RAMESH Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER was accused in C.C.No.733 of 1997 of the Court of learned Judicial First Class Magistrate-II, Cherthala and was convicted for offences punishable under Sec.279, 337, 338 and 304A of the Penal Code. He was sentenced to undergo imprisonment for various periods. He prepared Crl.Appeal.No.90 of 2001 and the learned Additional Sessions Judge, Alappuzha allowed the appeal in part modifying the sentence of imprisonment. Crl.R.P.No.24 of 2003 filed in this Court and S.L.P (Crl).No.34730 of 2010 filed in the Supreme Court failed. PETITIONER surrendered on 11.11.2010 and since then is undergoing imprisonment. While so, petitioner filed C.M.P.No.4 of 2011 before learned Magistrate requesting to set off the period of detention (allegedly) undergone by him in the course of investigation. That application was dismissed by the learned Magistrate vide Annexure-1, order dated January 7, 2011 for the reason that order of this Court does not mention anything about set off.

(2.) LEARNED counsel for petitioner contends that in the light of the observation made by the Division Bench of this court in Abubacker Vs. State of Kerala (1994(2) KLT 1012) (paragraph 2), even if the judgment or order did not state that the accused is entitled to the benefit of set off under Sec.428 of the Code of Criminal Procedure (for short, "the Code") he is entitled to avail that benefit. I have heard learned Public Prosecutor also.

(3.) IN the light of the above decisions that the judgment/order of the trial court, this court or the Supreme Court did not provide for set off does not stand in the way of petitioner claiming set off if he is otherwise entitled to that and the learned Magistrate allowing set off on the application preferred by him. IN that view of the matter order passed by the learned Magistrate cannot be sustained and is liable to be set aside. Resultantly this petition is allowed. Annexure-1, order dated 07.01.2011 is set aside. C.M.P.No.4 of 2011 is remitted to the Court of learned Judicial First Class Magistrate-II, Cherthala. Learned Magistrate is directed to ascertain whether petitioner has undergone detention during the period of investigation/trial as the case may be and if so, petitioner shall be given benefit under Sec.428 of the Code as provided under law.