Karnataka High Court
Roshan Ansil Gomes vs State Of Karnataka on 12 June, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:19934
CRL.P No. 7407 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 7407 OF 2022
BETWEEN:
ROSHAN ANSIL GOMES
S/O SYLVESTER GOMES,
AGED ABOUT 35 YEARS,
RESIDING AT ANSIL VILLA,
PAKKALADKA, BAJAL POST,
MANGALORE
DAKSHINA KANNADA DISTRICT - 575 014.
...PETITIONER
(BY SRI. NISHIT KUMAR SHETTY, ADV.)
AND:
1. STATE OF KARNATAKA
BY STATION HOUSE OFFICER,
MANGALORE NORTH POLICE STATION,
Digitally signed by REPRESENTED BY
PADMAVATHI B K
STATE PUBLIC PROSECUTOR,
Location: HIGH HIGH COURT OF KARNATAKA,
COURT OF
KARNATAKA BENGALURU - 560 001.
2. ABDUL BASHID M. R.,
S/O RAJAK,
RESIDING AT MUZARAK MANJIL,
NEAR KANJIGAD MASZID,
KASARAGOD TALUK AND
DISTRICT - 670 511.
...RESPONDENTS
(BY SMT. K.P.YASHODA, HCGP FOR R-1)
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NC: 2023:KHC:19934
CRL.P No. 7407 of 2022
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS
AGAINST THE PETITIONER IN C.C.NO.9/2021
(CR.NO.122/2016 OF MANGALORE NORTH POLICE STATION)
PENDING ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE
AND CJM, MANGALORE FOR THE OFFENCE P/U/S 341, 504,
323, 326 R/W 34 OF IPC.
THIS CRIMINAL PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.9/2021 registered for offences punishable under Sections 341, 504, 323, 326 read with Section 34 of IPC.
2. Heard Sri.Nishit Kumar Shetty, learned counsel appearing for the petitioner and Smt.K.P.Yashoda, the learned High Court Government Pleader appearing for respondent No.1.
3. Facts in brief that are germane for a consideration of the issue in the lis are as follows:
On 30.07.2016, a complaint comes to be registered on the allegation that the petitioner along with other accused have assaulted the complainant. The complaint then becomes a crime in Crime No.122/2016 for the afore-quoted offences. The -3- NC: 2023:KHC:19934 CRL.P No. 7407 of 2022 petitioner was arrayed as accused No.2. The petitioner was not available for trial as he was absconding. The Court registers a split charge sheet against the petitioner on 09.12.2020 in C.C.No.9/2021. The trial in C.C.No.449/2016 which arose out of Crime No.122/2016 continued and the main accused i.e., accused No.1 was acquitted in terms of the order of the concerned Court dated 15.11.2021. The said order of acquittal has become final. Since the petitioner was not available for trial and a split charge sheet had been issued against him in C.C.No.9/2021, the trial against him is now continued. The continuation of the trial is what drives the petitioner to this court in the subject petition.
4. The learned counsel for petitioner would contend that the allegation against accused No.1 and 2 are the same since the accused No.1 had been acquitted, the benefit of acquittal would flow to petitioner - accused No.2 as well. He would contend that for a bona fide reasons he was not available for trial.
5. On the other hand, the learned High Court Government Pleader would however refute the submissions and -4- NC: 2023:KHC:19934 CRL.P No. 7407 of 2022 contend that as the other accused have come out clean in the trial, the petitioner also has to come out clean and this Court would not exercise its jurisdiction under Section 482 of Cr.P.C., and obliterate those proceedings against the petitioner.
6. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the material on record.
7. The afore-narrated facts are not in dispute. The allegation against the petitioners - accused Nos.2 and 1 are the same. The accused No.1 is acquitted by the concerned Court on the following reasons:
" 08.Point No.1 to 4:- These points require common discussions and observations. Therefore these points taken together for the same purpose to avoid repetition
09. The prosecution to prove the charges levelled against the accused, got issued summons to C.W.-1 to C.W.3. Since they are not appeared before the court, this court has ordered to issue proclamation to C.W.1 to C.W.3 and the same was executed.
10. The C.W.-1 being the complainant and C.W.- 2 and C.W.-3 being the eye witnesses in this case are -5- NC: 2023:KHC:19934 CRL.P No. 7407 of 2022 not secured, despite of all modes of summons are exhausted. In view of C.W.-1 to C.W.-3, evidence not available, they being material witnesses, no purpose will be served by examining other charge sheet witnesses. End result would be an acquittal. No incriminating evidence available. Hence, prayer of Sri.APP rejected to examine other charge sheet witnesses on the ground that, it will not serve any purpose. There is no incriminating evidence against Accused No.1. The recording of statement of accused u/s 313 Cr.P.C. is dispensed with. Hence, the prosecution has failed to prove the guilt against the accused No.1 beyond reasonable doubt. In view of it, I answer point No.1 to 4 in the Negative.
11. Point No.5:- In view of the foregoing observations and discussions, I proceed to pass the following:
ORDER Acting under Section 248(1) of Cr.P.C., the Accused No.1 is acquitted for the offence punishable u/s 341, 504, 323, 326 r/w 34 of IPC.
The bail bond of accused and surety bond executed at the time of his appearance stands cancelled.
Order dated 14-09-2016 for interim custody of vehicle, is hereby made absolute."-6-
NC: 2023:KHC:19934 CRL.P No. 7407 of 2022
8. If the reasons so rendered to acquit accused No.1, it would enure to the benefit of the petitioner - accused No.2.
Therefore, continuation of the proceedings against the petitioner who will eventually being acquittal of the charges will be a waste of judicial time.
9. 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-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:-7-
NC: 2023:KHC:19934 CRL.P No. 7407 of 2022 "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:
"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 -8- NC: 2023:KHC:19934 CRL.P No. 7407 of 2022 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 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-
-9-NC: 2023:KHC:19934 CRL.P No. 7407 of 2022 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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NC: 2023:KHC:19934 CRL.P No. 7407 of 2022
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
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NC: 2023:KHC:19934 CRL.P No. 7407 of 2022 (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 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.
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."
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NC: 2023:KHC:19934 CRL.P No. 7407 of 2022
10. Therefore, in the light of the aforesaid facts and the acquittal of accused No.1 and in the light of the judgment rendered by the Co-ordinate Bench of this Court (Supra), I deem it appropriate to terminate the proceedings against the petitioner - accused No.2 as well accepting the subject petition filed under Section 482 of the Cr.P.C.
11. For the afore-said reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The proceedings against the petitioner in C.C.No.9/2021 (Crime No.122/2016) pending on the file of the II Additional Senior Civil Judge and CJM, Mangalore, stand quashed.
(iv) The observations made in the course of this order would not influence or bind any trial against any other accused.
Sd/-
JUDGE KG List No.: 1 Sl No.: 5 CT:SS