Karnataka High Court
Khaseem vs The State Of Karnataka on 27 May, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.47 OF 2022
BETWEEN
KHASEEM,
S/O T. K. KUNHIMMAD,
AGED ABOUT 42 YEARS,
R/AT NEAR MAKKI KAMAN GATE,
BETHU VILLAGE,
NAPOKLU,
KODAGU DISTRICT - 571 213.
... PETITIONER
[BY SRI.PRATHEEP K.C., ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
REPRESENTED BY
NAPOKLU POLICE STATION,
KODAGU DISTRICT.
REPRESENTED BY ITS
STATE PUBLIC PROSEUCTOR,
HIGH COURT OF KARNATAKA,
BANGALORE - 01.
2. P. M. POONACHA,
S/O MUTHAPPA,
AGED ABOUT 33 YEARS,
VILLAGE ASSISTANT,
PERURU VILLAGE,
2
MADIKERI,
KODAGU DISTRICT - 571 213.
... RESPONDENTS
(BY SRI.K.S.ABHIJITH, HCGP FOR R1;
SRI.NAVEEN BIDDAPPA, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE
PROCEEDINGS AGAINST THE PETITIONER IN
SPL.C.NO.155/2018 (CR.NO.135/2017) OF NAPOKLU
POLICE STATION, KODAGU DISTRICT, FOR THE OFFENCE
P/U/S 279, 323, 504, 506 R/W 34 OF IPC AND SECTION
3(1)(r) AND 3(2)(v-a) OF SC/ST (POA) ACT ON THE FILE OF I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU,
MADIKERI.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court calling in question the proceedings in Spl.C.No.155/2018 which arose out of Cr.No.135/2017 registered by the Napoklu police station, Kodagu District for the offences punishable under Sections 279, 323, 504, 506 read with Section 34 of IPC and Section 3(1)(r), and 3(2)(v-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on the file of 3 I Additional District and Sessions Judge, Kodagu, Madikeri.
2. Heard Sri. Pratheep K.C., learned counsel appearing for the petitioner, Sri. K.S.Abhijith, learned HCGP appearing for the 1st respondent-
State and Sri. Naveen Biddappa, learned counsel appearing for the 2nd respondent.
3. The petitioner is accused No.4 in the crime. A crash between the car belonging to the complainant and that of the 1st accused, the presence of the other accused in the alleged scene of crime leads to registration of the complaint by the 2nd respondent, alleging the aforesaid offences including offences punishable under provisions of the Prevention of Atrocities Act, 1989.
44. Accused Nos. 1 to 3 faced trial and were acquitted by an order of the learned Sessions Judge in Spl.C.No.4/2018, by its order dated 31.07.2019.
The petitioner was not available for trial as he was allegedly absconding and therefore a split charge sheet was framed against the petitioner. It is the said charge sheet that is now, sought to be tried against the petitioner notwithstanding the acquittal order against the accused Nos.1 to 3.
5. The learned counsel appearing for the petitioner submits that the petitioner was not aware of the ongoing trial, in the light of the confusion with regard to two names of the accused being the same, one of accused No.1 and accused No.4-the petitioner and therefore, was not aware of the trial.
He would seek parity in treatment and quashment 5 of the proceedings in the light of the acquittal of accused Nos.1 and 3.
6. The learned HCGP however, refutes the submissions, and would contend that the petitioner escaped trial and indulgence should not be shown and he should face trial, it is for the Sessions Judge to pass appropriate orders and the places reliance upon the judgment of the co-ordinate Bench of this Court in Crl.P.No.6857/2020 rendered on 24.03.2021.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the materials on record.
8. The afore-stated facts are not in dispute.
The case registered is in common against all the accused including that of the petitioner, it has 6 resulted in acquittal of the accused Nos.1 to 3 in terms of an order of the learned Sessions Judge.
The reason rendered of the learned Sessions Judge reads as follows:
"27. The statements of PWs.5 to 7 said to have been given under Section 161 of Cr.P.C., as per Ex.P.7 to 9 cannot be relied upon, as they are inadmissible in evidence and all of them have given a go-bye to the said statements.
28. Thus, on an appreciation of the entire oral and documentary evidence on record, the prosecution has miserably failed to adduce any cogent and reliable evidence to connect the accused with the alleged offences and prove the charges framed against the accused for the offences punishable under Sections 279,323,504,506 read with 34 of IPC and Sections 3(1)(r), 3(1)(s) and 3(2)(v-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, beyond all reasonable doubt. Hence, the accused persons are liable to be acquitted, on the ground of benefit of doubt. Hence, I answer Point Nos.1 to 5 in the 'Negative'."
9. The learned Sessions Judge on appreciation of the entire oral and documentary evidence holds that the prosecution has miserably failed to adduce any 7 cogent or reliable evidence to connect the accused in the alleged offences and prove them beyond all reasonable doubt. If the offences could not be proved against accused Nos.1 to 3, independent allegations against accused No.4-the petitioner herein not being present permitting the trial to be continued against the petitioner would become an exercise and futility. The reliance placed by the judgment of the co-ordinate Bench by the leaned HCGP is distinguishable on facts without much ado and has been distinguished by a Co-
ordinate Bench of this Court in Crl.P.No.110910/2020 rendered on 24.03.2022. This Court in Cr.P.No.3017/2022 on identical circumstance by its order dated 22.04.2022 has held as follows:
11. If the prosecution has failed in establishing the guilt of the accused, the petitioner being accused No.1 and the other being accused No.2 and the crime arising out of the very same set of facts and the very same evidence, the finding would enure to the benefit of the petitioner as well, as paragraph 19 (supra) makes it abundantly clear that the prosecution was unable to connect the incident itself to the accused facing trial. If the prosecution has failed 8 to connect the incident to the accused, it would be equally applicable to accused No.1, the petitioner, as it was applicable to accused No.2.
12. Though, the petitioner was absconding throughout the trial and did not face the rigmarole of the procedure of a criminal trial, one fact cannot be lost sight of is, the right of liberty of a person which is a fundamental right. When this Court finds that the other accused who stood on the same footing not being convicted for the reason that there was no evidence to link the incident to the accused, directing trial to be conducted against the petitioner on the ground that he was absconding, will result in miscarriage of justice.
13. If all the accused were available for trial except the petitioner and those accused had been convicted of the offences, then it would be, "a yes" for conducting a trial against the petitioner. But, what has happened is the opposite, the accused No.2 has been acquitted.
Therefore, in my considered view, the trial against accused No.2, in the teeth of the finding of the learned Sessions Judge in favour of accused No.2 and the order of the learned Sessions Judge having become final qua accused No.2, further trial against the petitioner cannot be permitted to be continued.
14. The view of mine, in this regard, is fortified by the judgment rendered by a Co- ordinate Bench of this Court in Crl.P.4796/2017 wherein the Co-ordinate Bench considering identical set of facts has held as follows:
"12. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that petitioner/accused was never 9 traced and non-bailable warrant issued against him was never executed. Hon'ble Apex Court in the case of CENTRAL BUREAU OF INVESTIGATION vs AKHILESH SINGH reported in AIR 2005 SCC 268 has held quashing of charge and order discharging co-accused can be passed, if the proceedings initiated against co-accused is on similar allegations and if said judgment had reached finality. It is also held that discharge of a co-accused by the High Court by holding that no purpose would be served in further proceeding with the case, is just and proper. In another ruling in MOHAMMED ILIAS vs. STATE OF KARNATAKA reported in (2001) 3 Kant LJ 551 this Court has held as under:
"The petitioner is the accused in the case and he is shown to be the absconding. Therefore, the case against the petitioner was split up and charge-sheet was laid against other available accused Nos.1 and 3 for committing an offence punishable under Sections 498A and 307 IPC r/w 34 Indian Penal Code, 1860. After the trial, the Sessions Judge acquitted the accused Nos.1 to 3. The petitioner was arrested and proceedings were revived against him in the split charge sheet.... In the instant case also, the full pledged trial was held against accused Nos.1 to 3, in respect of the same offence. In the second round of trial against the petitioner, the evidence to be produced cannot be different from the one that was produced by the prosecution in the earlier case. Therefore, in that view of the matter, the proceeding is quashed."
13. Yet, in another ruling THE STATE OF KARNATAKA vs. K.C.NARASEGOWDA reported in ILR 2005 Kar. 1822 this Court has held to the following effect:
10"As the case before the Sessions Judge is not a pending case, he cannot keep the file any longer pending nor he can close the case as he has to await appearance of the accused or the production by the State, for passing orders regarding undergoing sentence. As such, considering these peculiar facts and circumstances, it is deemed proper to exercise the inherent jurisdiction under Section 482 of Cr.P.C. instead of jurisdiction under Section 385 of Cr.P.C. in the interest of justice. As the entire material evidence of the prosecutions is one and the same, as against all the accused including the non-appealing accused No.1, who is said to be absconding, there is no second opinion that he is also entitled for the same benefit of doubt as he is extended for his co-accused. Accused acquitted by giving benefit of doubt."
14. In this background, when the facts on hand are examined, it would clearly indicate that not only complainant but also other witnesses including the inmates of ambulance in which they were travelling on the date of incident, had turned hostile in the proceedings which was continued against co-accused. Though, P.W.1 - complainant had admitted that he has lodged a compliant as per Ex.P-1 and had also admitted that he has given a statement identifying the accused before the Investigation Officer, he did not identify the accused persons present before Court. In fact, statements given by him as per Exs.P-2 to P-4 when confronted, he denied the same and had also denied the suggestion put by the public prosecutor that he had furnished the statements as per Exs.P-2 to P-4 as false. P.W.2 to P.W.8 had not identified the accused persons present before the jurisdictional Sessions Court.
11In fact, they have not even identified the statements made by them before the Investigating Officer and nothing worthwhile has been elicited in their cross-examination to disbelieve their evidence. Thus, taking into consideration said evidence available on record Sessions Court had arrived at a conclusion that evidence of the witnesses examined by prosecution would not come to their assistance. In fact, witnesses to the seizure panchnama - Ex.P-40, who were examined as P.W.16 and P.W.17, have also turned hostile and they have stated that police had called them a year back to the police station and when they went to the police station, they had not seen any accused persons in police station. However, they admit police having taken their signatures on the papers and contents of it were not known to them.
15. It is in this background, trial Court on appreciation of entire evidence had acquitted all the accused persons by holding that prosecution had failed to prove the offence alleging accused persons beyond reasonable doubt attracting the ingredients of provisions of the offence alleged against them. In fact, Sessions Court has observed that there was certain communal disturbance in Dakshina Kannada district and other places at Bantwal Taluk and to please on community of people, the Investigating Officer might have falsely implicated the accused persons in a false case or to avoid the blame to be received from the public or other community people and such possibilities cannot be ruled out. In this background, when prayer of petitioner sought for in the present petition is examined, it can be noticed that contents of supplementary charge sheet filed against the petitioner is similar, identical and in fact, it is replica of charge made against accused Nos.1 to 23 and 25 to 33, who15 12 were tried in S.C.No.12/2007, 94/2007 and 26/2008 and had been acquitted.
16. In that view of the matter, this Court is of the firm view that judgment rendered by trial Court insofar as it relates to accused Nos.1 to 23 and 25 to 33 is similar and identical to the charge made against the present petitioner. This Court does not find any independent or separate material having been placed by the prosecution against present petitioner to put him on trial once again and directing the petitioner-accused to undergo the order of trial, which ultimately would fetch same result as that of accused Nos.1 to 23 and 25 to 33. When allegation made against accused Nos.1 to 23 and 25 to 33 is compared with the allegation made against present petitioner, it has to be necessarily held that they are identical, similar and inseparable in nature and no independent decision can be taken against the present petitioner. Therefore, no purpose would be served even if the present petitioner is ordered to be tried by the trial Court.
17. In view of the afore stated facts and the law laid down, as discussed hereinabove, it would emerge that there would be no harm or injustice that would be caused to prosecution if benefit of acquittal order is passed in favour of accused - petitioner, since accused Nos.1 to 23 and 25 to 33 against whom similar allegation had been made is already acquitted. Though, it is contended by Sri. Rachaiah, learned HCGP appearing for the State that petitioner should not be extended said benefit, since he is an absconder, by relying upon judgment of Coordinate Bench this Court is not inclined to accept said contention for single reason that said judgment had been rendered based on the judgment of Apex Court in the case of DEEPAK 13 RAJAK vs. STATE OF WEST BENGAL reported in (2007) 15 SCC 305 where under Apex Court after noticing the facts obtained in the said case, had held that benefit of acquittal, should be extended to the appellant, since co-accused had been acquitted and held that a departure can be made in cases where accused has not surrendered "after conviction" in addition to not filing an appeal against the conviction. As such, noticing earlier position of law laid down it was held by the Apex Court that in case of acquittal of a accused for same offence on same set of facts and on similar accusations, if considered, it would entile for acquittal of co-accused also.
18. In that view of the matter, present proceedings initiated against petitioner is liable to be quashed.
Hence, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii) Proceedings in C.C.No.1170/2007 pending on the file of Addl. Civil Judge & JMFC, Bantwal, in Cr.No.130/2006 registered by Bantwal Rural Police Station, is hereby quashed insofar petitioner is concerned.
In view of criminal petition having been disposed of on merits, I.A.No.1/2017 for stay does not survive for consideration and same stands rejected."
The Co-ordinate Bench was considering a case where the co-accused who had escaped trial had not surrendered or was not arrested by the police.
1415. In the case at hand, the petitioner was taken into custody on 24.02.2022 and is in custody for the last two months. The facts obtaining in the case at hand; the order of the learned Sessions Judge acquitting accused No.2 on the same set of facts and on the ground that there was no evidence to link the incident with the accused; the said order of acquittal having become final; the order passed by the Co-ordinate Bench (supra), a trajectory of all the aforesaid would lead to an unmistakable conclusion that the petitioner cannot be permitted to undergo trial and I deem it appropriate to obliterate the proceedings against the petitioner accepting the subject petition filed under Section 482 of the Cr.P.C.
10. In the light of the judgment rendered by this Court and that of the co-ordinate Bench supra, I deem it appropriate to exercise the jurisdiction of this Court under Section 482 of Cr.P.C. and obliterate further trial against the petitioner.
11. For the aforesaid reasons, the following:
ORDER The Criminal Petition is allowed.
The proceedings in Spl.C.No.155/2018 pending on the file of the I Additional 15 District and Sessions Judge, Kodagu, Madikeri (Cr.No.135/2017) stand quashed qua the petitioner.
Sd/-
JUDGE JS/-