Karnataka High Court
M Raghu S/O B. Mallesh vs The State Of Karnataka on 17 December, 2020
Author: K.Somashekar
Bench: K.Somashekar
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17th DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL PETITION No.8097/2016
BETWEEN:
M.Raghu S/o B.Mallesh,
Aged about 32 years,
R/o No.47, 10th Cross,
Near Katraguppe Water Tank,
Banashankari 3rd Stage,
Bengaluru-560085. ...Petitioner
(By Ms.Keerthana, Advocate for
Sri.K.V.Thimmaiah, Advocate for petitioner)
AND:
1. The State of Karnataka,
By the police of
Malleshwaram Police Station,
Bengaluru-560003.
Rep. by the SPP,
High Court of Karnataka,
Bengaluru-560001.
2. Anand Kaburi,
Police Inspector,
F&M Squad, City Crime Branch,
Bengaluru-560053. ... Respondents
(By Smt.Rashmi Jadhav, HCGP for R1;
R2 served, unrepresented)
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This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to quash entire proceedings in
C.C.No.14343/2019 on the file of XXXII Addl. Chief
Metropolitan Magistrate, Bangalore (Cr.No.268/2015 of
Malleshwaram Police Station, Bangalore) for the
offences punishable under Sections 465, 471, 420,
120(B), 511 read with 34 of IPC.
This Criminal Petition coming on for Hearing, this
day, the court made the following:
ORDER
In this petition, the petitioner who is arraigned as accused No.4 in C.C.No.14343/2019 arose in Cr.No.268/2015 registered by Malleshwaram police station pending on the file of VII Addl. Chief Metropolitan Magistrate, Bangalore for offences punishable under Sections 465, 471, 420, 120(B), 511 read with 34 of IPC sought for quashing the entire criminal proceedings initiated against him in the aforesaid case.
2. Ms.Keerthana for Sri.K.V.Thimmaiah, learned counsel for the petitioner and so also Smt. Rashmi 3 Jadhav, learned HCGP for 1st respondent are present before the Court physically whereas, the 2nd respondent is served but unrepresented.
3. Though, this matter is listed for admission, with the consent of both the parties the matter is taken up for final disposal.
4. Heard the arguments and perused the entire materials placed on record.
5. It is transpired in the case of the prosecution that on 04.09.2015 at about10.00 am, the respondent No.2 received credible information from DCP F&M Squad that one Anjith Kumar from Suvarna TV channel had informed him that three persons at Coffee Day centre, Sampige Road, Malleshwaram were indulging in conversion of black money into white money whereupon 20% of the amount would be distributed amongst middlemen, however, they were insisting that prior to dealing a sum of Rs.2,00,00,000/- was to be deposited 4 in the account mentioned by them. The conduct of the said persons were suspicious and were doing it for the purpose of cheating general public. Accordingly, DCP orally instructed respondent police to ascertain the fact and take legal action. Based on the same, the respondent police conducted raid along with his staff and securing panchas at Coffee Day, Malleshwaram between 12.00 pm to 5.30 pm and apprehended the accused persons including the petitioner and also seized item Nos.1 to 13 by drawing the seizure mahazar.
6. It is further transpired in the investigation materials that aforesaid accused persons along with absconding accused persons namely Ashwin and Sheshadri were cheating public through agents by assuring to convert black money into white money and to facilitate the same, they had created fake documents. The five accused including this petitioner were taken into custody while accused Ashwin and Sheshadri were 5 absconding. Accordingly, the 2nd respondent sought 1st respondent to register FIR against the said persons for the offences punishable under Sections 420, 465, 471 read with section 120-B of IPC. Accordingly, 1st respondent registered a case in Cr.No. 268/2015 against the accused and thereafter filed charge sheet against the accused Nos.2 to 6 in C.C.No.14343/2019 for the offences punishable under Sections 465, 471, 420, 120(B), 511 read with 34 of IPC.
7. The learned counsel for the petitioner during the course of his argument has taken me through the allegations made in the complaint and so also reflected in the FIR said to have been recorded by the 2nd respondent. Learned counsel contended that the petitioner who is arraigned as accused No.4 is an innocent of the alleged crime and there is no overt-act attributed against him and he has not participated with other co-accused in the alleged crime. However, 6 initiation of the criminal prosecution of this accused is contrary to the facts and also materials secured by the investigating officer during the course of investigation.
8. The second limb of the argument is advanced by the learned counsel by referring the complaint and so also FIR thereafter laying charge sheet against the petitioner. But it is only a mechanical process and without proper investigation laying of charge sheet against the petitioner is nothing but miss carriage of justice to the accused. In support of the contention, the learned counsel has produced the reliance of the judgment in the case of Lalitha Kumari Vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1. By following the said principle, this case requires for intervention by exercising the power under Section 482 of Cr.P.C. Learned counsel further contended that the instant case has been foisted for extraneous reasons and consideration by some inimical 7 persons with an ulterior motive to humiliate and harass the petitioner which is prima facie unjust and illegal.
9. Lastly, the learned counsel submits that the ratio of the reliance of Nagawwa's and Bajan Lal's cases are squarely applicable to the case on hand and in the said judgment, it is held that "where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge" (AIR 1992 SC 604).
10. Therefore, considering the grounds urged in this petition and seeking to allow the petition consequently, quashment of the entire criminal proceedings initiated against the accused in C.C.No.14343/2019 arose in Cr.No.268/2015 and even in the co-accused in aforesaid C.C. number, the trial Court has rendered a judgment in C.C.No.14343/2019 8 dated 14.02.2020. Even in consideration of the evidence of PW1 and 2 who are the official witnesses but their evidence are not suffice on the parts of the prosecution to prove the guilt of the accused and even, the prosecution failed to secure the other witnesses who were cited in the charge sheet despite giving sufficient opportunity and even issuance of coercive process in terms of NBW against C.W.s1 to 7 through the DCP and commissioner of police. These are all the observation made in the acquittal judgment rendered by the trial Court and consequently, acquitted the accused Nos. 2, 3 and 5 for the aforesaid offenses. This petitioner who being the accused No.4 is standing in the better footing for facing trial, even in split up charge sheet is laid against him. But once prosecution is failed to prove the guilt of the said co-accused, benefit of the acquittal judgment should be extended to this petitioner, if not certainly, there shall be miscarriage of justice to the petitioner as he being gravamen of the charges leveled 9 against him. On all these premise, the learned counsel sought for allowing the petition by quashing the entire criminal proceedings initiated against the petitioner in C.C.No.14343/2019 on the file of VII Addl. Chief Metropolitan Magistrate, Bangalore for the aforesaid offences.
11. Per contra, learned HCGP for the State during the course of her argument has taken me through the substances of the charge sheet laid by the investigating officer against the petitioner relating to the crime No.268/2015 as on 04.09.2015 in the limits of Sampige Road, Malleshwaram at Coffee Day Centre, that the three persons said to be arraigned as perpetrators were indulging in conversion of black money into white money in order to cheat general public by meddling touts or agent or any mediator to distribute the amount which reflected in the charge sheet. The 2nd respondent who led the team consisting of his staff 10 members and panch witnesses entered into the spot and nabbed the accused persons including this petitioner in Cr.No.268/2015 and seized item Nos, 1 to 4 under seizure mahazar. In the genesis of the complaint and so also the involvement of the accused, it is found that the petitioner alleged to have committed the alleged offences with other accused, if the accused supposed to be deserving for quashment of the entire criminal proceedings, certainly there shall be abuse of process of law. Therefore, in this case, the petitioner/ accused No.4 is required to face trial and the prosecution has to test the material witnesses to prove the case against the accused. Hence, at this juncture, sought for quashing the criminal proceedings initiated against the petitioner, mere because of co-accused have been ended in acquittal judgment rendered by the trial Court dated 14.02.2020 in C.C.No.11804/2016, and it cannot be a ground for intervention of this Court by exercising power under Section 482 of Cr.P.C. On all 11 these premise, learned HCGP is seeking for dismissal of the petition.
12. It is in this context of the contention taken by the learned counsel for the petitioner and so also counter made by the learned HCGP for the State, it is relevant to refer Secction154 of Cr.P.C. which reads thus:
"154. Information in cognizable cases. Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
When once the credible information said to have been received by the investigating agency in whatever the rank and there is cognizable nature, the power or domain vested with the investigating agency under 12 Section 154 of Cr.P.C. to register the crime by recording the FIR and proceeded with the case for investigation.
13. But in the instant case, the DCP (F&M) Squad had received a credible information by one Anjith Kumar from Suarna TV Channel that three persons at Coffee Day Centre Sampige Road, Malleshwaram were trying to cheat people by assuring to convert black money into white money for commission. Based on the same, the 2nd respondent conducted raid by securing his staff members and panch witnesses and nabbed the accused persons including the petitioner and seized items No.1 to 13 under seizure mahazar in the presence of panch witnesses and laid split up charge sheet against the petitioner in C.C.No.14343/2019.
14. C.W.8-ASI who is examined as P.W.1 in C.C.No.11804/2016 has deposed that on 12.02.2016, he went to Chennai to trace C.W.4 namely Sri. A. John 13 Durai and on enquiry, he came to know that C.W.4 was bed ridden and he has secured some information that he had running the Trust by name "Genesis Educational Charitable Trust", Tiruchi and the same has been closed in the year 2010 as somebody misused the letter pads of his trust. C.W.9-Srinivasaiah H.R., PSI who is examined as PW2 in the said case has deposed that he received complaint of C.W.1 on 04.09.2015, based upon the same, he recorded FIR and received the xerox copies of documents from CCB, Bangalore under Ex.P1 to P4 and he recorded voluntary statements of accused Nos.1 to 5 and statements of C.W.2, 3, 5 to 8. After completion of investigation, he laid charge sheet against the accused persons.
15. Though the prosecution has examined PW 1 and 2 in respect of co-accused and subjected to marking of documents as Ex.P1 to P4, but failed to secure other witnesses who have cited as C.W.1 to 7 14 despite issuance of coercive process in terms of NBW through DCP and also Commissioner of Police in order to prove the guilt of the accused.
16. But in the acquittal judgment, the trial Court has cited a reliance in the case of State of Kanataka Vs Lakshmappa and other reported in ILR 2000 Karnataka 900 wherein it is held that "prosecution not producing injured witnesses even though non-bailable warrants had been issued and case ended in acquittal. In appeal by the State the High Court refused to reopen the case observing that opportunity to lead evidence will be given to the prosecution only once".
17. However, the judgment rendered in respect of accused Nos. 2, 3 and 5 is ended in acquittal in a full-fledged trial by considering the evidence of PW 1 and 2 who are the official witnesses but their evidence did not helpful to the prosecution case to prove the guilt 15 of the accused persons. As such, the trial court held that the prosecution has miserably failed to establish the guilt of accused Nos. 2, 3 and 5 in C.C.No.11804/2016 beyond all reasonable doubt for the aforesaid offence and consequently, acquitted the above said accused. However, learned counsel for the petitioner has submitted that the genesis of the complaint and charge sheet laid by the investigating officer against the petitioner are inseparable and indivisible. Therefore, the same benefit has to be extended to the petitioner, if not, there shall be a miscarriage of justice and abuse of process of law. Under such circumstances, no useful purpose would be served in bringing the present accused against whom the case was split up to trial where the co-accused Nos.2, 3 and 5 have been acquitted in a full-fledged trial. Therefore, the case against the present petitioner would be futile exercise if proceeded with the case against him. The result is predictable as similar to that 16 of Accused Nos.2, 3 and 5 for the offences leveled against them, wherein it is ended in acquittal.
18. Even in the judgment of Hon'ble Apex Court in the case of Lalitha Kumari as stated supra, Hon'ble Apex Court have been extensively address the concept and object of Sections 154, 155, 156 and157 of Cr.P.C. FIR in cognizable case-registration of -whether is mandatory or police officer has option, discretion or latitude of conducting preliminary inquiry before registering FIR-Mandatory registration of FIR on receipt of information disclosing a cognizable offence as the general rule-Situations/cases in which preliminary inquiry is permissible-Scope of, and safeguards to be followed in cases where such preliminary inquiry (time-bound) is permissible.
19. But in the instant case the petitioner has sought for quashing the entire criminal proceedings initiated against him. Therefore, it is relevant to refer 17 the judgment rendered by the Hon'ble Apex court in the case of STATE OF KARNATAKA vs. L.MUNISWAMY & ORS., reported in AIR 1977 SC 1489, wherein it is observed as under:
"In the, exercise of this whole some power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the; ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to. achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice".18
20. In the instant case, the incident as narrated in the split up charge sheet laid against the petitioner- accused No.4 and so also, the charge sheet laid against co-accused persons appears to be on similar footing. When the prosecution has failed to establish the guilt of the co-accused and they are acquitted of the charges leveled against them, the same benefit of acquittal has to be extended to the present petitioner/accused No.4 who is required to face trial in aforesaid split up charge sheet. Though the trial has to be proceeded against this petitioner, but it is only an empty formalities for the disposal of the case because there is no strong reason to hold that this petitioner has to be tried for the same offences on the basis of the same evidence on which the co-accused who stand on the same footing is already acquitted by the trial Court in C.C.No.11804/2016. Therefore, the benefit of acquittal judgment rendered by the trial Court has to be extended to this petitioner who 19 is required to be facing of trial in a split up charge sheet in C.C.No.14343/2019 arose in Cr.No.298/2015.
21. For the aforesaid reasons and findings and in view of the law laid down by the Apex Court, this court is of the considered opinion that the materials available on record before the trial Court against co-accused persons and the present petitioner who is arraigned as accused No.4 are inseparable and indivisible in nature. Therefore, the same benefit has to be extended to the petitioner, if not, there shall be miscarriage of justice and abuse of process of law. Therefore, the petitioner/accused No.4 is deserving for seeking quashing of criminal proceedings initiated against him in C.C.No.14343/2019 arising out of Cr.No.268/2015 for the aforesaid offences. Accordingly, I have to proceed to pass the following:
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ORDER The Criminal Petition filed by the petitioner/Accused No.4 under Section 482 of Cr.P.C. is hereby allowed.
Consequently, the criminal proceedings initiated against the petitioner in C.C.No.14343/2019 on the file of VII Addl. Chief Metropolitan Magistrate, Bangalore arising out of Cr.No.268/2015 of Malleshwaram police station for the aforesaid offences are hereby quashed.
Sd/-
JUDGE JS/-