Karnataka High Court
Ashok B Dani vs State Of Karnataka By on 28 October, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT
®
BANGALORE
DATED THIS THE 28th DAY OF OCTOBER 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.590 OF 2014
BETWEEN:
Ashok B Dani,
Son of Late Bikalal,
Aged 57 years,
No.10, PS Lane,
Cottonpet, Cottonpet Cross,
Bangalore - 560 053.
...PETITIONER
(By Shri. R. Nitin and Shri. B. Siddeswara, Advocates for M/s.
C.H.Hanumantharaya and Associates)
AND:
State of Karnataka by
Malleswaram Police Station,
Bangalore City,
Represented by State Public
Prosecutor,
High Court Building,
Bangalore - 560 001.
...RESPONDENT
(By Shri. K.R. Keshavamurthy, State Public Prosecutor-1)
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This Criminal Revision Petition is filed under Section
397 read with 401 of the Code of Criminal Procedure, 1973,
praying to set aside the order dated 3.4.2014 passed by the
Presiding Officer, Fast Track Court-V, Bangalore in
S.C.No.640/2012 and discharge him from the case.
This Criminal Revision Petition having been heard and
reserved on 22.09.2014 and coming on for pronouncement of
Orders this day, the Court delivered the following:-
ORDER
The learned State Public Prosecutor is directed to take notice for the respondent.
2. There is a delay of 24 days in filing the petition. For the reasons stated in the affidavit filed in support of the application, the delay is condoned.
3. Given the circumstances of the case, the petition is considered for final disposal even at this stage.
4. The present petition is preferred challenging the rejection of an application, under Section 227 of the Code of Criminal Procedure, 1973, (Hereinafter referred to as 'the Cr.PC' for brevity) by the Court below.
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5. The facts of the case are as follows:
One Selvaraj is said to have filed a complaint to state that on 1.10.2011 at about 11:30 a.m., he had received a phone call from one Muniyappa, who was said to be a follower of the complainant's brother, one Nataraj, who was stated to be a Corporator of the Bruhath Bangalore Mahanagara Palike, representing Ward no. 94, Gandhinagar. Muniyappa is said to have urged the complainant to rush to Malleswaram Market and when the complainant had reached there, Muniyappa is said to have taken the complainant to the KC General Hospital, where
- in a parked ambulance, the complainant's brother was lying with bandages on his face, head, stomach and other parts of his body. He was apparently dead. On further enquiry, the complainant had learnt that his brother Nataraj was said to have been proceeding from his home to the Malleswaram Market, on a two wheeler. It transpires that Nataraj was deliberately blocked by a white coloured Maruti car which had followed him and had overtaken his two wheeler and four unknown 4 persons are said to have attacked him with machetes and a knife. And apparently had caused serious injuries and then are said to have fled in the said Maruti car. It was stated that Nataraj was then admitted to the Malleswaram Hospital and later to the Mallige Hospital. He was however, declared dead at the time of arrival at the hospital. It is on receiving this information that the complainant had reported the matter to the Police.
6. After completion of the investigation, the police are said to have filed a charge sheet against 12 accused persons, for offences punishable under Sections 143, 144, 147, 148, 341, 324, 302, 201, 120(b), 118 read with 149 of the Indian Penal Code , 1860 (Hereinafter referred to as 'the IPC' for brevity).
7. It is the petitioner's case that his name has mysteriously appeared in column 2 of the Charge sheet. It is the petitioner's vehement protest that he is not in any manner connected with the incident, nor does he have any connection with any of the other accused. The petitioner seeks to point out 5 that his name does not figure in the column where the accused are named, in any of the several remand applications, the last of which was made on 4.1.2012. But in the Charge sheet of the same date, the petitioner's name was disclosed and he had been shown as an absconder.
It is pointed out that there is no basis on which the petitioner could be named as an accused person in the charge sheet. This is especially so when the contents of the charge sheet itself would disclose that the deceased Nataraj and Accused no.6 were said to be political rivals. It was further alleged by the prosecution that Accused nos. 5,6 & 7 are said to have conspired to kill the deceased, with the assistance of Accused nos. 1 to 4, 8, 10 and 11 . Accused nos. 4 and 8 are said to have kept watch over the movements of the deceased and the other accused, namely Accused nos.1,2,3, 10 and 11 had followed the deceased in a car and had waylaid him on Sampige Road, after blocking his two wheeler with the car and are said to have attacked him with deadly weapons. It is further 6 alleged in the charge sheet that Accused no.5 had paid Accused no.4 in consideration of having carried out the above attack, and who in turn is said to have shared the money with Accused nos. 1,2,3,8,10 and 11. It is thus contended by the petitioner that the charge sheet does not indicate the petitioner's direct involvement or connection with the entire episode and it is indeed a mystery as to how the petitioner is named as an accused. However, the police are said to have claimed that as there was a sum of Rs.1.50 lakh paid by the petitioner into the bank account of M/s Murugan Arts, and that this was the money used by accused no.5 to make payments to the accused, as already stated, for their participation. In other words, it is suggested that the petitioner had in the guise of making payments in respect of certain contractual obligations, had funded the commission of the offence. This is evidently a surmise of the Investigating officer, though of the 92 witnesses named as the charge sheet witnesses, none had even hinted at the petitioner's connection with the incident in any manner. 7
The petitioner claims that he has been recognized as a community leader, actively involved in social work and politics. He has been elected thrice as a Corporator of the BBMP. He is said to be a B.Com, LL.B. degree holder. He is a Gujarati and the President of the Gujarati Samaj, an association of Gujaratis in Bangalore. He is also said to be an office bearer of other institutions. His contribution to society over the decades is said to be a matter of record and that he has no criminal record.
In so far as the amount said to have been paid by the petitioner to M/s Murugan Arts, is concerned, the same is not denied by the petitioner. It was an amount paid for certain works that were to be carried out by the said concern, namely, preparing banners and sign boards in connection with a major function organized by the petitioner to celebrate Gandhi Jayanthi , as was being done over the past several years.
It is stated that this court had granted anticipatory bail in a petition filed by the petitioner, earlier. 8
It is contended that on completely scouring the material on the basis of which the charge sheet is filed, it is evident that the name of the petitioner is found mentioned by Accused nos.6 and 7, in their alleged voluntary statements. The same are clearly inadmissible in evidence at every stage of the proceedings. Further, CW-26 in a statement said to have been recorded under Section 161 of the CrPC, is said to have stated that he overheard the name of the petitioner being mentioned by others while talking amongst themselves. It is again pointed out that the said statement even if taken entirely, would be inadmissible in the eye of law.
8. In the light of the above, in the absence of any basis in the charge sheet, to frame charges against the accused, in that, on the basis of the above nebulous statements, which are inadmissible, it is futile to expect that any role can be attributed to the petitioner in any charge that may be framed. Further , the prosecution cannot be said to be in a position to improve its case on the basis of the material now on record. Hence, it is 9 contended that, on a prima facie test, the petitioner's involvement in the episode not being evidenced by any acceptable material, he ought to be discharged from the case.
The learned counsel for the petitioner relies on the following authorities :
1. Surinder Kumar v. State of Punjab, 1999 SCC (Cri) 33,
2. Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2009) 1 SCC (Cri) 51.
9. The learned State Public Prosecutor, on the other hand, seeks to justify the impugned order.
10. The learned counsel for the petitioner has produced certified copies of the relevant documents from the lower court record, as this court was not inclined to call for the records as that would have stalled the entire proceedings before the lower court and since the interim order of stay granted was restricted to the petitioner.
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11. Without having to repeat the facts and the sequence of events in the proceedings before the lower court, it is noticed that during the investigation into the allegations in the complaint, there were 12 remand applications made between 9.10.2011 and 4.1.2012, the date of filing of the last of such remand applications and co-incidentally the date of filing of the charge sheet, as well. In all the remand applications, there is no mention of the petitioner, except accused nos. 1 to 11.
When even on 4.1.2012, the prosecution had not named the petitioner as an accused, it is perplexing that the charge sheet of the same date, viz., 4.1.2012, the petitioner is named as an accused who was said to be absconding.
The voluntary statements of Accused nos. 6 and 7, purportedly incriminating the petitioner are claimed to have been recorded on 9.10.2011. But significantly there is no mention of this in any of the remand applications filed subsequently.
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Similarly, the statement of CW-26, the sole witness against the petitioner, is said to have been made on 17.10.2011. The same does not find mention in any of the remand applications filed subsequently.
It is seen that the entire case against the petitioner is based on the above said voluntary statements made by the accused nos. 6 and 7, before the police, which is wholly inadmissible in evidence, under Section 25 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act', for brevity). And the incriminating statements made by CW-26, against the petitioner are again inadmissible under Section 60 of the Evidence Act .
It is also to be noticed that confessions made by co-accused are not admissible under Section 30 of the Evidence Act. Even though Section 30 permits recording of evidence of such a confession, it would not be admissible if it is hit by Section 25 of the Evidence Act.
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It is significant that the Investigating Officer had filed an application seeking permission to file an additional charge sheet on the ground that the petitioner herein had been arraigned as an accused no.12. The same having been allowed, the police are said to have filed a second charge sheet , which is supported by additional witnesses, CWs 93 to 98, none of whom have made any reference to the petitioner. On the other hand the additional charge sheet may be construed as absolving the petitioner entirely.
In the case of Surinder Kumar, supra, the apex court has laid down that in a given case when the accused are sought to be charge sheeted on the basis of an extra-judicial confession and are produced before the court on that basis, the application for remand ought to disclose the fact that the basis of the accusation is such extra judicial confession and a failure to disclose this vital information, as that was the only material on which the prosecution could primarily rely upon- it would not be open for the prosecution to rely upon any such alleged 13 confession. In the instant case on hand, the situation is similar- the only evidence that is sought to be brought against the petitioner in naming him as an accused, almost as an after thought, is only on the basis of the alleged voluntary statements of Accused no. 6 & 7 and the hearsay evidence of CW-26. In the face of the circumstance that this does not find mention in any of the remand applications, of which several were filed after the above evidence was said to have been gathered by the Investigating Officer. Hence the prosecution is precluded from relying on the said evidence. In which event the case as against the petitioner cannot be sustained.
Further in the case of Yogesh v. State of Maharashtra, supra, the Apex court while relying upon its earlier decisions in Union of India v. Prafulla Kumar Samal ,(1979) 3 SCC 4 and State of Bihar v. Ramesh Singh (1977) SCC (Cri) 533 - has laid down as follows :
"15. Chapter XVIII of the Code lays down the procedure for trial before the Court of Session, pursuant to an order of commitment under Section 14 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.
16. It is trite that the words "not sufficient ground for proceeding against the accused"
appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.
However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him 15 gives rise to suspicion only as distinguished form grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible."
It is evident that the prosecution would not be in a position to rely upon the only evidence that is said to be available as against the petitioner, which is referred to hereinabove. It is a foregone conclusion that the petitioner would have to be acquitted, therefore it is a fit case where the petitioner ought to have been discharged from the case. The petition is hence allowed and the petitioner is discharged from the case.
Sd/-
JUDGE KS*