Karnataka High Court
Abid @ Abid Pasha vs The State Of Karnataka on 11 January, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
WRIT PETITION No.1560/2018 (GM-RES)
BETWEEN
ABID @ ABID PASHA
S/O LATE IQBAL PASHA,
AGED ABOUT 35 YEARS,
R/AT NO.16/24, ASPATRE MOHALLA,
HUNSUR TOWN,
HUNSUR TALUK,
MYSURU DISTRICT-571107. ... PETITIONER
(BY SRI. B.LETHIF, ADV.)
AND
THE STATE OF KARNATAKA
BY POLICE SUB-INSPECTOR,
HUNSUR TOWN POLICE STATION,
MYSURU DISTRICT,
REP. BY THE S.P.P.,
HIGH COURT BUILDING,
BENGALURU-560001. ... RESPONDENT
(BY SRI. S.RACHAIAH, HCGP.)
THIS W.P IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CRIMINAL PROCEDURE CODE
PRAYING TO QUASH THE ENTIRE PROCEEDINGS
AGAINST THE PETITIONER IN S.C.NO.192/2017 (CRIME
NO.121/2010) OF HUNSUR POLICE STATION, MYSURU
DISTRICT, ON THE FILE OF THE VIII ADDL. DISTRICT &
2
SESSIONS COURT AT MYSURU SITTING AT HUNSUR,
WHICH IS PRODUCED AT ANNEXURE-F ETC.
THIS WP COMING ON FOR 'PRELIMINARY
HEARING' THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioner.
2. Learned High Court Govt. Pleader takes notice for the respondent. Heard the learned High Court Govt. Pleader.
3. Perused the records.
4. The petitioner is arrayed as Accused No.3 in S.C.No.304/2011 before the VIII Addl. District and Sessions Judge, Mysuru, sitting at Hunsur, and S.C.No.179/2012, arising out of C.C.No.268/2011 on the file of Senior Civil Judge and JMFC, Hunsur. On committal of the case to the Court of Sessions, Mysuru, the case was split up against Accused Nos.3 and 4 by registering a separate C.C.No.322/2011. Due to abscondance of accused No.3, a separate criminal case has been registered against him in C.C.No.190/2012 by 3 the Court of Sessions, Mysuru. The records disclose that the other accused persons 1, 2 and 4 were tried by the learned Sessions Judge, i.e., VIII Additional District and Sessions Judge, Mysore in S.C.No.304/2011 and 179/2012. Vide Judgment dated 23rd July 2015, the Trial Court has acquitted the co-accused Nos.1, 2 and 4 exercising the powers under Section 232 of Cr.P.C. The petitioner was absconding. As such, he was not tried along with the other accused persons.
5. The petitioner has sought for quashing of the said separate proceedings registered against him. On careful perusal of the factual aspects of this case, Accused No.1 by name Ghouse Khan had taken loan of Rs.15,000/-and Rs.10,000/- from one Thyagaraj Pillai during 2006. The said Thyagaraj Pillai used to visit the house of Accused No.1 in demand of the said loan. In that context, Accused No.1 became very close and intimate to the sister of Accused No.1. As Accused No.1 did not like this close intimacy of the deceased Thyagaraj Pillai with his sister, he assaulted him on 28.03.2007 in the night along with Accused Nos.2 to 4. 4 Since the accused are close to the deceased, he has not taken steps to prosecute them at that time. Again, on 21.05.2010, the Accused Nos.1 to 4 joined hands with each other with an intention to do away with the life of said Thyagaraj Pillai. On 21.05.2010, in the night hours at 11.00 p.m., when deceased Thyagaraj Pillai and his friend Thangavelu, after finishing their meals at Annapurna Hotel at B.M.Road, when they were proceeding towards their home, at that time, Accused Nos.2 and 4, in furtherance of their common intention, have assaulted said Thyagaraj Pillai with iron rods on his head, neck, forehead, shoulder, chest and hands by causing grievous injuries, who succumbed to the injuries later. The said Thangavelu, friend of the deceased, filed a complaint and the police have investigated the matter and laid the charge-sheet against Accused Nos.1 to 4.
6. On the above said allegations, the prosecution led evidence in S.C.No.304/2011 and 179/2012, examined as many as 28 witnesses-P.Ws.1 to 28 and got marked Exs.P.1 to P.31 and also Ex.D.1, and 5 material objects M.Os 1 to 11. It is worth to note here the Trial Court has also framed points for consideration including the petitioner herein to the effect that whether the prosecution proves beyond reasonable doubt that, on the date, time and place noted in the charge-sheet, Accused Nos.1, 2 and 4 along with Accused No.3, in furtherance of their common intention to murder Thyagaraj Pillai, assaulted him with M.Os 5 and 6 and caused the death of said Thyagaraj Pillai. Answering the said point for consideration in the negative, the Trial Court in fact also gave finding with regard to the participation of Accused No.3 along with other accused.
7. Looking to the above said facts and circumstances, the allegations made against this petitioner and the other co-accused who are already acquitted, are one and the same and they are inseparable and indivisible in nature. When such being the case, when the co-accused have already been acquitted and the State has not preferred any appeal against the above said Judgments, there is no legal impediment to quash the proceedings against this 6 petitioner, giving benefit of the Judgment already rendered by the Trial Court so far as the other co- accused are concerned.
8. In this background, it is worth to refer to an unreported the decision of this Court in SAIBANNA vs. STATE OF KARNATAKA IN CRIMINAL PETITION NO.200008/2015 DATED 23.01.2015 by referring the decision of Hon'ble Apex Court in ILR 2015 KAR Page 970 [HYDER Vs. STATE OF KARNATAKA], AIR 2005 SCC 268 [CBI VS. AKHILESH SINGH] and 2002(1) KCCR 1 [MUNEER AHMED QURESHI, MUNEER @ GAUN MUNEER VS. STATE OF KARNATAKA BY KUMARSWAMY LAYOUT POLICE), in order to ascertain whether this Court can quash the proceedings against the co-accused, when the other accused have already been acquitted. In this regard, in a decision reported in Criminal Petition No.4796/2017 dated 05.07.2017, this Court has extensively relied upon various decisions of the Hon'ble Supreme Court and this Court, particularly in the decisions reported in (2001) 3 Kant.L.J. 551 [MOHAMMED ILIAS Vs. 7 STATE OF KARNATAKA] and ILR 2005 KAR. 1822 [THE STATE OF KARNATAKA Vs. K.C. NARASEGOWDA]. Therefore, before adverting to the factual aspects of this case, it is worth to refer the decision in the case of Akhilesh Singh (supra), wherein, it was held that:
"Quashing of charge and discharge of the accused when an accused who alleged to have hatched conspiracy and who had motive to kill the deceased were already discharged, that matter had attained finality, the discharge of co-accused by High Court by holding that no purpose would be served in further proceeding with case against co- accused held proper."
In Muneer Ahmed Qureshi's case (supra), this Court has held that: -
"Entire case of the prosecution as against six accused is practically inseparable and individual one and especially when the Judgment of acquittal is passed, when P.W.1 denies the entire incident or the role of the accused. This reasoning of acquittal would also definitely 8 enure to the petitioner. Even if the petitioner is tried there cannot be any other material other than what is already produced and considered by Trial Court. In such circumstances it will be an exercise in futility to make the petitioner to undergo the ordeal of crime, and then to be acquitted.
Holding that the proceeding
against the accused person who was
absconding and subsequently against whom a split up charge sheet was filed was quashed."
9. Therefore, in the above said proceeding, it is made clear that the proceeding against the accused person who was absconding and subsequently the case lodged against him under split-up charge-sheet is also entitled for the benefit of acquittal Judgment rendered by the competent Court so far as the other cases are concerned.
10. Therefore, I have no hesitation to quash the proceedings as sought for against the petitioner. As no useful purpose would be served if the petitioner is 9 directed to undergo the ordeal of trial, it would be a waste of judicious time. Hence, the following order:
The petition is allowed. Consequently, the case pending before the VIII Addl. District and Sessions Court, sitting at Hunsur in S.C.No.304/2011 and S.C.No.179/2012 arising out of Crime No.121/2010 and all further proceedings therein, are hereby quashed.
If the petitioner is in custody, the petitioner/accused shall be released forthwith if he is not required in any other case.
Sd/-
JUDGE BNV CT-HR