.C.No.25693/2017 and

C.C.No.25691/2017, which amounts to a total of nine

years. It is contended that this nine years service of

sentence is not in accordance with certain provisions of

the Cr.P.C. and even not in accordance with some

judgments rendered by the Hon'ble Supreme Court of

India by referring to Ramayana and also reformation of

the convicted accused and also criminal justice delivery

system.

3. Petitioner / accused has committed similar

offences under Sections 454 and 380 of the IPC thrice,

and because of committing similar offences thrice,

independent crime came to be registered by the police

having jurisdiction to deal the matters in respect of which

investigation was conducted and the I.O. laid the charge-

sheet against the accused. The aforesaid three cases have

been ended in conviction.

4. In the meanwhile of dictating this matter, the

learned counsel for the petitioner submits that the

petitioner said to be arraigned as accused and also

convicted accused in the aforesaid three cases, has

pleaded guilty.

5. Though the aforesaid three cases in respect of

which the accused has pleaded guilty, ended in conviction

for offences under Sections 454 and 380 of the IPC, but it

is relevant to refer to Section 375 of the Cr.P.C., which

reads thus:

"375. No appeal in certain cases when accused pleads guilty.-- Notwithstanding anything contained in section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal,-

(a) if the conviction is by a High Court;

     or
           (b) if the conviction is by a Court of
     Session,      Metropolitan          Magistrate        or

Magistrate of the first or second class, except as to the extent or legality of the sentence."

6. This is an appeal provision under the Cr.P.C. But

this petition has been filed under Section 482 Cr.P.C.

seeking an order of the three sentences to run

concurrently. This submission made by the learned

counsel for the petitioner is placed on record.

7. In the meanwhile, learned HCGP for the State

submits that the petitioner who is arraigned as accused in

the aforesaid three cases, all of which have been ended in

conviction for offences under Sections 454 and 380 of the

IPC. Apart from the present three cases, the accused is

also required involved in six other cases. In that, the

petitioner / accused is required to face trial in respect of

the cases in Cr.No.116/2017, Cr.No.212/2017,

Cr.No.242/2017 which are pending before the Court of

the XXIV ACMM, Bengaluru. Cr.No.116/2017 has been

registered for offences under Sections 454, 380, 411 and

413 IPC, while Cr.No.212/2017 and Cr.No.242/2017 have

been registered for offences under Sections 380, 454 and

457 of the IPC. The aforesaid three crimes are of the year

2017 and have been registered by the Vijayanagar P.S.

Bengaluru City. Three other cases in

C.C.No.10859/2018, C.C.No.5959/2018 and

C.C.No.20975/2018 are all charge-sheeted cases and

charge-sheet has been laid by the Vijayanagar P.S.,

Hanumanthanagar P.S. and Vyalikaval P.S. respectively

and two cases are pending before the Court of the XXIV

ACMM, Bengaluru and third case is pending before the

Court of the VIII ACMM, Bengaluru. In all the above

mentioned petitions, bail has been granted in favour of the

petitioner.

8. The modus operandi as revealed in the crime

stage and even in the charge-sheeted stage is that the

accused is involved in commission of offences by trespass

and committing theft.

9. When these cases are pending for investigating

stage and also charge-sheet has been laid and accused are

required to face trial, therefore, it is not proper to

persuade this matter for the present.

10. Keeping in view the involvement of the petitioner

/ accused in several cases and moreover three cases in

crime stage and three cases are in trial stage and the

accused is required to face trial, the Investigating Agency

is required to investigate the cases in order to lay a

charge-sheet as contemplated under Section 173(2) of the

Cr.P.C. by following the requisite conditions relating to the

offences. But at this juncture, though the learned counsel

for the petitioner has facilitated a number of citations in

support of his contention for seeking service of sentence in

respect of the three cases in C.C.No.24983/2017,

C.C.No.25693/2017 and C.C.No.25691/2017 to run

concurrently, but for the present, the petitioner / accused

is not deserving for the relief sought for even in view of

Section 427 Cr.P.C. even referring to Ramayana relating to

reformation of this accused. It cannot be accepted that

this accused would reform from the alleged offences, in

view of the same modus operandi adopted by him in all the

cases in lurking and trespassing and thereafter

committing theft. Therefore, it is not desirable to dwell

into exercising power under Section 482 Cr.P.C.

11. The power under Section 482 Cr.P.C. though it

is an inherent power, that power shall be exercised

judicially, judiciously, sparingly and even though the

power under Section 482 Cr.P.C. is a vast power given to

meet the ends of justice, that concept shall be in a wider

sense, which should not only be in favour of the accused,

but it should be equally in favour of the complainant as

well.

12. In the meanwhile of completion of the dictation,

learned counsel for the petitioner submits that the

petitioner / accused is not inclined to persuade this

matter and hence, seeks to withdraw the petition as not

pressed.

13. This submission of the learned counsel is placed

on record. However, in view of the fact that dictation has

been completed in this matter after considering the

submissions and contentions made by the learned counsel

for the petitioner as well as the counter arguments

advanced by the learned HCGP for the State, at this stage,

it is appropriate to dismiss this petition as being without

any merits.

Consequently, the petition stands dismissed.

Sd/-

JUDGE

KS