Bangalore District Court
3 Spl.Cc No.886/2018 vs His Staff Gave Reports Stating That on 21 November, 2019
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH82)
:Present :
Sri RAMACHANDRA D. HUDDAR, B.Com., LLM.,
LXXXI ACC & SJ, Bengaluru City (CCH-82)
(Special Court exclusively to deal with
criminal cases related to elected MPs/MLAs
in the State of Karnataka)
Dated: This the 21st day of November, 2019
Spl. CC No. 886 / 2018
Accused No. 1. Syed Fairoz
S/o. Syed Allauddhin Fruitwale
Age 30 years,
R/a.Noorkhan Akhada Humnabad,
BIDAR.
2. Syed Yaseen
S/o. Syed Himayathali
Age about 30 years
R/a. Syed galli, Humnabad
BIDAR.
3. Sheik Mohammed
S/o. Hussain Sab Meeran
Aged about 22 years,
R/a. Zerapeta, Humnabad
BIDAR District.
4. Muddassir S/o Mehaboob Ali
Age about 25 years,
R/a. Zerapet, Humnabad
BIDAR DISRICT.
2 Spl.CC No.886/2018
5. Mannan Sab @ Ejaaj
S/o. Hanif Saab @ Basheer Paket
Aged about 19 years,
R/a. Zerapeta, Humnabad
6. Syed Mubeena
S/o. Syed Sallauddin @ Sohhail
Gorebai, Aged about 22 years
R/a.Beebigalli, Humnabad
7. Mohammed Muneer Hassan
S/o. Mohammed Khaza Hassan
Aged about 19 years,
R/at. Syed Galli, Humnabad.
8. Tahir Khan @ Tabrez Khan
S/o. Firoz Khan Lakdi Addewale
Aged about 35 years,
R/at. Noor Khan Akhada
Humnabad.
9. Mohammed Immaam
S/o. Mohammed Mujibuddin Delux
Dhaba, Aged about 19 years
R/at Noor Khan Akhada
Humnabad.
10. Javeed S/o. Abdhul Wahid Kubade
Aged about 21 years,
R/at Zerapet,
Humnabad.
11. Nasir S/o. Nafi Meeran
Aged about 22 years,
R/a.Noorkhan Akhada
Humnabad
3 Spl.CC No.886/2018
12. Mohammed Allu
S/o. Mohd. Moyinuddin
Aged about 26 years
R/a. Noorkhan Akhada
Humnabad
13. Mohammed Akram
S/o. Mohammed Saravar
Aged about 22 years,
R/a. Noorkhan Akhada
Humnabad
14. Mohammed Ikram
S/o. Mohammed Mujibuddin Delux
Dhabawale
Aged about 19 years
R/at. Noorkhan Akhada
Humnabad
15. Isa S/o Baseer Kanakatta
Aged about 24 years
R/at. Noorkhan Akhada
Humnabad
16. Ajju @ Azar
S/o. Nayyum Bhagwan
Aged about 18 years
R/at. Bhagavan Galli,
Humnabad
17. Sheik Wajid
S/o. Sheik Pasha Momin (Pasha
Hotel)
Aged about 20 years
R/at Gandhinagar,
Humnabad
4 Spl.CC No.886/2018
18. M.D.Munnan khan
S/O. M.D.Moin Khan
Aged about 20 years
R/at. Noorkhan Akhada,
Humnabad
19. Syed Masiyuddin
S/o. Syed Alla-uddin Nasawale
Aged about 25 years
r/o Wanjri Humnabad
20 Mujeeb S/o. Sallauddin Chowdhri
(Kirani shop)
R/a Nar TMC Garden,
near Kallur Road,
Humnabad
21 M.D.Ashfaque S/o M.D.Maqbul
Aged about 24 years,
R/a Zerapet
Humnabad
22. Mohammed Arshad
S/o. Mohammed Khaleed Ahmmed
Shaman,
Aged about 24 years,
R/at.No.18-123, Noorakhan Akhada,
Humnabad
23. Mohammed Mansoor Hassan
S/o. Mohd. Khaja Hassan
Aged about 25 years,
R/at. No.5-90, Syedgalli,
Humnabad
24. Mohammed Taqiuddin
5 Spl.CC No.886/2018
S/o. Mohd. Masluddin
Aged about 25 years,
R/at. No.15-74, Bagawanagalli,
Humnabad
25. Mohammed Miraj
S/o. Mohd. Sallauddin
Aged about 24 years
R/a. No.14-62,
Jain galli, Humnabad
26. Ghazi Khadir Khan
S/o. Mohd. Yunuskhan
Aged about 32 years,
R/at.No.21-311,
Shivanagara Colony
Humnabad
27. Syed Sharief
S/o. Syed Ismail
R/at No.9-78, Shivapura,
Indiranagar, Humnabad
28. Khazi Mohammed Mujibuddin
S/o. Mohiuddin Khaji Mohammed
Mehaboob, Aged about 28 years
R/a. No.13-113,
Beebigalli, Humnabad
29. Fairoz Khan
S/o. Majid Khan, Aged about 24
years, R/at Beebigalli,
Humnabad
30. Salman s/o Mastan Mitaivale
Aged about 26 years
r/o Zerapet, Humanabad.
(split up in Spl.CC.No.1012/2019)
6 Spl.CC No.886/2018
31. Mathin S/o Mohiyuddin
Aged about 25 years,
R/a Zerapet, Humnabad
BIDAR.
32. Sharfuddin
S/o. Rafeeq, Aged about 25 years
R/at Zerapet, Humanabad
33. Nakeer S/o. Nabisab Kankattewale,
Aged about 25 years
R/at Noorkhan Akhada,
Humnabad
34. Akbaruddin
S/o. Sultana Sallauddin
Aged about 44 years
R/a Banjara Hills, Hyderabad.
Date of offence 23-09-2013
Date of report of offence 23-09-2013
Name of the complainant Umesh Basavaraj Jambagi
Date of commencement of 17-09-2019
recording of evidence
Date of closing of evidence 20-11-2019
Offences complained of Sec. 143, 147, 148, 295A, 298,
505(2), 506, 124(A) r/w section
149 of IPC.
Opinion of the Judge Accused is found not guilty
State represented by Learned Public Prosecutor
Accused defended by For A1-A29, A31-34
(R.Kothwal, Advcoate)
Advocate for A-34
Mohammed Jafar Shah.
7 Spl.CC No.886/2018
JUDGMENT
Accused Nos.1 to 34 have been charge sheeted by the Sub- Inspector of police, Humnabad Police Station for the offences punishable u/s 143, 147, 148, 195A, 298, 505(2), 506, 124(A) r/w section 149 of IPC.
2. The brief and relevant facts leading to the case of the prosecution are as under:-
That complainant Umesh S/o. Basavaraj Jambagi lodged a complaint before Humnabad Police Station on 23-09-2013 at 11.45 p.m, before the Sub-Inspector of Police, Humnabad Police Station alleging that, on 23-09-2013 at 9.50 p.m, he went to Noor Dhaba situated at Humnabad to take the dinner. At that time, he noticed the following persons being the Mohammadans of Humnabad. There were about 38 persons namely Abdul Raheman, Firoz, Afsar, Syed Yasin, Shekh, Sattar, Alluddin, Ansaar, Muddasir, Ajam, Ahamed Yasin, Mahamed Asif, Mannansab, Syed Mobil, Ajam Mohiuddin, Tahe Khan, Imam, 8 Spl.CC No.886/2018 Harun Ganjavale, Jahur, Javid Jerpet, Babbalu Machanic, Shuban Lakkapati, Khaza, Ajama Matin, Najju, Mukram, Kusro, Naseer, Abdul Vahab, Abdul Akbar,, Abdul Miraj, Allu, Akram, Naser Khan, M.AD. Muzib, M.D. Saleem, Fazil Khan, Bilal.
3. It is further stated that, in addition to the aforesaid persons there were groups of some persons. The said persons by removing their shirts were moving on the Motor Cycles, they were shouting stating that that one Sri. Akbaruddhin Y.O.C is coming towards Gulbarga and was making communal disturbance and were also shouting slogans. It is further stated that, all these persons by forming themselves into an unlawfull assembly by doing criminal conspiracy, they were moving on their motor cycles and the pillion riders of the motorcycle were found removed their shirts and by holding the respective shirts, they were also holding lathies in their hands and were creating communal disharmony. They were shouting slogans against the Hindus and found committing the communal disharmony. At that time the complainant was following them. Thus, all the 9 Spl.CC No.886/2018 aforesaid persons moved from Noor Dhaba towards the Humnabad City and they stopped at I.B.Cross near bus stand for 5 minutes and also shouted the following slogans:
"ಅಕಕರರರದದನ ಒ.ವ.ಸ. ಜಜದಬದ, ಹಜದದ ಮದದರಬದ ಹಮ ಕಸರಸ ಕಮ ನಹ ಅಕಕರರರದದನ ಹಮರ ಸರರ ಹಹ, ಹಮರ ಸರರ ಹಮರ ಪಛರ ಹಹ, ಅಬಕ ಹಮ ಕಸರಕರರ ಡರತನಹ, ಅಕಕರರರದದನ ಜಹಸ ತಖರರರ ಕರತ ಹಹ ಉಸ ತರಹ ಹಮಮ ಹಜದದವಜವಕರ ಕಟಕ ಫರಕತ, ಅಬಕ ಹಜದದವಜವಕರ ಕಟನಕ ವಕತ ಆಯ ಹಹ."
"ಜಗರರರ ಮದಸಲಮನ ಹದಮನಬದಕರರ ಹಮರ ಸರರ ಆಯರ, ಅಬ ಹಜದದವಜವಕರ ಕಟನಕ ವಖತ ಆಯ ಹಹ ಎಕ ಮದಸಲಮನಕ ಪಸ ಸವ ಹಜದದಕರರ ಕಟನಕ ದಮ ಹಹ"
"ಅಕಕರರರದದನ ಒ.ವ.ಸ. ಜಜದಬದ, ಹಜದದ ಮದದರಬದ ಹಮ ಕಸರಸ ಕಮ ನಹ ಅಕಕರರರದದನ ಹಮರ ಸರರ ಹಹ, ಹಮರ ಸರರ ಹಮರ ಪಛರ ಹಹ, ಅಬಕ ಹಮ ಕಸರಕರರ ಡರತನಹ, ಅಕಕರರರದದನ ಜಹಸ ತಖರರರ ಕರತ ಹಹ ಉಸ ತರಹ ಹಮಮ 10 Spl.CC No.886/2018 ಹಜದದವಜವಕರ ಕಟಕ ಫರಕತ, ಅಬಕ ಹಜದದವಜವಕರ ಕಟನಕ ವಕತ ಆಯ ಹಹ."
"ಅಕಕರರರದದನ ಒ.ವ.ಸ. ಜಜದಬದ, ಹಜದದ ಮದದರಬದ ಹಮ ಕಸರಸ ಕಮ ನಹ ಅಕಕರರರದದನ ಹಮರ ಸರರ ಹಹ, ಹಮರ ಸರರ ಹಮರ ಪಛರ ಹಹ, ಅಬಕ ಹಮ ಕಸರಕರರ ಡರತನಹ, ಅಕಕರರರದದನ ಜಹಸ ತಖರರರ ಕರತ ಹಹ ಉಸ ತರಹ ಹಮಮ ಹಜದದವಜವಕರ ಕಟಕ ಫರಕತ, ಅಬಕ ಹಜದದವಜವಕರ ಕಟನಕ ವಕತ ಆಯ ಹಹ."
and went towards Ambedkar circle, KEB, By-pass and turned towards Ambedkar circle and went near the I.B cross and thereafter went away towards Bidar. The said incident took place at about 10-30 p.m, on that day. This incident being committed by the said persons have been witnessed by one Syed Kaleem Ulla S/o. Syed Abdhulla Hakka, Nayumodhein S/o. Mohiyodhein Bhagawan, Khursid Khan S/o. Ismail Khan, Ramesh S/o. Gurareddy, Afsarmiyya S/o. Abdhul Khudoos , M.A.Samada S/o. M.A.Baseed, Siddu Pateel S/o. Nagabhushan Pateel and others.
11 Spl.CC No.886/2018
4. With these allegations, he filed a computerised complaint as per Ex.P6 before PW-16, the then PSI of Humnabad Police Station by name Lakkappa Agni and set the criminal law in motion.
5. This, PW-16 on receipt of the complaint on 23-09-2013 at 11.45 p.m, registered the said Ex.P-6 in crime No.201/2013, prepared the FIR as per Ex.P-19 and sent to the Jurisdictional Magistrate.
6. On 24-09-2013, in between 7 a.m, and 8 a.m, he visited the scene of occurrence, conducted spot panchanama as per Ex.P-19 in the presence of panchas. On the same day itself in between 10.30 and 11.30 a.m. he seized the Motor cycles being used by the accused persons while committing the offence under panchanama as per Ex.P-10. He identified the said motorcycles marked as Mos.1 - 10. On the same day itself, he arrested the accused by name Firoz, Afsar, Syed Yasin, Azmudhein, Mohd Asif, Munnan Sab, Bilal, Syed Mobbhein, Abdhul Wahab, Abdhul Mirz, Syed Harun, Syed Masiyodhein, 12 Spl.CC No.886/2018 Mannan Khan Nasir, M.D.Habeeb and he produced the said accused persons before the Court.
7. On the same day itself, in between 12-30 and 1-30 p.m, in the presence of panchas, he seized the camera and memory card from M.D.Munnan Khan, being the accused. The said camera is marked as MO-11. By using the said memory card, he took out the photographs. The said photographs are marked as per Ex.P20-29. On the same day itself, he recorded the statements of witnesses by name Syed Khaleemulla, Kurshid Khan, Ramesh, Bheema Rao Pateel, Manik Reddy, Afsar Miya, M.A.Samath, Siddhu Patil. The accused so arrested by him on 24-09-2013 have given their voluntary statements.
8. On 25-09-2013, he arrested the absconding accused by name Mohd. Akram and has produced him before the court. On 26-09-2013, he recorded the further statement of the complainant.
13 Spl.CC No.886/2018
9. As per the further statement of the complainant, he gave a requisition to the court to insert section 124(a) of IPC. On 27-09-2013, he arrested the absconding accused by name Issa, Irfan, Ajju and Sheik Wazid and produced them before the court. He recorded their voluntary statement.
10. On 6-10-2013, 20 accused persons by obtaining the anticipatory bail from the District and Sessions Court, Bidar appeared before him. They were enlarged on bail. He deputed his staff for the purpose of securing the presence of absconding accused. His staff gave reports stating that, said accused are not at all available. As he was transferred, he handed over investigation to the then PSI G.M.Patil.
11. PW-17 Santosh Thattepalli, the then PSI of Humnabad Police Station, after taking up the investigation from G.M.Patil, inspected the records of this case and as the previous investigating officer did requisition to insert section 295A of IPC and sought sanction from the Government. He obtained the 14 Spl.CC No.886/2018 sanction order as per Ex.P-28. As the investigation was completed, he filed charge sheet against the accused persons.
12. The said charge sheet was filed before Civil Judge and JMFC, Humnabad. After filing the charge sheet, cognizance of the offence was taken by the Civil Judge, JMFC, Humnabad. Copies of police papers were furnished to the accused persons as contemplated u/s 207 of Cr.P.C.
13. The case was posted for hearing before charge. In the mean time, in view of the establishment of this special court to try the criminal cases relating to MP's and MLA's, the entire records of this case are transmitted to this court by Civil Judge and JMFC, Humnabad. Initially, this case was registered on the file of Civil Judge and JMFC in CC.No.219/2017. After transmission of the records to this court, this case is registered in the aforesaid Spl.CC.No.886/2018.
14. Before this court also, the presence of the accused Nos.1 to 29 and 31 to 34 is secured. NBW came to be issued 15 Spl.CC No.886/2018 against accused No.30. Despite issuance of summons and warrants against accused No.30, his presence could not be secured. The police have reported that, the whereabouts of accused No.30 is not known. Therefore, a detailed order came to be passed by this court splitting up of the case against accused No.30 and the same is registered in C.C.No.1012/2019. NBW came to be issued against accused No.30.
15. Before this court, accused Nos.1 to 29 and 31 to 34 filed application u/s 239 of Cr.P.C seeking their discharge. After hearing on both sides, a detailed order came to be passed by this court on 30-07-2019 rejecting the said application. Thereafter, the case is posted for framing charge against the accused persons.
16. After hearing on both sides, charge against accused Nos.1 to 29 and 31 to 34 was framed u/s 143, 147, 148, 295(A), 298, 505(2), 506, 124A r/w section 149 of IPC, read over & explained to the accused in the language known to them. They pleaded not guilty and claimed to be tried. 16 Spl.CC No.886/2018
17. To prove the case made out against the accused persons, prosecution in all have examined 16 witnesses from Pws-1 to 16 and got marked Exs.P1 to P28 with respective signatures there on. MO's 1 to 11 are also marked on behalf of the prosecution.
18. After completion of the evidence of the prosecution, accused Nos.1 to 29 and accused Nos.31 to 34 are questioned u/s 313 of Cr.P.C so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution. They denied their complicity in the crime and did not chose to lead any defence evidence on their behalf.
19. Thereafter, heard the arguments of learned Public Prosecutor and learned counsel for accused Nos.1 to 29, 31 to 33 and senior counsel for accused No.34 at length. Meticulously, perused the records.
20.The points that would arise for my consideration are:- 17 Spl.CC No.886/2018
1) Whether the prosecution, beyond all reasonable doubt proves that accused Nos.1 to 29 and 31 to 34 along with accused No.30 on 23.09.2013 at 9.50 p.m. at Noor Dhaba situated by the side of National High Way No.9 in Humanabad town, were members of unlawful assembly with the common object of doing communal violence formed themselves into an unlawful assembly and thereby committed an offence punishable under Sec. 143 r/w 149 of IPC ?
2) Whether the prosecution, beyond all reasonable doubt proves that accused stated supra, on the above said, date, time and place, in furtherance of their common object, by forming an unlawful assembly in order to do communal violence and in prosecution of the said object of the said assembly shouted slogans as "ಅಕಕರರರದದನ ಒ.ವ.ಸ. ಜಜದಬದ, ಹಜದದ ಮದದರಬದ ಹಮ ಕಸರಸ ಕಮ ನಹ ಅಕಕರರರದದನ ಹಮರ ಸರರ ಹಹ, ಹಮರ ಸರರ ಹಮರ ಪಛರ ಹಹ, ಅಬಕ ಹಮ ಕಸರಕರರ ಡರತನಹ, ಅಕಕರರರದದನ ಜಹಸ ತಖರರರ ಕರತ ಹಹ ಉಸ ತರಹ ಹಮಮ ಹಜದದವಜವಕರ ಕಟಕ ಫರಕತ, ಅಬಕ ಹಜದದವಜವಕರ ಕಟನಕ ವಕತ ಆಯ ಹಹ."
committed an offence of rioting punishable under Sec. 147 r/w 149 of IPC?
18 Spl.CC No.886/2018
3) Whether the prosecution beyond all reasonable doubt proves that accused stated supra, on the above said, date, time and place, in furtherance of their common object, by forming an unlawful assembly, by removing their respective shirts some of them were armed with deadly weapons like lathis, which being a deadly weapon if used was likely to cause death and thereby committed an offence punishable u/s.148 r/w 149 of IPC?
4) Whether the prosecution beyond all reasonable doubt proves that accused stated supra, on the above said, date, time and place, in furtherance of their common object, insulted the other religion by uttering the words like ""ಜಗರರರ ಮದಸಲಮನ ಹದಮನಬದಕರರ ಹಮರ ಸರರ ಆಯರ, ಅಬ ಹಜದದವಜವಕರ ಕಟನಕ ವಖತ ಆಯ ಹಹ ಎಕ ಮದಸಲಮನಕ ಪಸ ಸವ ಹಜದದಕರರ ಕಟನಕ ದಮ ಹಹ" with deliberate and malicious intention of outraging the religious feelings of Hindu religion and thereby committed an offence punishable under Sec. 295A r/w Sec.149 of IPC?
5) Whether the prosecution beyond all reasonable doubt proves that accused stated supra, on the above said, date, time and place, in furtherance of their common object by forming an unlawful assembly 19 Spl.CC No.886/2018 with the common object uttered the words "ಅಕಕರರರದದನ ಒ.ವ.ಸ. ಜಜದಬದ, ಹಜದದ ಮದದರಬದ ಹಮ ಕಸರಸ ಕಮ ನಹ ಅಕಕರರರದದನ ಹಮರ ಸರರ ಹಹ, ಹಮರ ಸರರ ಹಮರ ಪಛರ ಹಹ, ಅಬಕ ಹಮ ಕಸರಕರರ ಡರತನಹ, ಅಕಕರರರದದನ ಜಹಸ ತಖರರರ ಕರತ ಹಹ ಉಸ ತರಹ ಹಮಮ ಹಜದದವಜವಕರ ಕಟಕ ಫರಕತ, ಅಬಕ ಹಜದದವಜವಕರ ಕಟನಕ ವಕತ ಆಯ ಹಹ." to the hearing of the complainant and other Hindus gathered there with the deliberate object of intending to wound the religious feelings of the person and thereby committed an offence punishable under Sec.298 r/w 149 of IPC?
6) Whether the the prosecution beyond all reasonable doubt proves that accused stated supra, on the above said, date, time and place, in furtherance of their common object, by forming an unlawul assembly by uttering the aforesaid words with intent to cause fear to the public came upto I.B. Cross at 10.30 p.m. and created hatred feelings between Hindus and Musalmans and thereby committed an offence punishable under Sec.505(2) r/w 149 of IPC?
20 Spl.CC No.886/2018
7) Whether the prosecution beyond all reasonable doubt proves that the accused stated supra, on the above said, date, time and place, in furtherance of their common object by forming an unlawful assembly by uttering the words in Urdu language such as "ಅಕಕರರರದದನ ಒ.ವ.ಸ. ಜಜದಬದ, ಹಜದದ ಮದದರಬದ ಹಮ ಕಸರಸ ಕಮ ನಹ ಅಕಕರರರದದನ ಹಮರ ಸರರ ಹಹ, ಹಮರ ಸರರ ಹಮರ ಪಛರ ಹಹ, ಅಬಕ ಹಮ ಕಸರಕರರ ಡರತನಹ, ಅಕಕರರರದದನ ಜಹಸ ತಖರರರ ಕರತ ಹಹ ಉಸ ತರಹ ಹಮಮ ಹಜದದವಜವಕರ ಕಟಕ ಫರಕತ, ಅಬಕ ಹಜದದವಜವಕರ ಕಟನಕ ವಕತ ಆಯ ಹಹ." attempted to excite dissatisfaction towards the Government and thereby committed an offence punishable under Sec.124A R/W 149 of IPC?
8) What order or sentence?
21. My answer to the above points is as under:-
Point No.1:- In the Negative Point No.2:- In the negative Point No.3:- In the negative Point No.4:- In the negative Point No.5:- In the negative 21 Spl.CC No.886/2018 Point No.6:- In the negative Point No.7:- In the negative POINT No.8:- As per final order for the following.
REASONS
22. Point Nos.1 to 8:- These points so raised supra are interlinked with each other. The finding to be given on one point have got direct link on the other point. Therefore, I would to discuss the said points together, so as to avoid repetition of discussion and conclusion. As could be seen from the allegations made in the complaint as well as other investigation papers, specific allegations have been made by the prosecution against the accused that, on 23- 09-2013 at 9-50 p.m, at Noor Dhaba situated by the side of National High Way in Humnabad Town these accused stated above formed an unlawful assembly with a common object of doing communal violence and in furtherance of the common object by forming unlawful assembly in order to do the 22 Spl.CC No.886/2018 communal violence and in prosecution of the said object shouted slogans and they were found, removed their shirts and were holding deadly weapons like lathis in their hands and in furtherance with a common object insulted Hindu religion by uttering words like ""ಜಗರರರ ಮದಸಲಮನ ಹದಮನಬದಕರರ ಹಮರ ಸರರ ಆಯರ, ಅಬ ಹಜದದವಜವಕರ ಕಟನಕ ವಖತ ಆಯ ಹಹ ಎಕ ಮದಸಲಮನಕ ಪಸ ಸವ ಹಜದದಕರರ ಕಟನಕ ದಮ ಹಹ" with a deliberate object of intending to wound the religious feelings of the Hindu religion. So also shouted slogans "ಅಕಕರರರದದನ ಒ.ವ.ಸ. ಜಜದಬದ, ಹಜದದ ಮದದರಬದ ಹಮ ಕಸರಸ ಕಮ ನಹ ಅಕಕರರರದದನ ಹಮರ ಸರರ ಹಹ, ಹಮರ ಸರರ ಹಮರ ಪಛರ ಹಹ, ಅಬಕ ಹಮ ಕಸರಕರರ ಡರತನಹ, ಅಕಕರರರದದನ ಜಹಸ ತಖರರರ ಕರತ ಹಹ ಉಸ ತರಹ ಹಮಮ ಹಜದದವಜವಕರ ಕಟಕ ಫರಕತ, ಅಬಕ ಹಜದದವಜವಕರ ಕಟನಕ ವಕತ ಆಯ ಹಹ." With the deliberate object of intending to wound the religious feelings of the persons, so also by shouting such slogans came to I.B.Cross and created hatred feelings between Hindus and Musalmans, so also committed criminal intimidation by 23 Spl.CC No.886/2018 threatening the Hindus gathered there and also shouted in Urdu language "ಅಕಕರರರದದನ ಒ.ವ.ಸ. ಜಜದಬದ, ಹಜದದ ಮದದರಬದ ಹಮ ಕಸರಸ ಕಮ ನಹ ಅಕಕರರರದದನ ಹಮರ ಸರರ ಹಹ, ಹಮರ ಸರರ ಹಮರ ಪಛರ ಹಹ, ಅಬಕ ಹಮ ಕಸರಕರರ ಡರತನಹ, ಅಕಕರರರದದನ ಜಹಸ ತಖರರರ ಕರತ ಹಹ ಉಸ ತರಹ ಹಮಮ ಹಜದದವಜವಕರ ಕಟಕ ಫರಕತ, ಅಬಕ ಹಜದದವಜವಕರ ಕಟನಕ ವಕತ ಆಯ ಹಹ." and thus attempted to excite dissatisfaction towards the Government.
23. In a case of present nature, it is the duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt. In all criminal cases, even if a slightest doubt arises in the case of the prosecution, that benefit has to be extended to the accused persons. Now, let me analyse the evidence being adduced by the prosecution to know that whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubt.
24 Spl.CC No.886/2018
24. The learned Public prosecutor submits before the court that inview of the evidence of Investigating Officer, so recorded in this case, they have spoken about the incident, registered the crime conducted investigation and filed charge sheet. According to her, this evidence is sufficient to prove the guilt of the accused.
25. As against this submission the counsel for accused Nos.1 to 29 and 31 to 33, submits that, in this case all the witnesses so examined, except the Investigating Officers have turned hostile. None of the ingredients of the offences so made out by prosecution have been proved. Further, it is submitted that the ingredients of the offences against the have not been properly proved by prosecution. Therefore, he prayed to acquit the accused.
26. Learned counsel for accused No.34 submit before the court that, under section 196 of Cr.P.C require that, to initiate proceedings against the accused persons, prior sanction of the Government is necessary. Section 295A of IPC is invoked 25 Spl.CC No.886/2018 against the accused persons. According to his submission Ex.P- 28 so marked in this case being the sanction order is silent about according sanction to prosecute accused persons u/s 295A of IPC. This Ex.P-28 does not disclose the commission of the offence. He further submits that, there is no application of mind by sanctioning authority. Prima-facie materials have not been placed on record by the prosecution. He submits that, though initially complaint was lodged, about 38 persons have been substituted based upon the further statement of the complainant. Therefore, it is submitted that none of the witnesses in this case, have supported the case of the prosecution. He further submits that, the accused persons who have obtained the anticipatory bail have been arrayed as accused persons in this case by the Investigating Officer. No evidence is placed on record to implicate accused No.34. Relying upon the evidence placed on record by the prosecution, it is prayed to acquit all the accused persons.
26 Spl.CC No.886/2018
27. Learned Counsel for accused Nos.1 to 29, 31 to 33 placed reliance on the following judgments:
a. (2007) 96 DRJ 693 b. 2009 SCC 3 RCR (Cri) 224 c. AIR 1962 SC 955.
28. I have applied my mind on the arguments of both sides.
29. In this case PW-5 by name Umesh Basavaraj Jambagi is the complainant. On reading of the evidence of PW-5, though he lodged a complaint, as per the Ex.P-6, he has been turned hostile. Nothing worthwhile materials is elicited from the mouth of this witnesses, so as to disbelieve his version. Therefore, as the complainant being eye witness, has been turned hostile, his evidence cannot be accepted at all.
30. PW-1 Ramesh Kallur, PW-6 Siddu Patil, PW-7 Santosh Kumar, PW-8 Chennayya Kanade, PW-10 Khurshid Khan, PW-11 27 Spl.CC No.886/2018 Suresh Reddy, PW-12 Manik Reddy, PW-13 Afsar Miya, PW- 14M.A.Samadh, PW-15 Bheemarao Patil are cited as eye witnesses in this case. But all these witnesses have been turned hostile. Though, they have been declared as hostile witnesses, and have been cross-examined by the prosecution, nothing worth is elicited from their mouth so as to disbelieve their version given in the examination-in-chief. Therefore, the evidence of the aforesaid witness become inconsequential to the case of the prosecution.
31. PW-2 Subash, PW-3 Jagannath Gumma, PW-4 Raju Patil are the police officials being examined by the prosecution show that, these police officials were entrusted to secure the presence of the absconding accused. Despite making of their best efforts they could not secure the presence of the absconding accused as per their respective reports so filed by them as per Ex.P-2, Ex.P-3, Ex.P4 and Ex.P-5. So their evidence has to be accepted to the extent of not securing the presence of the absconding accused. To that extent, I believe their evidence. 28 Spl.CC No.886/2018 These witnesses have also been cross-examined by the defence. They have stated that they have not recorded the statement of neighbouring owners, where these absconding accused were residing. So to the extent of that, these officials did efforts to secure the presence of absconding accused persons, their evidence is to be accepted. But the evidence of these witness will not prove that these accused persons have committed the offence in the manner alleged by the prosecution.
32. PW-7 Santosh Kumar, PW-8 Chennayya Kanade are the panch witnesses to Ex.P-9 and P-10. These two witnesses have also been turned hostile. Nothing worthwhile is elicited from the mouth of this witnesses, so as to disbelieve their evidence.
33. In all criminal cases, panchas are the authors of the panchanama. If they do not support the case of the prosecution, it can be stated that panchanama is not duly proved in accordance with law. Therefore, the evidence of this witness will not come to the rescue of the prosecution in any manner. 29 Spl.CC No.886/2018
34. Then remains the evidence of PW-15, 16 and 17 being the Investigating Officer, in this case.
PW-16 L.B.Agdhi speaks about the receipt of the complaint and setting the criminal law in motion, conducting panchanama, arrest of accused , recording the statement of witnesses, releasing the accused persons on bail as per the orders being passed by Sessions Court, granting anticipatory bail. It is stated by PW-16 in his examination-in-Chief that accused persons while giving their voluntary statement have stated that they have thrown the laaties being used at the time of commission of offence by the side of road. Even they have told that they cannot identify the places. But, in view of the said voluntary statement, no attempts have been made by the Investigating Office to collect or seize the said laaties during the course of investigation. This is a serious lacuna to the case of the prosecution.
35. It is elicited in the cross-examination of PW-16 that, prior to 11-45 p.m, on 23-09-2013 that there was no information 30 Spl.CC No.886/2018 being received in the police station about arrival of accused NO.34 in Humnabad. This suggestion of PW-16 is admitted. Even, it is elicited that accused No.34 is the sitting MLA of Andhra Pradesh Vidhana Sabha Constituency and there was no information of his visit to Humnabad on that day. No such information was received.
36. Ex.D-2 is got marked in this case through this witness. This Ex.D-2 reads as under:
ಇನದ ನ ಅನರಕ ಜನರದ ಗದಜಪ ಕಟಟಕರಜಡದ ತಮಮ ಮಮಯಮರಲನ ಶಟರ ಬಚಚ ಸಸಕಲ ಮರಟರ ಹಗರ ಇನನತರ ವಹನಗಳ ಮರಲ ಹಹದದಬದನ ಅಕಕರರರದದನ ಸ ವಯ.ಒ. ಈತನದ ಗದಲಬರರ ಕಡಯಜದ ಬರದತತದರ ಎಜದದ ಕದದ ನರರಡದತತ ಜರರರಗ ಚರರಡದತತ ಕರರಮದ ಗಲಭ, ಉಜಟದ ಮಡದವ ರರತಯ ಫಫರರಷಣ ಕರಗದತತದದರದ.
37. Basing reliance upon the evidence of this PW-16, it is submitted by the counsel for accused No-34 that, based upon 31 Spl.CC No.886/2018 Ex.D-2 that when the complaint was lodged by the complainant, Accused No-34 was not at all present at Humnabad and so also he submits that name of accused No-34 is not appearing in complaint Ex.P-6. Thus, submits that in the complaint, complainant has disclosed the name of 38 persons, but names of accused persons at Sl.Nos.5 to 17, 19 to 30, 32 and 33 have been substituted by the I.O based upon the further statement of the complainant. Why there was Substitution of their names is not properly explained by this PW-16. The cross-examination of PW-16 is worth reading and falsifies the case of the prosecution.
38. It is further elicited from the mouth of PW-16 that, a requisition was sent to the Jurisdictional Magistrate to insert section 124A of IPC, so also section 295 A of IPC. This PW-16 had knowledge about the said offence, so sought to be inserted. The said offence is triable by the Sessions court. Even, he says that, with regard to the insertion of said section, he submitted his report before his superior officer. On 25-09-2013, it is stated 32 Spl.CC No.886/2018 by PW-16 that, accused NO.34 was not arrayed as accused in this case.
39. Even, it is elicited in the cross examination, that in the remand reports being submitted to the court, name of accused No.34 is not mentioned as accused in this case.
40. Even, he admits that, during the course of investigation, no requisition is made by him to say that, this accused No.34 as accused in this case. He admits that there are no written documents to show that on 25-09-2013, accused No-34 visited Humnabad.
41. The learned Public prosecutor submits that, in the photographs marked at Ex.P-21 to P-27 discloses the presence of accused No-34 on that day. Therefore, that has to be accepted. In this case, one of the accused being the owner of camera MO- 11, received the memory card but he has not produced the same before the court. According to investigating officer, this photographs have been taken as per the photographs being 33 Spl.CC No.886/2018 contained in the said memory card. These photographs have been taken as per the evidence of the Investigating Officer but date of taking the photographs is not printed on the photograph and no document is produced to show that on which date the photographs are taken. In the absence of cogent evidence with regard to the taking of the photographs on the date of incidence, it cannot be accepted that accused No-34 was really present on that day. It is hard to believe the story of the prosecution.
42. So far as the evidence of PW-17 is concerned, he just obtained the sanction order and has filed the charge sheet. It is submitted by the counsel for accused that, as per the police manual, subsequent investigating officer has to call the witnesses already been examined by the previous Investigating Officer and get confirm about the authenticity of the statement. But in this case, PW17 states that it is not necessary. According to him, he went through entire investigation papers and thereafter filed the charge sheet.
34 Spl.CC No.886/2018
43. In all criminal cases, investigation officers are the supervisors of the investigation. In the absence of corroborative evidence, the evidence of the Investigating officer become formal in nature. Counsel for accused No-34 relies upon the contents of Ex.P-28 being the sanction order. He submits before the court that, the sanction order discloses non application of mind. The officer who has issued sanction is not examined. It is reported by the investigating officer that, this witnesses ie, Suguna being the signatory to Ex.P-28 is medically unfit to give evidence. Therefore, in view of the medical records being produced by the Investigating Officer, rightly the Public Prosecutor has given up this witness.
44. On reading the contents of Ex.P-28, it is just stated in this document that, "on reading the records being submitted, following order is passed".
45. PW-16 states before the court that,, he submitted the requisition to accord sanction to the Government through the Superintendent of Police, Bidar. He sent only the FIR and 35 Spl.CC No.886/2018 complaint seeking permission to prosecute the accused persons who says that when he sought the sanction through the Superintendent of Police, Bidar, investigation was completed. Thus, nothing prevented PW-16 to send the copy of the charge sheet with all material documents, so as to enable the sanctioning authority to go through the same and then grant sanction.
46. Section 196 of Cr.P.c speaks of prosecution for offences against the State. The said section reads as under:_ "S.196. Prosecution for offences against the State and for criminal conspiracy to commit such offence. --(1) No Court shall take cognizance of--
(a) any offence punishable under Chapter VI or under 1 section 153A, [section 295A or sub-section (1) of section 505] of the Indian Penal Code (45 of 1860), or
(b) a criminal conspiracy to commit such offence, or
(c) any such abatement, as is described in section 108A of the Indian Penal Code (45 of 1860), 36 Spl.CC No.886/2018 except with the previous sanction of the Central Government or of the State Government.
²[(1A) No Court shall take cognizance of--
(a) any offence punishable under section 153B or sub-
section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 or 1860), or
(b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate].
(2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit 3[an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings:
Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.37 Spl.CC No.886/2018
(3) The Central Government or the State 4 Government may, before according sanction [under sub-section (1) or sub-section (1A) and the District Magistrate may, before according sanction under sub-
section (1A)] and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of section 155."
47. The object of the section is to prevent unauthorised persons from intruding in matters of a State by instituting State prosecutions and to secure that such prosecution shall only be instituted under the authority of the Government.
48. Incidentally, sub-section (1A) of the section came up for consideration before the apex court in State of Karnataka vs Pstor P.Raju 2006 Cr.LJ 4045: (2006)6 SCC 728. The court said that no bar is created by the provision against registration of a criminal case or investigation by the police agency or submission 38 Spl.CC No.886/2018 of a report by the police on completion of investigation as contemplated by sec.173, Cr.P.C. but the sanctioning authority has to satisfy itself and it is not desirable that the fact to which referred to, on fact of the sanction but the sanctioning authority has to satisfy itself about the case being made out to prosecute the accused. Therefore, no prosecution can be initiated for an offence mentioned in section 195 of Cr.P.C without the sanction of the Government or Central Government or State Government.
49. In this case, as rightly submitted by the learned counsel for accused No.34, this sanction order shows that, there is no proper application of mind by the sanctioning authority. As per the request of I.O, this sanction is granted. On this ground, the prosecution against the accused person is vitiated.
50. Learned counsel for accused Nos.1 to 29, 31 to 33 submits that the allegations are against the Hindhu community and it is alleged that these accused persons raised some slogans which has affected the communal feelings. He submits that 39 Spl.CC No.886/2018 mere raising of slogans by accused persons and these slogans would not constitute offence against the accused persons. In support of his submission, he relied on the following principles laid down by Punjab and Haryana High Court, which reads as under:
2009 SCC Online P & H 973: (2009) 3 RCRT (Cri) 224 Gurjatinder Pal Singh versus State of Punjab Criminal Trial - Penal code, 1860 - Ss.124-A and 153-B - Criminal Procedure Code, 1973 - S. 482
- Quashing of FIR - where the petitioner respond to the provocation speeches or anti national slogans- sedition-Imputations, assertions prejudicial national integration - Balwant Singh v. State of Punjab, (1995) 3 SCC 214 - Held mere casual raising of some slogans, a couple of times by accused persons without intention to incite people to create disorder would neither constitute any threat to Government of India nor it gives rise to feeling of enmity or hatred among different communities or religious or other groups - 40 Spl.CC No.886/2018
further observed plain reading of S.124-A IPC would show that its application would be attracted only when the accused brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India, by words either written or spoken or visible sins or representations etc. _ Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 - Held provisions of the sections read as a whole along with the explanations, make it reasonable clear that the sections aim at rendering penal only such activities as would be intended, or have tendency to create disorder or disturbance of public peace by resort to violence - Court held slogans raised by petitioner is neither an act of sedition nor it would fall within the mischief of S.153-B which makes imputations, assertions which are prejudicial to national - Integration no offence made out - State of Haryana v. Bhajan Lal, 1992 Supp (1) SC 335 - Held when allegations in an FIR taken on their fact value prima 41 Spl.CC No.886/2018 facie constitute no offence, the High Court can, exercising inherent jurisdiction, quash the FIR and criminal proceedings - FIR quashed.
51. On scrupulous reading of the citations being cited by the counsel for accused, it shows that none of the ingredients of the offence against the accused have been spoken to by any of the witnesses and except the evidence of the police officers, no other evidence is being placed on record by the prosecution to prove the guilt of the accused to the hilt. Therefore, if all these factual features are coupled with the evidence placed on record by the prosecution and the principles laid down in the aforesaid judgment and also the ingredients of the offences are read together, it can be stated that prosecution has utterly failed to prove the guilt of the accused to the hilt. Therefore, a doubt arises in the case of the prosecution and that benefit of doubt has to be extended to the accused person. Accordingly, I record my findings on point Nos. 1 to 8 in the Negative. 42 Spl.CC No.886/2018
52. In this case, MO's.1 to 11 have been seized by the police and as per the orders of the Civil Judge and JMFC, Humnabad, they are released to the interim custody of the respective claimants. Said custody has to be made absolute.
53. While granting bail to Accused Nos. 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 28, 29, 31, 32, 33, 38 have deposited a cash surety of Rs.5,000/- each. The said cash surety of respective accused have to be refunded to them with due acknowledgment and receipt by issuing " Crossed Account Payee Cheques".
54. Resultantly, I pass the following ORDER Accused Nos.1 to 29, 31 to 34 are acquitted of the charges under section 143, 147, 148, 195A, 298, 505(2), 506, 124(A) r/w section 149 of IPC by giving benefit of doubt.
Their bail bonds stand cancelled.
43 Spl.CC No.886/2018They are set at liberty.
Interim custody of M.Os.1 to 11 is made absolute.
Office to refund the cash security of Accused Nos.3,4,5,6,7,9,10,11,12,13,14,15,16,17,18,19,22, 28, 29, 31, 32, 33, 38 by issuing Crossed Account Payee Cheques.
(Dictated to the Stenographer in the open court, transcribed and typed by her, same is revised and corrected by me and pronounced in the Open Court on this the 21st day of November, 2019) (RAMACHANDRA D. HUDDAR) LXXXI ACC & SJ, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) 44 Spl.CC No.886/2018 ANNEXURE:
Witnesses examined by the prosecution.
PW1 Ramesh Kallur PW2 Subhash PW3 Jagannath Gumma PW4 Raj Patel PW5 Umesh Jambagi PW6 Siddu Pateel PW7 Santhosh Kumar PW8 Channaiah Kanade PW9 Syed Khaleem Ulla PW10 Khurshid Khan PW11 Suresh Reddy PW12 Manik Reddy PW13 Afzar Miya PW14 M.A. Samad PW15 Bhimrao Pateel PW16 Lakkappa Agni PW17 Santhosh Tattepalli
Witnesses examined by the defence/accused. -- NIL Documents exhibited by the prosecution.
Ex.P.1 Statement of PW.1
Ex.P.2 Report of PW.2
Ex.P.2(a) Signature of PW.2
Ex.P.3 Report of PW.3
Ex.P.3(a) Signature of PW.3
Ex.P.4 Report of PW.3
Ex.P.4(a) Signature of PW.3
Ex.P.5 Statement of PW.4
Ex.P.5(a) Signature of PW.4
Ex.P.6 Complaint
Ex.P.6(a) Signature
Ex.P.6(b) Signature
Ex.P.7 Further statement
45 Spl.CC No.886/2018
Ex.P.8 Statement of PW.6 (CW.10) dt:23.09.2013
Ex.P.9 1st Panchanama dt:24.09.2013
Ex.P.9(a) Signature of PW.7(CW.11)
Ex.P.9(b) Signature of PW.8(CW.12)
Ex.P.9(c) Signature of PW.16(CW.18)
Ex.P.10 2nd Panchanama dt:24.09.2013
Ex.P.10(a) Signature of PW.7(CW.11)
Ex.P.10(b) Signature of PW.8(CW.12)
Ex.P.10(c) Signature of PW.16(CW.18)
Ex.P.11 3rd Panchanama dt:24.09.2013
Ex.P.12 Statement of PW.9(CW.2)
Ex.P.13 Statement of PW.10(CW.3)
Ex.P.14 Statement of PW.11(CW.5)
Ex.P.15 Statement of PW.12 (CW.7)
Ex.P.16 Statement of PW.13(CW.8)
Ex.P.17 Statement of PW.14(CW.9)
Ex.P.18 Statement of PW.15(CW.6)
Ex.P.19 F.I.R.
Ex.P.19(a) Signature of PW.16(CW.18)
Exs.P.20 Photographs
to P.27
Ex.P.28 Permission of Government
Documents exhibited by the defence/accused. - NIL Ex.D.1 List of accused Ex.D.2 One written portion in Complaint Ex.P6 List of Material Objects marked by the prosecution:--
MO.1 to 10 Motor Cycles
MO-11 Camera
LXXXI ACC & SJ,
Bengaluru City (CCH-82)