Karnataka High Court
Madhu @ Madhu Gowda vs The State Of Karnataka on 23 November, 2020
Author: K.Somashekar
Bench: K.Somashekar
R
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO. 3323 OF 2017
BETWEEN
Madhu @ Madhu Gowda
Son of Mahadevaiah
Aged about 32 years
"Sri Chamundeshwari Nilaya"
SLN Road, A.C. Extension
Kanakapura Town - 562 171
Ramanagara District.
... Petitioner
(By Sri. Akki Manjunath Gowda, Advocate)
AND
1. The State of Karnataka
By Girinagar Police
Bangalore City
Represented by its
Government Pleader
High Court Complex
Bangalore - 560 009.
2. Sri. Subramani K
PSI, Girinagar Police
Bangalore - 560 085.
... Respondents
(By Smt. Rashmi Jadhav, HCGP)
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, praying to quash the entire
proceedings against the petitioner / accused No.2 in
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Cr.No.263/2016 of Respondent No.1, Girinagar Police Station,
Bangalore for the offence punishable under Sections 489A,
489B, 489C, 489E, 420, 417 r/w 34 of IPC, now pending on
the file of 24th ACMM, Bangalore (Presently transferred to 56th
ACMM, Bangalore).
This Criminal Petition coming on for Admission, this day,
the court made the following:
ORDER
This matter though listed for admission, with the consent of the learned counsel for the petitioner and HCGP for the State, is taken up for final disposal.
2. The petitioner is arraigned as Accused No.2 in Cr.No.263/2016 registered by the Girinagar P.S., Bangalore for offences punishable under Sections 489C, 489E, 489B, 489A, 420, 417 read with Section 34 of IPC.
3. The petitioner Madhu @ Madhu Gowda is shown as absconding accused in C.C.No.28582/2016. But charge-sheet has been laid by the I.O. against Accused Nos.1 and 3 in Cr.No.263/2016 for the offences reflected in the FIR. Accused Nos.1 and 3 have been acquitted in the judgment rendered by the Trial Court in S.C.No.9/2017 dated 20.09.2018 whereby in that case the prosecution in all examined PW-1 to PW-5 and got marked several documents as Exhibits P1 to P11 inclusive :3: of getting marked MO1 to MO3. Based upon the evidence facilitated by the prosecution, the Trial Court has held acquittal of Accused No.1 Karthik and Accused No.3 Ashwin @ Dumma in respect of the offences punishable under Section 417, 420, 489(A), 489(B), 489(C), 489(E), 120B, 511 read with Section 34 of IPC. Therefore, the petitioner who is arraigned as Accused No.2 in this petition is seeking to quash the entire criminal proceedings initiated against him in Cr.No.263/2016 said to have been registered by Girinagar P.S. based upon the complaint filed by Subramani, PSI.
Consequently, perused the materials available on record inclusive of the acquittal judgment rendered by the Trial Court in S.C.No.9/2017 of Accused Nos.1 and 3. This acquittal judgment has been facilitated by the learned counsel for the petitioner for seeking to quash the entire criminal proceedings initiated against this petitioner / Accused No.2 in Cr.No.263/2016. This petitioner as well as Accused Nos.1 and 3 are in a similar footing in respect of the alleged crime.
4. It transpires in the suo moto complaint filed by the second respondent / Sri. Subramani, Police Sub-Inspector, Girinagara Police Station that on 14.10.2016 at around 17.00 hours when he was present in the police station, he got :4: credible information about some persons offering banned Brazil currency notes in exchange of Indian Currency notes near 1st Main Corner, Kannikaparameshwari Temple Road, Aden School, 2nd Phase, Girinagar, Bengaluru. Accordingly, the second respondent and his staff had gone near the said place and found that the miscreants said to be arraigned as accused Nos.1 to 3 in Cr.No.263/2016 holding 194 Brazil currency notes. The said currency notes were brought to India illegally and the said accused persons were in Sachidananda Ashrama. Thereafter, the accused Nos.1 and 3 were arrested along with the currency notes. As such, the Investigating Agency has seized the aforesaid Brazil currency notes apart from motor bike, mobile phone belonging to the culprits. However, based upon credible information and doubt raised upon culprits, the suo moto complaint came to be registered by the PSI of Girinagar P.S. in Cr.No.263/2016. Thereafter, the I.O. has taken up the case for investigation and laid a charge-sheet against Accused No.1 and 3 wherein they faced trial in S.C.No.9/2017 but the petitioner Madhu @ Madhu Gowda who is arraigned as Accused No.2 was treated as the absconding accused and the case was registered against him also for the alleged offences. But he obtained anticipatory bail in :5: Crl.P.No.8762/2016 vide order dated 16.12.2016. However, this petitioner is arraigned as Accused No.2. But the petitioner / Accused No.2 has filed this petition seeking to quash the entire proceedings initiated against him in Cr.No.263/2016 on the premise of an acquittal judgment rendered by the Trial Court in S.C.No.9/2017 relating to co-accused Nos.1 and 3.
5. The learned counsel for the petitioner appears through video conferencing. He contends that a suo moto complaint was registered by the PSI who got credible information about the culprits relating to the involvement of the offences narrated in the FIR said to be recorded by the Investigating Agency. But the petitioner who is arraigned as Accused No.2 does not have any knowledge or any information about the allegation made against him in the FIR. The respondent - police came in search of him to his house. But the Investigating Agency fixed the petitioner as Accused No.2 in Cr.No.263/2016 as there was suo moto complaint registered by the second respondent. However, there is no iota of material evidence against Respondent No.2 and he has been implicated in the case on the basis of the voluntary statement of accused no.1, which is inadmissible under the relevant provisions of the Indian Evidence Act, 1872. Further, this accused is a Social worker :6: who has garnered immense respect in the society. Because the voluntary statements of the co-accused, he has been implicated in the case without any evidence. Based upon that voluntary statement, the petitioner cannot be convicted without there being any evidence in that regard. However, after a full-fledged trial of Accused Nos.1 and 3, acquittal judgment has been rendered against the accused after going through the evidence and also material documents produced by the prosecution. However, the material secured by the I.O. in order to lay the charge-sheet against Accused Nos.1 and 3 are similar to the petitioner who is arraigned as Accused No.2. Also, the allegation made in the suo moto complaint appears to be set up to register a crime against the accused. Further, it is alleged that the complaint has been filed with a malafide intention with an ulterior motive for wrecking vengeance against the petitioner, though there is no prima facie material against the accused to face trial. On all these premise, the counsel for the petitioner seeks to quash the entire criminal proceedings initiated against the petitioner who is arraigned as Accused No.2 in Cr.No.263/2016 in view of the fact that co- accused Nos.1 and 3 in respect of the same crime have already been acquitted by the Trial Court.
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6. Learned HCGP for the State has taken me through the suo moto complaint and contends that on credible information about the role of culprits relating to possessing Brazil currency notes which was brought to India illegally, the crime came to be registered in Cr.No.263/2016. The said currency notes were brought to India illegally and the said accused persons were in Sachidananda Ashrama. However, since this petitioner / Accused No.2 was an absconding accused in Cr.No.263/2017, the Investigating Agency have laid the charge sheet against the accused nos 1 and 3. Merely because the case against Accused Nos.1 and 3 ended in acquittal, it cannot be a ground to seek interference for seeking quashing the entire proceedings initiated against this accused.
PW-1 to PW-5 in S.C.No.9/2017 have been subjected to examination and cross-examination and so also got marked several documents, mainly Exhibit P1 mahazar. Exhibit P2 is the spot mahazar said to be conducted by the I.O. Exhibit P4 is the suo moto complaint registered by PW-1 and Exhibit P-11 is the FIR said to be registered. MO-1 and MO-3 are mobile phones of accused which were seized and MO-2 is the 194 Brazil currency notes which were seized from Accused Nos.1 and 3. The present petitioner cannot rely on these material for :8: seeking quashing the entire criminal proceedings initiated against the accused. She contends that the Trial Court has to proceed against this accused in accordance with law and independently assess the material documents regarding the allegations made against the present petitioner / accused and then to lay a charge-sheet against this accused. Acquittal of the co-accused cannot be a ground for acquittal of the present accused. On all these grounds, learned HCGP seeks for dismissal of this petition.
7. It is in this context, the allegations made in the complaint filed by the complainant require to be considered. On receipt of credible information, the PSI of Girinagar PS had formed a team consisting of Panch witnesses and rushed to the scene of crime and asserted that the culprits said to be arraigned as accused were found holding Brazil currency notes, which was brought to India and the said persons were in Sachindananda Ashram. Subsequent to confirming that they were in possession of Brazil currency notes, the said notes were seized and so also their motor bike and mobiles were seized. Subsequently, based upon credible information and doubt about the involvement of the accused, the PSI of Girinagar P.S registered a suo moto complaint against the :9: accused in Cr.No.263/2016 for offences under the IPC. The incident took place on 14.10.2016 at around 5.00 p.m. wherein Accused Nos.1 to 3 and also absconding accused Madhu Gowda were offering banned Brazil currency notes in exchange of Indian currency notes in a sum of Rs.10 lakhs near 1st Main Corner, Kannikaparameshwari Temple Road, Aden School, 2nd Phase, Girinagar, Bangalore. The aforesaid Brazil currency notes were in possession of the culprits. Therefore, suo moto complaint came to be registered by the Girinagar P.S. in Cr.No.263/2016 and then proceeded with the case for investigation and laid a charge-sheet against Accused Nos.1 to
3. Accused No.2 who is the petitioner before this court has been shown as an absconding accused. But PW-3 said to have been examined in S.C.No.9/2017 has stated before the Trial Court in respect of Accused Nos.1 and 3, that he received credible information about the culprits who were offering banned Brazil currency notes. Therefore, he formed a team consisting of several members and also panch witnesses and went to the scene of crime, since he got credible information. Then, he took up the raid and apprehended Accused Nos.1 and 3 and seized two bundle of Brazil currency notes in all 194 : 10 : currency notes under Exhibit P2 in the presence of panch witnesses.
PW-4 / R. Narayana has stated in his evidence that on 2.12.2016, he was deputed for the purpose of investigation relating to getting credible information about co-accused Nos.1 and 3. Accordingly, PW-4 was deputed to trace Accused No.2 and he went to Uttarahalli, Subramanyapura and Kanakapura Road, but he could not trace Accused No.2, namely Madhu Gowda. Then, he submitted a report as per Exhibit P3.
It is relevant to refer to PW5 Police Inspector. The entire investigation has been done by him relating to co-accused Nos.1 and 3. He has stated in his evidence that around 8.00 p.m. in the night wherein he was present in the police station, that he got credible information about the culprits who were alleged to be present in the scene of crime that they were involved in activities of exchange of Brazil currency notes. Accordingly, he formed a team consisting of staff members and so also panch witnesses and swung into operation by going to the scene of crime and had confirmed the credible information received. Accordingly, he apprehended co-accused No.1 Karthik and recorded his voluntary statement. Then he seized his motor bike and mobile phone on 15.10.2016. However, co- : 11 : accused Nos.1 and 3 have been apprehended by the Investigating Agency and then proceeded with the case for investigation in the presence of PW-1 and PW-2 namely Lohith and Ganesh who were said to be secured as Panch witnesses and held panchanama in their presence. But they have been subjected to examination in S.C.No.9/2017. They have specifically stated that the Investigating Agency obtained their signature on the document but they did not know any other thing except their signatures found place. And also specifically stated that they did not know which materials were seized in their presence by drawing the mahazar. But these witnesses were completely treated as hostile as they did not withstand the contents of the mahazar said to be conducted by the Investigating Agency.
8. However, the I.O. who is examined as PW-5 and who is material witness on the part of the prosecution has been examined relating to seizure of Brazil currency notes relating to exchange of those currency notes. But the court had made an observation in the acquittal judgment rendered in respect of the co-accused Nos.1 and 3 in S.C.No.9/2017 that there is no material on record to show that any other general public were being persuaded by the accused to exchange the Brazil : 12 : currency notes to Indian currency notes. There is also no material on record to show that the decoy had carried any Indian currency notes with him to the spot of the alleged incident for the purpose of exchange of the alleged Brazil currency notes which is marked as MO-2.
Hence, the prosecution has miserably failed to establish the guilt of the co-accused nos.1 and 3 though the prosecution have subjected to examination PW-1 to PW-5 and several documents P1 to P11 inclusive of marking MO1 to MO3. Based upon the evidence and also evaluating the entire evidence, the Trial Court had come to the conclusion that the prosecution has miserably failed to prove the charges levelled against Accused Nos.1 and 3. Consequently, the benefit of doubt had been extended to those Accused Nos.1 and 3 and both of them were acquitted of the offences levelled against them.
9. In this regard, it is relevant to refer to a judgment rendered by the Apex Court in the case of CENTRAL BUREAU OF INVESTIGATION vs. AKHILESH SINGH (AIR 2005 SC
268), wherein it was held that 'quashing of the charge and discharge of the accused when the main accused who is alleged to have hatched a conspiracy and who had motive to kill the : 13 : deceased were already discharged and that matter had attained finality, the discharge of the co-accused by the High Court by holding no purpose would be served in further proceeding with the case against co-accused held proper.'
10. It is further relevant to refer to the judgment in the case of MUNEER AHMED QURESHI VS. STATE OF KARNATAKA (2002 (1) KCCR 1), wherein it is 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 PW-1 denies to enter incident or the role of the accused. This reasoning of acquittal would also definitely 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 the Trial Court. In such circumstances, it would 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 who a split up charge sheet was filed was quashed."
: 14 :The present accused is also in a similar footing as that of the offences lugged against the accused Nos.1 and 2. Though split up charge-sheet has been laid against Accused No.2 by the I.O., it is nothing but a futile exercise and an empty formality to proceed with the case of the accused to face trial. As could be seen from the evidence of those witnesses subjected to examination in S.C.No.9/2017 which is stated supra, there is no semblance of any evidence to give complicity to the case of the petitioner / accused No.2 in the aforesaid crime, even in future to lay a split up charge sheet and also permit to prosecute the case against him because, it is inseparable and also indivisible in nature.
Therefore, the Trial Court also did not venture upon the discussion in detail. The evidence of those witnesses in S.C.No.9/2017 as well as the material collected by the I.O. in respect of the co-accused Nos.1 and 3 is in relation to the present petitioner who is arraigned as Accused No.2 relating to the offences lugged against him. However, the Trial Court in S.C.No.9/2017 in respect of Accused Nos.1 and 3, after evaluating the entire evidence inclusive of the material documents which were got marked as MO-1 to MO-3, has found that the prosecution has miserably failed to prove the : 15 : guilt of the accused as this was the observation made and also benefit of doubt extended to the co-accused Nos.1 and 3 and lastly held acquittal of Accused Nos.1 and 3. Therefore, the petitioner / accused no.2 also stands on the same footing as that of Accused Nos.1 and 3. Even though permission has been accorded to the prosecution to prove the case against this Accused No.2, the fate is one and the same which is nothing but a futile exercise. Therefore, precious time of the court need not be wasted in sending accused No.2 for trial. Hence, power under Section 482 Cr.P.C., requires to be exercised in order to avoid abuse of process of law and also to meet the ends of justice. If not, certainly there shall be miscarriage of justice. Accordingly, the prayer seeking to quash the entire criminal proceedings instituted against Accused No.2 in Cr.No.263/2014 needs to be accorded. Therefore, I am of the considered opinion that I do not find any strong reason to hold that the petitioner who is arraigned as Accused No.2 has to be tried once against for the same offences on the basis of the material evidence secured by the Investigating Agency to lay the charge-sheet against co-accused nos.1 and 3. Accused No.1 though has given voluntary statement before the Investigating Agency. But the statement ought to have been : 16 : given by way of evidence under the relevant provisions of Sections 24 and 25 of the Indian Evidence Act inclusive of Section 27 of the Indian Evidence Act. Therefore, in terms of the aforesaid reasons and findings, I am of the considered opinion that the present petitioner stands on a similar footing as that of the co-accused nos.1 and 3 who have been acquitted in S.C.No.9/2017. The benefit of that acquittal judgment rendered against co-accused shall extend to this petitioner / accused No.2 as well.
11. Under these circumstances and also in view of the law laid down by the Apex Court, I am of the considered opinion that the materials available on record before the Sessions Court relating to acquittal of the co-accused nos.1 and 3 in S.C.No.9/2017 and relating to the present petitioner who is arraigned as Accused No.2 in Cr.No.263/2016 are inseparable and indivisible in nature. Therefore, the same benefit has to be extended to the present petitioner / Accused No.2 as well though he was not available for trial.
Under the aforesaid circumstances and so also in the totality of the circumstances relating to the materials secured by the I.O. in order to lay the charge-sheet against the accused, I am of the firm opinion that the petitioner has made out a : 17 : ground for quashing the entire criminal proceedings initiated against him in Cr.No.263/2016 of Girinagar Police Station, Bangalore City. Therefore, there need not be any trial against the petitioner / accused no.2 in the aforesaid crime. Accordingly, I proceed to pass the following:
ORDER The petition filed by the petitioner - accused no.2 under Section 482 Cr.P.C. is hereby allowed. Consequently, all further proceedings to be initiated against the petitioner / accused No.2 in Cr.No.263/2016 by Girinagar P.S., Bangalore City, is hereby quashed.
In consequence upon disposal of the main petition, I.A.No.1/2017 is dismissed as it does not survive for consideration.
Sd/-
JUDGE KS