Karnataka High Court
The State Of Karnataka vs Fahad @ Nadutani @ Mohammed Koya on 20 February, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No.48 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL No.48 OF 2022
BETWEEN:
1. THE STATE OF KARNATAKA,
BY VIJAYANAGARA POLICE STATION,
REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560001.
...APPELLANT
(BY SRI V.S. HEGDE, STATE PUBLIC PROSECUTOR-II A/W
VIJAYAKUMARA MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
Digitally signed AND:
by MALATESH 1. FAHAD @ NADUTANI @ MOHAMMED KOYA,
KC
S/O ABDULLA HAI @ ABDULLA KOYA,
Location: High
Court of AGED ABOUT 30 YEARS,
Karnataka OCC:MASON,
R/O NO. K-314, F BLOCK,
NORTH NAZIMA BAGH KARACHI,
PAKISTAN,
AT PRESENT,
RESIDENT AT NO.186,
4TH CROSS, 2ND STAGE,
RAJIVNAGAR, UDAYAGIRI,
MYSURU-570019.
...RESPONDENT
(BY SRI. S. BALAKRISHNAN., ADVOCATE)
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CRL.A No.48 of 2022
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377
OF CR.PC BY THE STATE PRAYING TO MODIFY THE JUDGMENT
OF CONVICTION DATED 22.04.2021 AND ORDER ON QUANTUM
OF SENTENCE DATED 27.04.2021 PASSED BY THE PRINCIPAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN
SPL.C.C.No.106/2015 IN SO FAR AS IT RELATES TO IMPOSING
INADEQUATE SENTENCE ON THE RESPONDENT-ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 121 OF IPC AND
ENHANCE THE SENTENCE IMPOSED ON THE ACCUSED TO
MAXIMUM PUNISHMENT BY MODIFYING THE ORDER OF
CONVICTION WHEREIN THE ACCUSED HAS BEEN CONVICTED
ONLY UNDER SECTION 121-A AND CONVICT THE ACCUSED
UNDER SECTION 121 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The State has filed the present Criminal Appeal against the judgment of conviction dated 22.04.2021 and order of sentence dated 27.04.2021 passed in Spl.CC No.106/2015 on the file of the Principal City Civil and Sessions Judge, Bengaluru, convicting the accused for the offences punishable under Sections 120(B), 121 and 121(A), 332, 353, 465 and 471 of the Indian Penal Code, Sections 25(d), 25(1B)(a), (d) and (f) and Section 27(2) and 28 of the Arms Act, Section 14(A) of Foreigners Act, 1946 and Section 5 of the Foreigners Registration Act, 1939.
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2. The main grievance of Sri V.S.Hegde, learned SPP-II along with Sri Vijayakumar Majage, learned Addl.SPP for the appellant/State is that, the learned Sessions Judge has recorded a finding on issue No.1 to the effect that, the prosecution has proved beyond all reasonable doubt that accused No.1 along with other accused persons, conspired and waged war against Government of India and thus, committed an offence punishable under Sections 120-B, 121, 121A of the Indian Penal Code. However the learned Sessions Judge, while sentencing the respondent/accused, has not passed any sentence for the offence punishable under Section 121 of the Indian Penal Code, and thereby, the matter requires to be reconsidered, based on the material available on record.
3. Sri S.Balakrishnan, learned counsel for the respondent/ accused, contended that, the provisions of Section 196 of the Code of Criminal Procedure makes it clear that, no Court shall take congnizance of any offence punishable under Chapter VI or under Section 153A of the Indian Penal Code. Admittedly, Sections 121 and 121A comes under Chapter VI of the Indian Penal Code. Thereby, the very initiation of the prosecution is -4- CRL.A No.48 of 2022 vitiated and the said aspect has not been considered by the learned Sessions Judge.
4. In view of the aforesaid rival contentions urged by the learned SPP-II and the learned counsel for the respondent, and on careful perusal of the impugned judgment of conviction and order of sentence, it is undisputed fact that the learned Sessions Judge, framed the first point for consideration, as under:
i) Whether the prosecution proves beyond all reasonable doubt that accused No.1 along with accused No.2 being Pakistani Nationals and terrorists belonging to banned organisation by name Al-Badr along with other accused persons, hatched the conspiracy to gain entry into Indian from Pakistan, came to Mysuru and spread the activities of organisation to carry out the terrorist act in Mysuru and Bengaluru with an intention to wage war against Indian and to destruct the public properties and having collected money from foreign countries, so also got forged the documents with the help of other accused, thereby committed an offence punishable under Sections 120B, 121, 121A of the Indian Penal Code?-5- CRL.A No.48 of 2022
5. After considering the evidence on record, the learned Sessions Judge answered the aforesaid point in the affirmative holding that the prosecution proved beyond all reasonable doubt that the accused No.1 along with other accused persons, conspired and committed the offence punishable under Sections 120B, 121 and 121A of the Indian Penal Code. Though the learned Sessions Judge, convicted the respondent/accused for the offence punishable under Sections 120(B), 121 and 121(A), 332, 353, 465 and 471 of the Indian Penal Code, Section 25(d), 25(1B)(a), (d) and (f) and Section 27(2) and 28 of the Arms Act, Section 14(A) of Foreigners Act, 1946 and Section 5 of the Foreigners Registration Act, 1939, while passing the Order on sentence, has not passed any sentence for the offence punishable under Section 121 of the Indian Penal Code, nor whispered about the said provision.
6. Though several contentions are urged by the learned counsel for both the parties with regard to sanction under Section 196 of the Code of Criminal Procedure, the learned Sessions Judge has not recorded any findings on the said aspect.
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7. On that short ground alone, the matter requires to be remanded to the learned Sessions Judge directing to pass fresh orders on the basis of the evidence already on record without giving room for recording any further evidence.
8. In view of the above, we pass the following:
ORDER
(i) Criminal Appeal No.48/2022 filed by the State is allowed in part.
(ii) In the light of the above observations, the matter is remanded to the jurisdictional Sessions Court with a direction to pass fresh Order based on both oral and documentary evidence available on record, considering the rival contentions to be urged by the learned counsel for the parties, and also by considering the discussion made supra, pass Orders within a period of three months from the date of receipt of copy of this Order.-7- CRL.A No.48 of 2022
(iii) All contentions of the learned counsel for the parties are kept open.
(iv) It is made clear that we have not expressed any opinion on the merits of the case.
Sd/-
JUDGE Sd/-
JUDGE kcm