Can the state seek enhancement of the accused's sentence if it is granting remission to the accused?

  Learned counsel for respondent/accused has

vehemently contended that the State has compelled the

accused to withdraw the appeal in order to get remission

under the provisions of the Karnataka Prisons Rules, 1974.

But in these Rules, there is no provision to show that

remission cannot be granted in case of any pendency of the

appeal. It is argued by the learned counsel for

respondent/accused that there is a practice for refusing the

remission in case of pendency of the appeal but no evidence

is placed to show that any such practice is being followed.

Further, the remission is under statute and pendency of

appeal has no relevancy and in any event accused is going to

get the benefit of remission if he is entitled under law. Under

such circumstances, the said arguments do not have any

relevancy and cannot be accepted. When the remission is

granted under the statute, it cannot lie in the mouth of the

accused that the State is taking dual stand regarding granting

remission and also seeking enhancement of the sentence. It

is to be noted here that remission is granted under the

statute. The enhancement of sentence is also sought only

under the statute wherein minimum sentence is prescribed.

Hence, there is no inconsistency with each other. The

arguments advanced by the learned counsel regarding

doctrine of legitimate expectation cannot be made applicable

to the facts and circumstances of the case in hand. In this

context, learned counsel for respondent has placed reliance

on a decision of the Delhi High Court in W.P.(C)

No.4760/2010 dated 12.11.2010 but the facts and

circumstances of the said case are entirely different and it was

pertaining to educational qualification and seat matrix. It has

nothing to do with the present case and as such, the doctrine

of legitimate expectation cannot be applied in the instant case

as the remission was granted under the statute and

enhancement of sentence is also being sought only under the

statute. Even if the sentence is enhanced, the remission will

not be taken away and the accused will get the remission and

Rule 36(8) of Karnataka Prisons Rules 1974 which deals with

re-admission and earning remission thereunder. Under such

circumstances, these rules are not contradictory to each

other.{Para 23}

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

CRL.A. NO.100242/2018

THE STATE OF KARNATAKA Vs SHANKAR URF SHANKRAPPA S/O RAMPPA HUBBALLI,

PRESENT

 MR. JUSTICE H.T.NARENDRA PRASAD

AND

 MR. JUSTICE RAJENDRA BADAMIKAR

Author: RAJENDRA BADAMIKAR, J. 

DATED:  22ND DAY OF APRIL 2022.

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