Karnataka High Court
Ayub S/O Imamsab Punekar vs State Of Karnataka, on 25 August, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25 T H DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.101724 OF 2017
BETWEEN
AYUB S/O IMAMSAB PUNEKAR
AGE: 45 YEARS, OCC: DRIVER,
R/O: NAVANAGAR, BAGALKOTE,
TAL/DIST: BAGALKOTE.
... PETITIONER
(BY SRI.S B HEBBALLI, ADVOCATE)
AND
1. STATE OF KARNATAKA,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA DHARWAD BENCH,
DHARWAD,
(PERTAINING TO NAVANAGAR P.S. BAGALKOTE)
2. GUNDAPPA S/O. SANGAPPA
JOINT DIRECTOR BENGALURU
PRESENTLY AT VIJAYAPURA,
RMO, DISTRICT HOSPITAL, VIJAYAPURA.
... RESPONDENTS
(BY SRI.RAMESH B. CHIGARI, HCGP FOR R1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO. 9 OF 2013 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND CJM BAGALKOT AGAINST THE PETITIONER FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 336, 427,
353, 504, 506 READ WITH SECTION 149 IPC AND SECTION 3
OF PREVENTION OF DAMAGES TO PUBLIC PROPERTY ACT, 1984
AND DISMISS THE COMPLAINT AGAINST THE PETITIONER.
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THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This criminal petition is filed under Section 482 of Cr.P.C. for quashing the entire proceedings in CC No.9/2013 pending on the file of the Prl. Senior Civil Judge and CJM, Bagalkot against the petitioner for the offences punishable under Sections 143, 147, 336, 427, 353, 504, 506 read with Section 149 of IPC and Section 3 of Prevention of Damage to Public Property Act, 1984.
2. The facts leading to this petition are that CPI Bagalkot Town Circle filed a charge sheet against the accused Nos.1 to 23 for the offence punishable under Sections 143, 147, 336, 427, 353, 504, 506 r/w Section 149 IPC and Section 3 of Prevention of Damages to Public Property 3 Act, 1984 alleging that on 12.04.2011 at about 4.30 p.m. in evening at Section No.11, District Government Hospital, Navanagar, Bagalkot all the accused belonging to two communities formed an unlawful assembly with the common object to cause damage to public property and they were holding deadly weapons like stones, bottles quarreled each other and threw stones and bottles at the District Government Hospital, resulting in damage to the windows of the Hospital, obstructed the public duty doctors in discharge of their duties, abused the doctors in filthy words and threatened to kill the medical officers etc. One doctor Gundappa Sangappa lodged the complaint and it was registered in Crime No.36/2011 on the file of Navanagar Police Station, Bagalkote. The Investigating Officer after conducting 4 investigation recorded statements of material witnesses, seized the material objects and filed charge sheet against 23 accused persons. The accused No.7 and 14 named in the charge sheet were not arrested and charge sheet against them was not filed for want of identity. The trial was held against the remaining accused and the Prl. Senior Civil Judge and CJM Bagalkot by his judgment dated 17.01.2013 in CC NO.84/2011 was pleased to acquit all the accused i.e. accused Nos.1 to 6, 8 to 13 and 15 to 23 mainly on the ground that the identity of the accused persons was not established and by giving them a benefit of doubt. Split up charge sheet was filed against the accused No.14 and he underwent trial and ultimately he was also acquitted. The present petitioner was accused No.7 in the earlier 5 charge sheet. The Police filed split up charge sheet on 19.01.2013 against accused No.7 which was registered as CC No.9/2013 on the file of Prl. Senior Civil Judge and CJM, Bagalkot. While filing the split up charge sheet the Police relied upon the material which was relied upon in the previous charge sheet which was subject matter in CC No.84/2011. On 22.07.2017 Police recorded further statements of some of the charge sheet witnesses stating that the name of the father of the accused No.7 was wrongly mentioned as "Mohammadsab" instead of "Imamsab". The Police have also gave requisition to the learned Magistrate that the name of father of accused No.7 who is accused No.1 in the split-up charge-sheet giving rise to CC No.09/2013 is wrongly mentioned as Mohammadsab instead of 6 Imamsab. Consequently, on that basis the learned Magistrate took cognizance against the petitioner by order dated 28.07.2017 and proceeded to issue summons to the petitioner. The petitioner being aggrieved by the initiation of the criminal proceedings in Cc No.9/2013 on the file of Prl. Senior Civil Judge and CJM, Bagalkot has preferred this petition challenging the split-up charge sheet.
3. Heard the learned counsel for the petitioner and the learned HCGP for respondent-State.
4. The main grounds of challenge are that the evidence placed on record by the prosecution in CC No.84/2011 does not make out a prima facie case to prove the offences said to have been committed by the accused 7 No.7 who is the petitioner herein. PWs.6 to 8 who are said to be the eye witnesses for the alleged offences have not supported the case of the prosecution. PW.3-Doctor of Government Hospital has not specific as against the accused persons and he has stated that he has no occasion to see the persons who obstructed for discharge of public duty and pelted stones on windows since he was engaged in treating the injured persons. PW.1 and 2-panchas to the spot and seizer mahazer have not supported the case of the prosecution. PW-4 who is the complainant has not stated the names of those persons and he do not remember the name of those persons who's names have been stated in his further statement. The entire evidence in CC No.84/2011 has not proved the prosecution 8 version. Even if trial is held in split-up case in CC No.9/2013 no purpose would be served.
5. It is an admitted fact that Navanagar Police Bagalkot have submitted charge sheet against accused Nos. 1 to 3 for the offence punishable under Sections 143, 147, 336, 427, 353, 504, 506 R/W Section 149 IPC and Section 3 of Prevention of Damages to Public Property Act, 1984. Out of 23 accused, 21 accused i.e. accused Nos.1 to 6, 8 to 13 and 15 to 23 faced trial and they were acquitted as the prosecution failed to prove their presence on the spot at the time of incident as the eye witnesses have been turned hostile. Since accused No.7 was not available for trial, split up charge sheet came to be filed against the petitioner-accused No.7.
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6. The main contention of the learned counsel for petitioner-accused No.7 is that in CC No.84/2011 in which accused Nos.1 to 6, 8 to 13 and 15 to 23 were subjected to trial no convincing evidence was placed by the prosecution to prove the participation of accused in commission of the crime. As such said accused persons were acquitted. Now if the trial is held in the present split up charge sheet the same witnesses who are examined in CC No.84/2011 have to be examined and on the basis of their evidence no conviction is possible. Thus, further proceedings in CC No.9/2013 require to be quashed.
7. In support of the said contention, the learned counsel for the petitioner-accused No.7 has relied on the following decisions:- 10
1. Central Bureau of Investigation V.s. Akhilesh Singh, reported in AIR 2005 SC 268 and
2. Mohammed Ilias V.s. State of Karnataka, reported in 2001(3) Kar.L.J. 551.
8. In Central Bureau of Investigation V.s. Akhilesh Singh, reported in AIR 2005 SC 268, it is observed in paragraph No.6 as under:
"6. Another contention urged by the appellant was that the High Court exercised the jurisdiction under Section 482 of the Criminal Procedure Court after a long lapse of time. It is true that the respondent challenged the framing of charges against him after a considerable delay, but it seems that the order of discharge passed in favour of the main accused attained finality only in 1994 when this Court dismissed the Special Leave Petition. It was thereafter only that the respondent approached the court with 11 an application under Section 482 of the Criminal Procedure Code and the learned single Judge in those circumstances condoned the delay. We do not think that the power exercised by the High Court suffered from any illegality or perversity. Going by the facts and circumstances of the case, we do not think that this is a fit case where this Court can interfere. The appeal is dismissed accordingly."
9. In Mohammed Ilias V.s. State of Karnataka, reported in 2001(3) Kar.L.J. 551, it is held that "The petitioner is the accused in the case and he is shown to be absconding.
Therefore, the case against the petitioner was split up and charge-sheet was laid against the other available accused 1 to 3 for committing an offence punishable under Sections 498-A and 307 of the IPC read with Section 34 of IPC. After the trial, the Sessions Judge acquitted the accused 1 to 3. The petitioner was 12 arrested and proceedings were revived against him in the split charge-sheet...... In the instant case also the full-fledged trial was held against accused 1 to 3 in respect of the same offence. In the second round of trial against the petitioner, the evidence to be produced cannot be different from the one that was produced by the prosecution in the earlier case. Therefore, in that view of the matter the proceeding is quashed."
10. In view of the observations made in the aforesaid cases, it is necessary to consider whether the evidence to be placed on record by prosecution witnesses is likely to be proved against petitioner-accused No.7. As already stated above, PWs 6 to 8 who are the eye witnesses to the alleged incident have not supported the case of the prosecution. PW.3- doctor of the Government Hospital has deposed that he had no occasion to see the persons who 13 obstructed for discharge of pubic duty and pelted stones on the windows since he was treating injured persons. PW.1 and PW.2 who are panchas to spot and seizer mahazer have not supported the case of the prosecution. PW.4 who is the complainant has stated that he do not remember the names of those persons who's names are stated in his further statement. The entire material evidence of the prosecution is the same against the present petitioner also. Since the evidence to be produced cannot be different from that one which was produced in CC No.84/2011, no useful purpose would be served in holding fresh trial against the petitioner-accused No.7.
11. For the discussion made above, when there are no chances for conviction of the petitioner-accused No.7 by making fresh trial 14 and the said process is nothing but futile exercise. There is no material on record which establishes the presence of accused persons with their identity. As such, in my opinion benefit of doubt will have to be given to the petitioner-accused No.7 also. Hence, I pass the following:
ORDER Criminal petition filed under Section 482 of Cr.P.C. is allowed.
Further proceedings in CC No.9/2013, pending on the file of Prl. Senior Civil Judge and CJM Bagalkot in so far as petitioner-accused No.7 is quashed.
Sd/-
JUDGE Hmb