Sunil Kumar and Others vs State of Karnataka and Others

Rathnakala, J.—Sri. B. Visweswaraiah, HCGP takes notice for the respondents.

Petitioners are convicted in eight cases and ordered to under go imprisonment.

Sri. Harish Kumar, H.C., learned counsel appearing for the petitioner Nos. 1 to 3 and Sri. M. Sharass Chandra, learned counsel appearing for petitioner Nos. 4 and 5 submitted that the grievance of the petitioners is that though set off is contemplated under Section 428 of Cr.P.C., it is not ordered. Since no specific order is passed by the Fast Track (Sessions) Judge, Bangalore City (F.T.C No. VII) which conducted five cases i.e. S.C. Nos. 145/2009, 146/2009, 147/2009, 148/2009 and 149/2009. In the subsequent judgment passed by the Fast Track Court No. X, Bangalore City in S.C. No. 119/2009 and Fast Track (Sessions) Judge-V in S.C. No. 68/2009 and Addl. District and Sessions Judge, Fast Tract Court-V, Bangalore in S.C. No. 205/2010 also no specific order is passed by the concerned Courts for all the sentences to run concurrently. If the petitioners are to serve the sentences one after another, totally he has to undergo imprisonment for 39 years. It is against the spirit of the fundamental Rights guaranteed under Article 21 of the Constitution of India. This court''s indulgence is sought for to exercise its jurisdiction under Section 482 of Cr.P.C. for an order that all sentences to run concurrently.

The petitioner is said to be in custody from 18.09.2008, (In S.C. Nos. 119/2009 and 205/2010) and produced under Body Warrant in remaining five cases. He is tried simultaneously in all the seven cases. He is given benefit of set off under Section 428 of Cr.P.C. in all the cases. With the benefit of set off, he has served substantive sentence in S.C. No. 205/2010 i.e., seven years of imprisonment. He is shown to be of twenty eight years when he was first arrested. If the sentences are to run consecutively, he may have to spend another twenty eight years of his life in custody as if he is destined to serve a major punishment for life. In the light of judgment of Apex Court in State of Maharashtra and Another Vs. Najakat Alia Mubarak Ali, followed in Atul Manubhai Parekh Vs. Central Bureau of Investigation, and Maliyakkal Abdul Azeez Vs. Assistant Collector, Kerala and Another, . This is a fit case to exercise the inherent jurisdiction of this Court to order concurrent flow of all the seven sentences of imprisonment, he is ordered to serve.

Accordingly, petition is allowed. The sentence of imprisonment for 4 1/2 years passed by the city Fast Track (Session) Judge, Bangalore City, vide order dated 29.09.2012 in S.C. Nos. 145/2009, 146/2009, 147/2009, 148/2009 and 149/2009 and also the sentence of imprisonment of 7 years ordered by the Fast Track Court No. X, Bangalore City dated 29.1.2013 in S.C. No. 119/2009, the sentence of simple imprisonment of 3 years ordered by the Fast Track (Sessions) Judge-V, Bangalore City dated 4.2.2011 in S.C. No. 68/2009 and the sentence of imprisonment of seven years ordered by the Additional District (Session) Judge, Fast Track-V, Bangalore City dated 18.10.2011 in S.C. No. 205/2010 shall run concurrently after calculation of the period of sentence undergone by him.