Nagappa S/O Yallappa Gotanavar vs The State Of Karnataka
2024 Latest Caselaw 10942 Kant

Karnataka High Court

Nagappa S/O Yallappa Gotanavar vs The State Of Karnataka on 23 April, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

                                                     -1-
                                                           NC: 2024:KHC-D:6735
                                                           CRL.P No. 101075 of 2024




                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                  DATED THIS THE 23RD DAY OF APRIL, 2024
                                                  BEFORE
                           THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                  CRIMINAL PETITION NO. 101075 OF 2024
                      BETWEEN:
                      1.     NAGAPPA S/O YALLAPPA GOTANAVAR
                             AGE. 60 YEARS, OCC. AGRICULTURIST,
                             R/O. KURUBAGONDA VILLAGE,
                             TQ. & DIST. HAVERI-581110.

                      2.     HANUMANTHAPPA DURUGAPPA KERUDI,
                             AGE. 49 YEARS, OCC. COOLIE,
                             R/O. KURUBAGONDA VILLAGE,
                             TQ. & DIST. HAVERI-581110.
                                                                      ... PETITIONERS
                      (BY SRI. BASAVANA GOUDA T., ADVOCATE)

                      AND:
                      THE STATE OF KARNATAKA,
                      CIRCLE INSPECTOR OF POLICE,
                      BYADGI POLICE STATION,
                      R/BY STATE PUBLIC PROSECUTOR,
                      HIGH COURT OF KARNATAKA,
                      DHARWAD-580011.
Digitally signed by
                                                                      ... RESPONDENT
VIJAYALAKSHMI
M KANKUPPI
                      (BY SRI. PRAVEEN K. UPPAR, AGA)
Location: HIGH
COURT OF
KARNATAKA
DHARWAD
                           THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
BENCH
                      SEEKING TO DIRECT THE CONCERNED JAIL AUTHORITIES TO
                      RELEASE THE PETITIONERS, ACCUSED NO.1 AND 5 IN BELOW
                      MENTIONED CASES, WHILE DIRECTING THAT THE CONVICTIONS
                      RUN CONCURRENTLY IN CC NO.627/2002, CC NO.628/2002, CC
                      NO.629/2002,  FOR THE OFFENCES P/U/SEC. 457, 380 OF IPC
                      DATED 07.10.2008, PASSED BY THE LEARNED CIVIL JUDGE (JR.DN)
                      AND JMFC BYADGI, AND MODIFIED BY THE JUDGMENT AND
                      CONVICTION ORDER IN CRL.APPEAL NO.69/2008, CRL.APPEAL
                      NO.70/2008, CRL.APPEAL NO.71/2008 DATED 15.07.2013, PASSED
                      BY THE LEARNED II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
                      HAVERI (SITTING AT RANEBENNUR), WHICH WOULD MEET THE
                      ENDS OF JUSTICE.
                                 -2-
                                        NC: 2024:KHC-D:6735
                                        CRL.P No. 101075 of 2024




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

                              ORDER

The petition is filed by accused Nos.1 and 5 to release the

petitioners directing the sentences against the petitioners in CC

Nos.627/2002, 628/2002 and 629/2002 dated 07.10.2008

passed by the Civil Judge (Junior Division) and JMFC, Byadgi

and modified by the appellate Court in the judgments dated

15.07.2013 passed in Crl.A. Nos.69/2008, 70/2008 and

71/2008 by the II Additional District and Sessions Judge,

Haveri (sitting at Ranebennur) to run concurrently.

2. The petitioners and other accused were convicted in

the following cases:

1) C.C No.627/2002 for the offences punishable under

Section 457 r/w Section 149 of IPC sentenced to

undergo simple imprisonment for a period of two years

each and further sentenced to pay a fine of Rs.500/-

each in default of payment of fine to suffer simple

imprisonment for a period of one month each. They

further sentenced to undergo simple imprisonment for

a period of two years each for the offences punishable

NC: 2024:KHC-D:6735

under Section 380 r/w Section 149 of IPC and pay a

fine of Rs.500/- each in default of payment of fine to

undergo simple imprisonment for a period of one

month each. The trial Court has ordered that both the

sentences to run concurrently.

2) The petitioners were also sentenced in CC

No.628/2002 to undergo simple imprisonment for a

period of two years each for offences punishable under

Section 457 r/w Section 34 of IPC and to pay a fine of

Rs.500/- each and in default of payment of fine to

undergo simple imprisonment for a period of one

month each and simple imprisonment for a period of

two years and to pay a fine of Rs.500/- each in default

of payment of fine to undergo simple imprisonment for

a period of one month each for the offences

punishable under Section 380 r/w Section 34 of IPC.

The trial Court has ordered that both the sentences to

run concurrently.

3) The petitioners were also sentenced in CC

No.629/2002 sentenced to undergo simple

imprisonment for a period of two years each for

NC: 2024:KHC-D:6735

offences punishable under Section 457 r/w Section 34

of IPC and to pay a fine of Rs.500/- each and in

default of payment of fine to undergo simple

imprisonment for a period of one month each and

simple imprisonment for two years each and to pay a

fine of Rs.500/- each in default of payment of fine to

undergo simple imprisonment for a period of one

month each for the offences punishable under Section

380 r/w Section 34 of IPC. The trial Court has ordered

that both the sentences to run concurrently.

3. The petitioners have challenged the said judgments

and order of sentences passed in the above said three cases in

Crl.A Nos.69/2008, 70/2008 and 71/2008 before the II

Additional District and Sessions Judge, Haveri (sitting at

Ranebennur). All the three appeals were allowed in part by the

Judgments dated 15.07.2013 confirming the conviction and

reducing the sentence to one year each for the aforesaid

offences maintaining the fine of Rs.500/- with default sentence

as ordered by the learned Magistrate.

NC: 2024:KHC-D:6735

4. The present petition is filed praying to order for

running of all sentences passed in all the three cases

concurrently.

5. Heard the learned counsel for petitioners and

learned High Court Government Pleader for respondent-State.

6. On perusal of facts in all the three cases, the charge

against the petitioners is theft during the year 2002 by

committing trespass.

7. Considering the arguments and facts, the point that

would arise for consideration is that:

"Whether the petitioners have made out a case for running of sentences passed in all the three cases concurrently?"

8. Section 427 of Cr.P.C reads as under:

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

NC: 2024:KHC-D:6735

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

9. A co-ordinate Bench of this Court in the case of

Ravi @ Ravikumar @ Janardhanachari @ Babu Vs. State

of Karnataka in Crl. A. No.1669/2022 and connected

matters decided on 04.10.2023 has observed thus:

"10. The general rule that there cannot be concurrency of sentence if conviction relates to two different transactions, can be changed by an order of the Court. There is no strait jacket formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1) Cr.P.C. Depending on the special and peculiar facts and

NC: 2024:KHC-D:6735

circumstances of the case, it is for the Court to make the sentence of imprisonment in the subsequent trial run concurrently with the sentence in the previous one.

11. The Hon'ble Apex Court in the case of Anil Kumar v. State of Punjab, reported in (2017) 1 S.C.R. 418 has held as under:

"7. After referring to V.K. Bansal's case, in Benson v. State of Kerala (2016) 10 SCC 307 :

2016 (9) SCALE 670, this Court directed the substantive sentences imposed on the appellant Benson to run concurrently. The appellant therein was convicted for the offences punishable under Section 379 and Section 414 read with Section 34 IPC in at least eleven cases. By a separate judgment, the appellant was convicted and sentenced in each of the aforesaid cases and total length of sentences in aggregate was around nineteen years.

8. In the present case, the appellant was earlier convicted under Section 22 NDPS Act and subsequently convicted under Section 27(b)(ii) and Section 28 of the Drugs and Cosmetics Act, 1940. Considering the nature of the offences for which the appellant was convicted and the facts and circumstances of the case, we deem it appropriate to direct that the sentences imposed on the appellant in FIR No.37 and complaint No.638 shall run concurrently. However, the fine

NC: 2024:KHC-D:6735

amount and the default sentence or sentences are maintained. If the fine amount is not paid, the default sentence will run consecutively and not concurrently."

13. In the said decision the Hon'ble Apex Court has observed that "High Court ought to have intervened in the exercise of its jurisdiction by setting right the miscarriage of justice which would occur in the above manner, leaving the appellant to remain incarcerated for a period of 18 years in respect of his conviction and sentence in the nine Sessions trials for offences essentially under the Electricity Act."

10. Considering the above, if offences committed are

similar, the Court can exercise its discretion and order to run

the sentences concurrently. As the petitioners are alleged to

have committed offences of house trespass and theft in all the

three cases, they are entitled for an order of running of the

sentences concurrently in the said three cases. The above Point

is answered accordingly. In the result, the following:

ORDER

i) The petition is allowed.

ii) The sentences against the petitioners

passed in CC Nos.627/2002, 628/2002 and

NC: 2024:KHC-D:6735

629/2002 dated 07.10.2008 by the Civil

Judge (Junior Division) and JMFC, Byadagi

and modified by Judgments passed in Crl.A

Nos.69/2008, 70/2008 and 71/2008 dated

15.07.2013 by the II Additional District and

Sessions Judge, Haveri (sitting at

Ranebennur) are ordered to run

concurrently.

iii) The Jail authorities are directed to release the

petitioners, if they have completed the sentences

and if they are not required in any other case.

Sd/-

JUDGE

PJ CT:BCK