Karnataka High Court
Kaisarkhan D.P., vs State By Sho on 1 February, 2019
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY 2019
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL REVISION PETITION No. 937 OF 2018
BETWEEN:
Kaisarkhan D.P., 57 years,
S/o. Peerkhan,
No.1034, Government Hospital
Quarters Road, Jagalur,
Davanagere. ...Petitioner
(By Smt. M.R. Hiremathad, Advocate)
AND
State by SHO,
Karkala P.S.,
Udupi District. ...Respondent
(By Sri. S.T. Naik, HCGP)
This criminal revision petition filed under Section
397 r/w 401 of Cr.P.C. praying that this Hon'ble Court
may be pleased to set aside the order dated 28.06.2018
passed in S.C. No. 30/2017 by the Principal District and
Sessions Judge, Udupi by allowing the application filed by
the petitioner under Section 227 of Cr.P.C.
This criminal revision petition coming on for
Admission this day, the Court made the following:
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ORDER
The present petition has been filed by the petitioner/accused-4 being aggrieved by the order passed by the Principal District and Sessions Judge, Udupi in S.C. No.30/2018 dated 28.06.2018 rejecting the application filed under Section 227 of Cr.P.C. to discharge the petitioner from the case.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent State.
3. The gist of the complaint is that the complainant filed a missing complaint on her husband on 02.11.2016. Thereafter during the course of investigation the dead body was found and the complainant identified the said dead body as of her husband's by seeing the teeth and thereafter during the course of investigation the accused persons have been apprehended. It is the case of the prosecution that one Mansur Ali @ Khaja Mohiddin brought accused-3 to the petitioner for getting him a used 3 lorry tipper on 11.11.2016 and upon assurance of the petitioner, accused No.3 had given an advance a sum of Rs. 2,00,000/- to the petitioner. But the petitioner was unable to get a tipper lorry in the agreed period. Accused - 3 put pressure on the petitioner and Mansur Ali for refund of the money. Then the petitioner said that if Mohammad Fayaz (A-3) brings any owner of the lorry tipper who wants to sell it, he would advance him Rs.2,00,000/- and by buying the same he would sell it and pay his amount. It is further alleged that accused -3 telephoned the petitioner and Mansur Ali and informed that he has found a party in Karkala who wants to sell his tipper lorry and asked them to come to Karkala with advance money, which has been paid on 11.11.2016. Accordingly, the present petitioner/accused and Mansur Ali went and met accused-3 and then stayed that night there itself.
4. On 12.11.2016 petitioner/accused and Mansur Ali were taken to the house of accused-1 and 2 and accused-3 was also there. They made enquiries about the 4 lorry tipper and went to see the lorry tipper which was for sale. At that time accused 1 and 2 said that the tipper was on line and asked them to come next day. It is further alleged that on 13.11.2016, accused-3 took the petitioner and Mansur Ali to the house of accused -1 and 2 and when they asked about money petitioner/accused said that money is ready and all of a sudden accused -1, 2, 3 along with one Vinod Gowda attacked on the petitioner and the deceased Mansur Ali and assaulted with club. When they tried to escape by running outside the house, Mansur Ali fell down in front of the house and the petitioner ran away from there. At that time, the accused persons assaulted Mansur Ali by taking inside the house and thereby caused the death of Mansur Ali.
5. On the basis of the complaint, after investigation, charge sheet has been filed. Thereafter, the present accused No.4 filed an application under Section 227 of Cr.P.C. and after hearing the same the court below has come to the conclusion that there is a material against 5 the petitioner/accused -4 and as such the application came to be rejected. Assailing the same he is before this Court.
6. It is the submission of the learned counsel for the petitioner/accused that he is not involved in the alleged crime and the other grievance of the charge sheet materials are not attracted. The only allegation which has been made as against petitioner/accused-4 is under Section 202 of Indian Penal Code that he has not given any information about the alleged offence. He further submitted that until and unless the main accused persons are tried, the question of trying the petitioner/accused for the offence under Section 202 of IPC does not arise at all. He further submitted that in order to establish and convict the accused under Section 202 of IPC, the prosecution has to prove that the accused has the knowledge or reason to believe that some offence had been committed. The accused had intentionally omitted to give information in respect of that offence and the accused was legally bound 6 to give that information. He further submitted that those ingredients were not satisfied, even then the Court below has not discharged the accused. He further submitted that the offence under Section 202 of IPC cannot be tried along with the other main provisions. In order to substantiate his said submission he relied upon the decision of Chattisgarh High Court in the case of K.P. Patade Vs. Supreme Court of India reported in Laws (CHH) 2016 51. He further submitted that until and unless the said main offences are tried, the accused cannot be tried. So he further submitted that the accused No.4 cannot be tried jointly in order to establish the offence under Section 202 of IPC. On these grounds he prayed to allow the petition and discharge the accused/petitioner.
7. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the accused/petitioner was present at the time, when the alleged incident has taken place and he was also a member of the said crime and the prosecution paper 7 clearly goes to show that the accused/petitioner was also present when the alleged incident has taken place. He however, submitted that though there no information, over-tact but the accused has been charge sheeted under Section 202 of IPC and it has been considered and appreciated only after the evidences. On these grounds he prayed for dismissal of the petition.
8. I have gone through the submissions made by the learned counsel for both the parties and I have also perused their records. As could be seen from the records the accused is charge sheeted under Section 202 of IPC. It is true that in order to prove the case under Section 202 of IPC and to sustain the conviction, it is necessary for the prosecution to prove (1) that the accused had knowledge or reason to believe that some offence had been committed, (2) that the accused had intentionally omitted to give information respecting that offence and (3) that the accused was legally bound to give that information. 8
9. I have gone through the entire material placed on record in this behalf. But by going through the materials, at this juncture, it cannot be held that the ingredients of the offence under Section 202 of IPC are not forthcoming. It is determined only when the main offence is established and thereafter the question arises whether the accused was having the knowledge or the reason to believe that some offence had been committed and thereafter he has intentionally omitted to give information. Now at this juncture, it cannot be held that there is no material as against the accused No.4/petitioner.
10. It has been observed at this juncture, that the offence under Section 202 of IPC cannot be tried along with the main offence, as it does not fall under Section 223 of Cr.P.C. or not in other provision thereon to try jointly. But on the basis of the said fact, the accused is not entitled to be discharged from the charges leveled against him. At this juncture, I want to rely upon the 9 decision of Hon'ble Apex Court in the case of Harishchandrasing Sajjansing Rathod and another Vs. The State of Gujarat reported in AIR 1979 page 1232 at para No.4 that it has been observed as under:
"4. To sustain a conviction under the above quoted S.202 of the Penal Code, it is necessary for the prosecution to prove (1) that the accused had knowledge or reason to believe that some offence had been committed, (2) that the accused had intentionally omitted to give information respecting that offence and (3) that the accused was legally bound to give that information."
11. In the above said paragraph it is observed that in a prosecution under Section 202 of IPC, it is necessary for the prosecution to establish the main offence before arguing a person is liable under the said Section. It goes to show that, first the main offences are to be tried as against the remaining accused persons and thereafter, only if the main offences are proved, then the present accused No.4/petitioner can be tried. Keeping in view the above said prepositions of law laid down by the Hon'ble 10 Apex Court, the application which has been filed under Section 227 is not sustainable. Further when the offence under Section 202 has to be tried separately. In that light, the trial court is directed to try the offences under Section 202 of IPC in so far as the present petitioner/accused No.4 is concerned separately.
With the above observations, the present revision petition is disposed of.
Sd/-
JUDGE BVK