Karnataka High Court
Chethan vs State Of Karnataka on 24 July, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:29078
CRL.P No. 6129 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 6129 OF 2024
BETWEEN:
1. CHETHAN
S/O LATE GURUSWAMY
AGED ABOUT 28 YEARS
R/AT NO.232, 5TH MAIN ROAD
7TH CROSS, VENKATARAMANAGARA
CHAMRAJPET, BANGALORE - 560018
...PETITIONER
(BY SRI. CHANDRAPPA K.N., ADVOCATE)
AND:
1. STATE OF KARNATAKA
STATION HOUSE OFFICER
THIILAK NAGAR POLICE STAITON
Digitally signed
by NAGAVENI BANGALORE - 569001
Location: HIGH REP BY STATE PUBLIC PROSECUTOR
COURT OF HIGH COURT OF KARNATAKA
KARNATAKA BANGALORE - 560001
2. RAVI KIRAN M.A.
AGED MAJOR
POLICE INSPECTOR
THILAK NAGAR POLICE STATION
BANGALORE CITY - 560041
...RESPONDENTS
(BY SRI. P. THEJESH, HCGP)
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NC: 2024:KHC:29078
CRL.P No. 6129 of 2024
THIS CRL.P. IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS IN MATTER BEARING
S.C.NO.485/2023, PENDING ON THE FILE OF LII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-53) AS
AGAINST THE PETITIONER HEREIN WHEREIN THE PETITIONER
HEREIN IS ARRAIGNED AS ACCUSED NO.3 FOR THE ALLEGED
OFFENCES P/U/S 399 AND 402 OF IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
(PER: HON'BLE MR JUSTICE M.NAGAPRASANNA) Heard Sri. Chandrappa K.N., learned counsel appearing for the petitioner and Sri. Thejesh P., learned High Court Government Pleader appearing for the respondents.
2. The petitioner is before this Court calling in question continuation of proceedings against him in S.C.No.485/2023, notwithstanding the fact that the other accused in the said proceedings, have all been acquitted. The petitioner along with the other accused i.e., five others, get embroiled in a crime -3- NC: 2024:KHC:29078 CRL.P No. 6129 of 2024 No.200/2014, for offences punishable under Sections 399 and 402 of the IPC.
3. The police conduct investigation and file a charge sheet. Filing of the charge sheet lead to the trial being conducted against all the accused. The concerned Court, in terms of its judgment dated 13.03.2023, acquits accused Nos.5 and 6 of the offences under Sections 399 and 402 of the IPC as observed hereinabove. The petitioner - accused No.3 at the relevant point in time was not available for the trial and therefore, the concerned Court splits the charge against the petitioner and the trial is directed to be continued in split up charge sheet in S.C.No.485/2023. Continuance of which has now driven the petitioner to this Court in the subject petition.
4. Learned counsel appearing for the petitioner submits that the judgment of acquittal passed in S.C.No.613/2017 would enure to the benefit of the petitioner, as the offences alleged are the ones punishable under Sections 399 and 402 of the IPC, which deal with preparation and commission of dacoit.
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5. Learned High Court Government Pleader would refute the submissions to contend that as the other accused have undergone trial and are acquitted, this accused should not be permitted to take recourse to a proceeding under Section 482 of the Cr.P.C. to draw parallel to what has been held qua the other accused.
6. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.
7. The afore-narrated facts are not in dispute. The petitioner - accused No.3 getting embroiled in a crime along with five others is a matter of record. The issue being tried in S.C.No.613/2017 leads to the acquittal of all the other accused.
The reasons rendered to acquit those accused is as follows:
"25. The prosecution has failed to adduce clear and convincing evidence to show that the accused were assembled at alleged date, place and time in order to commit the offence of dacoity and they were making preparation to commit the offence of dacoity. Further prosecution has also failed to prove beyond reasonable doubt that M.O.1 to 6 were seized from the possession of accused. Further the prosecution has also failed to prove the conduct of spot mahazar and seizure mahazar beyond reasonable doubt. P.W.1 and 2 are the police officials. There is no corroborative evidence of any independent witness the evidence of P.W.1 and 2. Further it is to be noted here that P.W.1 is the first -5- NC: 2024:KHC:29078 CRL.P No. 6129 of 2024 informant and he has also partly conducted the investigation of the case. Though P.W.1 has given his information about the incident, he himself has registered criminal case against the accused and he himself has recorded the statement of the panchas and statement of the witnesses. Further P.W.1 has recorded the voluntary statement of the accused and he has also took the accused to the police custody and conducted the investigation of the case. The first informant cannot act as Investigating Officer to investigate the matter. This fact is also creates doubt about the investigation of P.W.1. Major part of investigation is conducted by P.W.1 alone. P.W.5 has only arrested the accused No.5 and filed charge sheet. Under these facts and circumstances, I am of the opinion that only on the basis of interested and uncorroborated evidence of P.W.1 and 2 and for the other facts and circumstances as discussed above, doubt arises about the case of the prosecution that the accused have committed the offences punishable u/Sec.399 and 402 of IPC. The prosecution has failed to prove the commission of the said offences by the accused No.5 and 6 beyond reasonable doubts. As such, I am of the opinion that benefit of doubt should go in favour of accused No.5 and 6 and accused are entitled for acquittal for the alleged offences. Accordingly, I answer Points No.1 and 2 in Negative.
26. Point No.3:- In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
ORDER Accused No.5 and 6 are acquitted under section 235(1) of Cr.P.C., for the offences punishable under sections 399 & 402 of I.P.C.
The bail bonds of the accused No.5 and 6 and surety bonds of sureties of the accused No.5 and 6 are hereby stands cancelled.
Accused No.5 and 6 are set at liberty forthwith.
It is noticed that no split up charge sheet is filed against accused No.3 inspite of order dated 28.09.2018. There is no reference in the order sheet about filing of split up charge sheet. Hence, issue notice to I.0. seeing clarification whether split up charge sheet is filed against -6- NC: 2024:KHC:29078 CRL.P No. 6129 of 2024 accused No.3 or not. If it is found that no split up charge sheet is filed against accused No.3, then issue notice to I.0. to file split up charge sheet immediately against accused No.3 Since case against accused No.3 is yet to be tried, presence of M.O.1 to 6 is very much necessary. As such, no order as to disposal of M.O.1 to 6 is passed and those material objections are ordered to be kept intact till confirmation of the completion of the trial against accused No.3."
(Dictated to Stenographer, directly over computer corrected and then pronounced by me in open court on this the 13th day of March, 2023)"
The offences alleged against the petitioner is identical to what was alleged qua accused Nos.5 and 6 as the offences are the ones punishable under Sections 399 and 402 of the IPC. In the light of the aforesaid, the petitioner - accused No.3 cannot but be held to be entitled to the enurement of the findings rendered qua accused Nos.5 and 6 as the role and the allegations are all identical to accused Nos.5 and 6. Permitting further trial to continue in a case where the petitioner would eventually gets acquitted would be waste of judicial time, the time too precious today. Therefore, I deem it appropriate to the draw a parallel to what the concerned Court has rendered in its judgment qua accused Nos.5 and 6 and obliterate the proceedings against the petitioner in the case at hand.-7-
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8. The view of mine, in this regard, is fortified by the judgment of this Court dated 02.09.2022 passed in Crl.P.No.7720/2022, which reads as follows:
"4. The learned Sessions Judge, by his order dated 01.12.2021, acquits accused Nos.1 to 11, 14, 16 to 18 and 21 in S.C.No.103/2018. At the relevant point in time, when the trial was on, the petitioner was not available for trial, as he was allegedly absconding and a split charge sheet was issued against the petitioner in S.C.No.87/2019 in terms of an order of the learned Sessions Judge dated 10.06.2019. The continuation of proceedings in S.C.No.87/2019 is what drives the petitioner to this Court in the subject petition.
5. Learned counsel, Sri. Lethif B., appearing for the petitioner would contend that the allegations are the ones punishable under Sections 143, 147, 148, 448, 323, 324, 427, 395, 149 of the IPC. The said allegation is necessarily to be common against all the accused and it is infact common against all the accused. The acquittal order passed by the concerned Court is on the basis of the complainant himself turning hostile. In the teeth of the fact that the complainant himself turned hostile, the Court holds that the prosecution has failed to prove the guilt beyond all reasonable doubt and therefore, the petitioner is entitled to be the same order as is passed by the concerned Court acquitting the aforesaid accused.
6. Learned HCGP would however refute the submission to contend that the petitioner would escape trial, should necessarily face trial and considered for acquittal by the concerned Court and this Court should not interfere at this juncture, as a person, who has escaped trial should not be shown any indulgence under section 482 of Cr.P.C .
7. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.
8. The afore-narrated facts are not in dispute. The allegation against the petitioner are the ones punishable under -8- NC: 2024:KHC:29078 CRL.P No. 6129 of 2024 Sections 143, 147, 148, 448, 323, 324, 427, 395, 149 of the IPC. The allegation was against 22 accused and the offences alleged were common, the allegations are also common. The concerned Court, by its order dated 01.12.2021, acquits accused Nos.1, to 11, 14, 16 to 18 and 21 by rendering the following reason:
REASONS
9. Poin"t No.1 to 5: The P.W.1 has stated that on 15.09.2013 at about 8.30 p.m. when P.W.4 was insider the Bar, somebody picked up quarrel with him and those persons damaged the Bar and hence, he sustained injuries. He has also stated that, the P.W.2 also sustained injuries in the incident and both of them taken treatment in the Wenlock hospital. The P.W.2, P.W.4 and Babanna sustained injuries and therefore, he filed the first information before the Police. He has deposed that the police came to the Bar and drawn the panchanama in Ex.P.2. The P.W.2 has deposed that when he was in the Bar of P.W.1 many people assembled and one of them thrown stone towards him and therefore, himself and P.W.4 sustained injuries and took treatment in the hospital.
10. P.W.3 has deposed that on 15.09.2013 at about 8.30 p.m. the P.W.4 was inside the Bar, about 25 persons came to the Bar and there was quarrel between P.W.4 and those 25 persons. He has deposed that such 25 persons damaged the Bar and he took treatment in Wenlock hospital for the injuries sustained in the incident. The P.W.1 to 3 have not stated the name of any of the accused of this case and even not identified the accused. The prosecution treated these witnesses hostile and cross examined. The P.W.1 to 3 have totally denied the allegation that the accused of this case have quarrelled with P.W.4, assaulted P.W.7 to 7, damaged the Bar and committed dacoity of Rs.2,000/- from the Bar.
11. The P.W.4 to 7 have totally denied the incident itself. The P.W.8 and P.W.9 have deposed that they have not witnesses the incident. The P.W.4 to 9 have been cross examined by the prosecution and even in the cross-examination the -9- NC: 2024:KHC:29078 CRL.P No. 6129 of 2024 P.W.4 to 9 denied the allegation made by the prosecution. Therefore, there is no evidence against the accused that they have formed unlawful assembly, committed criminal trespass in the Bar of P.W.1, voluntarily caused hurt to P.W.1 to 7 and committed dacoity of Rs.2,000/- from the Bar of P.W.1. Hence, the accused cannot be convicted for the offences alleged against them because of insufficient evidence. Accordingly, I answer these points in the Negative and proceed to pass the following:
ORDER Acting under Section 232 of Code of Criminal Procedure the accused No.1 to 11, 14, 16 to 18 and 21 are acquitted for the offences punishable under Section 143, 147, 148, 448, 323, 324, 395, 427 r/w 149 of Indian Penal Code.
Their bal bond stands cancelled.
Office is directed to retain the material objects as they are required in split up cases."
9. The reason for acquitting the other accused as afore-quoted is the fact that the complainant himself had turned hostile and other witnesses had not supported the charge sheet. If the complainant had turned hostile and it resulting in acquittal of the aforesaid accused, it cannot but be said that the same would be applicable to the petitioner as well, notwithstanding the fact that he was not available for trial. It is not the case of sending the petitioner for trial for the very same offences and result being the same as is ordered on 01.12.2021 in S.C.No.103/2018. It would be an exercise in futility to permit further trial, which would be of no utility and be a waste of judicial time.
10. The view of mine, in this regard, is fortified by the judgment rendered by a Co-ordinate Bench of this Court in Crl.P.4796/2017, wherein the Co-ordinate Bench considering identical set of facts has held as follows:
"12. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that petitioner/accused was never traced and non-
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NC: 2024:KHC:29078 CRL.P No. 6129 of 2024 bailable warrant issued against him was never executed. Hon'ble Apex Court in the case of CENTRAL BUREAU OF INVESTIGATION vs AKHILESH SINGH reported in AIR 2005 SCC 268 has held quashing of charge and order discharging co-accused can be passed, if the proceedings initiated against co-accused is on similar allegations and if said judgment had reached finality. It is also held that discharge of a co-accused by the High Court by holding that no purpose would be served in further proceeding with the case, is just and proper. In another ruling in MOHAMMED ILIAS vs. STATE OF KARNATAKA reported in (2001) 3 Kant LJ 551 this Court has held as under:
"The petitioner is the accused in the case and he is shown to be the absconding. Therefore, the case against the petitioner was split up and charge-sheet was laid against other available accused Nos.1 and 3 for committing an offence punishable under Sections 498A and 307 IPC r/w 34 Indian Penal Code, 1860. After the trial, the Sessions Judge acquitted the accused Nos.1 to 3. The petitioner was arrested and proceedings were revived against him in the split charge sheet.... In the instant case also, the full pledged trial was held against accused Nos.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."
13. Yet, in another ruling THE STATE OF KARNATAKA vs. K.C.NARASEGOWDA reported in ILR 2005 Kar. 1822 this Court has held to the following effect:
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NC: 2024:KHC:29078 CRL.P No. 6129 of 2024 "As the case before the Sessions Judge is not a pending case, he cannot keep the file any longer pending nor he can close the case as he has to await appearance of the accused or the production by the State, for passing orders regarding undergoing sentence. As such, considering these peculiar facts and circumstances, it is deemed proper to exercise the inherent jurisdiction under Section 482 of Cr.P.C. instead of jurisdiction under Section 385 of Cr.P.C. in the interest of justice. As the entire material evidence of the prosecutions is one and the same, as against all the accused including the non-appealing accused No.1, who is said to be absconding, there is no second opinion that he is also entitled for the same benefit of doubt as he is extended for his co-
accused. Accused acquitted by giving benefit of doubt."
14. In this background, when the facts on hand are examined, it would clearly indicate that not only complainant but also other witnesses including the inmates of ambulance in which they were travelling on the date of incident, had turned hostile in the proceedings which was continued against co-accused. Though, P.W.1 - complainant had admitted that he has lodged a compliant as per Ex.P-1 and had also admitted that he has given a statement identifying the accused before the Investigation Officer, he did not identify the accused persons present before Court. In fact, statements given by him as per Exs.P-2 to P-4 when confronted, he denied the same and had also denied the suggestion put by the public prosecutor that he had furnished the statements as per Exs.P-2 to P-4 as false. P.W.2 to P.W.8 had not identified the accused persons present before the jurisdictional
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NC: 2024:KHC:29078 CRL.P No. 6129 of 2024 Sessions Court. In fact, they have not even identified the statements made by them before the Investigating Officer and nothing worthwhile has been elicited in their cross- examination to disbelieve their evidence. Thus, taking into consideration said evidence available on record Sessions Court had arrived at a conclusion that evidence of the witnesses examined by prosecution would not come to their assistance. In fact, witnesses to the seizure panchnama - Ex.P-40, who were examined as P.W.16 and P.W.17, have also turned hostile and they have stated that police had called them a year back to the police station and when they went to the police station, they had not seen any accused persons in police station. However, they admit police having taken their signatures on the papers and contents of it were not known to them.
15. It is in this background, trial Court on appreciation of entire evidence had acquitted all the accused persons by holding that prosecution had failed to prove the offence alleging accused persons beyond reasonable doubt attracting the ingredients of provisions of the offence alleged against them. In fact, Sessions Court has observed that there was certain communal disturbance in Dakshina Kannada district and other places at Bantwal Taluk and to please on community of people, the Investigating Officer might have falsely implicated the accused persons in a false case or to avoid the blame to be received from the public or other community people and such possibilities cannot be ruled out. In this background, when prayer of petitioner sought for in the present petition is examined, it can be noticed that contents of supplementary charge sheet filed against the petitioner is similar, identical and in fact, it is replica of charge made against accused Nos.1 to 23 and 25 to 33, who15 were tried in S.C.No.12/2007, 94/2007 and 26/2008 and had been acquitted.
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16. In that view of the matter, this Court is of the firm view that judgment rendered by trial Court insofar as it relates to accused Nos.1 to 23 and 25 to 33 is similar and identical to the charge made against the present petitioner. This Court does not find any independent or separate material having been placed by the prosecution against present petitioner to put him on trial once again and directing the petitioner-accused to undergo the order of trial, which ultimately would fetch same result as that of accused Nos.1 to 23 and 25 to 33. When allegation made against accused Nos.1 to 23 and 25 to 33 is compared with the allegation made against present petitioner, it has to be necessarily held that they are identical, similar and inseparable in nature and no independent decision can be taken against the present petitioner. Therefore, no purpose would be served even if the present petitioner is ordered to be tried by the trial Court.
17. In view of the afore stated facts and the law laid down, as discussed hereinabove, it would emerge that there would be no harm or injustice that would be caused to prosecution if benefit of acquittal order is passed in favour of accused - petitioner, since accused Nos.1 to 23 and 25 to 33 against whom similar allegation had been made is already acquitted. Though, it is contended by Sri. Rachaiah, learned HCGP appearing for the State that petitioner should not be extended said benefit, since he is an absconder, by relying upon judgment of Coordinate Bench this Court is not inclined to accept said contention for single reason that said judgment had been rendered based on the judgment of Apex Court in the case of DEEPAK RAJAK vs. STATE OF WEST BENGAL reported in (2007) 15 SCC 305 where under Apex Court after noticing the facts obtained in the said case, had held that benefit of acquittal, should be extended to the appellant, since co-accused had been acquitted and held that a departure can be made in
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NC: 2024:KHC:29078 CRL.P No. 6129 of 2024 cases where accused has not surrendered "after conviction" in addition to not filing an appeal against the conviction. As such, noticing earlier position of law laid down it was held by the Apex Court that in case of acquittal of a accused for same offence on same set of facts and on similar accusations, if considered, it would entile for acquittal of co-accused also.
18. In that view of the matter, present proceedings initiated against petitioner is liable to be quashed.
Hence, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii) Proceedings in C.C.No.1170/2007 pending on the file of Addl. Civil Judge & JMFC, Bantwal, in Cr.No.130/2006 registered by Bantwal Rural Police Station, is hereby quashed insofar petitioner is concerned.
(iii) In view of criminal petition having been disposed of on merits, I.A.No.1/2017 for stay does not survive for consideration and same stands rejected."
Therefore, the petitioner is entitled to succeed in the subject petition for the very same reasons rendered by the concerned Court and this Court (supra).
9. For the aforesaid reasons, the following:
ORDER
(i) The Criminal Petition is allowed.
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(i) Proceedings in S.C.No.485/2023 pending before the LII Additional City Civil and Sessions Judge, Bangalore (CCH-53), stands quashed qua the petitioner.
Sd/-
(M.NAGAPRASANNA) JUDGE SJK List No.: 1 Sl No.: 20