Sri. Puttanaika vs State Of Karnataka
2023 Latest Caselaw 6986 Kant

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                                                                    NC: 2023:KHC:36142
                                                                CRL.P No. 9280 of 2023




                             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                DATED THIS THE 5TH DAY OF OCTOBER, 2023

                                                      BEFORE
                         THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
                                   CRIMINAL PETITION NO. 9280 OF 2023
                        Between:

                        Sri. Puttanaika
                        S/o. Late Ruplanaika
                        Aged about 60 years,
                        Y. Mallapura Grama,
                        Sigatagere Hobli,
                        Kadur Taluk
                        Chikkamagaluru Taluk-577101.
                                                                            ...Petitioner
                        (By Sri. Monesh Kumar K.B., Advocate)

                        And:

                        1.    State of Karnataka
                              Department of Home,
Digitally signed by B         Vidhana Soudha
K
MAHENDRAKUMAR                 Bengaluru-560001
Location: HIGH                Rep. by its Secretary
COURT OF
KARNATAKA
                        2.    Chief Superintendent
                              Central Prison,
                              Parappana Agrahara
                              Bengaluru-560100
                                                                         ...Respondents
                        (By Smt. Waheeda M.M., HCGP)

                             This Criminal Petition is filed u/s.482 Cr.P.C. praying to
                        hold that sentence of the petitioner must serve in
                        S.C.No.181/2003 passed by the FTC-II, Tumakuru, dated
                        22.01.2005 produced as Annexure-B to run concurrently with
                        the   sentence   already    served     in   another   case   in
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                                             NC: 2023:KHC:36142
                                       CRL.P No. 9280 of 2023




Crl.A.No.14/2004    dated    20.08.2007      arising   out    of
S.C.No.209/2002 produced as Annexure-D and direct that
respondent no.2 to release the petitioner forthwith and set him
at liberty.

      This Criminal Petition, coming on for admission, this day,
the court made the following:

                           ORDER

The petitioner who was tried for the offence punishable under Section 395 IPC in S.C.No.181/2003 on the file of Fast Track Court-II, Tumakuru was convicted and sentenced to undergo imprisonment for five years and pay fine amount. The judgment of conviction and order of sentence has attained finality. The petitioner was also tried in S.C.No.211/2001 for the offence punishable under section 395 IPC wherein he was convicted to undergo imprisonment for ten years. Likewise, he was tried for the offences under Section 395 IPC in S.C.No.209/2002, S.C.No.213/2002 and S.C.No.170/2002 and sentenced to undergo imprisonment for a period of eight years, seven years and four years respectively.

2. The petitioner has invoked the extraordinary jurisdiction of this court for extending the benefit of Section 427(2) Cr.P.C. to hold that the order of sentence passed in S.C.No.181/2003 to run concurrently with the sentences passed in S.C.No.211/2002, S.C.No.209/2002 and S.C.No.213/2002 and S.C.No.170/2002.

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3. Section 427 of Cr.P.C. which is pressed into service reads thus:

"427. Sentence on offender already sentenced for another offence.- (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:

Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.

(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a

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term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence."

4. The Hon'ble Supreme Court in Vicky Alias Vikas Vs. State (NCT of Delhi) - (2020)11 SCC 540, at para 16 and 17 has held as follows:

"16. Coming to the facts of the instant case, we find that the appellant is a young man with roots in his family. The appellant has already undergone 10 years of imprisonment for conviction in FIR No.64/2011. The appellant is currently undergoing imprisonment for conviction in FIR No.67/2011 out of which he has already undergone 01 year 06 months and 16 days as of 29.01.2020. As per status report of the DGP (Prison), during the trial in FIR No.67/2011, the appellant was in custody for 01 year 02 months and 17 days i.e. with effect from 10.05.2011 to 27.07.2012. If the appellant is to undergo the sentences consecutively, the appellant has to undergo another about five years plus four years of imprisonment for the conviction in FIR No.263/2009.

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17. Pursuant to the order dated

13.12.2019, the Probation Officer, Department of Social Welfare, Govt. of NCT of Delhi had sent the report dated 10.01.2020 stating the family background and also that there is ample scope of improvement in the behaviour of the appellant and that he may be given a chance for reformation and reintegration with the family and the society. As per the report filed by the Probation officer dated 10.01.2020, on visiting the residential address of the appellant, it was found that his family is very poor and residing in a 50 yard house for the last 20 years. The father of the appellant is 58 years old, having ill health and the only bread winner in the family, was working as carpenter. The mother of the appellant was suffering from cancer and was not able to take treatment due to the poor economic condition. The father of the appellant submitted that the appellant was helping in his work before conviction. The elder sister of the appellant is married, but since the last one and a half year, she has been living in her maternal house due to domestic violence in her in-laws' house. On enquiring from neighbours, they reported in favour of the appellant and his

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family. The family of the appellant expressed positive attitude to be reunited with the appellant and desired to live a normal social life. The appellant has full acceptance of his family and the appellant has also shown keen interest and willingness to re-unite with them."

5. The co-ordinate bench of this court in Crl.P.No.2423/2017 in identical circumstances, at Para 4 has held as follows:

"4. In the light of the above provision enabling the Court to hold that subsequent sentence to run with the previous sentence imposed and in the instant case, petitioner having already been convicted for life imprisonment in S.C. No.430/2007 by judgment dated 22.07.2010 and was already undergoing sentence when he came to be convicted in S.C.No.102/2011 on 29.1.2015 and sentenced to undergo rigorous imprisonment for seven years, petitioner would be entitled to the benefit of Section 427(2) of Cr.P.C. namely it can be ordered to be run concurrently. In fact, in the judgment rendered in S.C.No.102/2011, learned Sessions Judge had noticed that accused therein was already in judicial custody

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(i.e., in S.C.No.430/2007) from past 8 years. However, for reasons best known, the fact of petitioner herein having been convicted and sentenced to undergo life imprisonment in S.C.No.430/2007 as confirmed in Criminal Appeal No.1086/2010 was not brought to the notice of the Court which sentenced petitioner to undergo 7 years rigorous imprisonment in S.C.No.102/2011 dated 29.1.2015.

Hence, for the reasons aforestated, petition is hereby allowed and it is hereby ordered that sentence passed against petitioner in Crl.A.No.1086/2010 and S.C.No.102/2011 shall run concurrently."

6. In view of the provisions contained in sub-

section 2 of section 427 Cr.P.C. and also the ratio laid down by the Hon'ble Supreme Court and this court, the petitioner having already been convicted and served the sentence for more than thirty years, which is evident from the imprisonment certificate at Page 172, Annexure 'G', is entitled to the benefit of section 427(2) Cr.P.C. and the sentence passed in S.C.No.181/2003 shall run concurrently. However for the reasons best known, the fact of petitioner herein having been convicted and

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sentenced to undergo imprisonment in other criminal proceedings was not brought to the notice of the court which sentenced the petitioner to undergo imprisonment in S.C.No.181/2003.

7. For the reasons stated above, the petition is hereby allowed and it is hereby ordered that sentence passed against the petitioner in S.C.No.181/2003 and S.C.No.211/2020, S.C.No.209/2002, S.C.No.213/2002 and S.C.No.170/2002 shall run concurrently.

Sd/-

JUDGE

SD