Karnataka High Court
Hassan Bhava @ Mallur Hassan vs The State By Bajpe Police on 24 April, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 24th DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.3610 of 2008
BETWEEN:
Hassan Bhava @ Mallur Hassan,
Son of Moidinabba,
Aged about 30 years,
Residing at No.2-88,
Near Primary School,
Mallur,
Mangalore. ...PETITIONER
(By Shri. I. Tharanath Poojary, Advocate)
AND:
The State by Bajpe Police,
Represented by Public Prosecutor. ...RESPONDENT
(By Shri. P.M. Nawaz, Additional State Public Prosecutor)
*****
This Criminal Petition is filed under Section 482 code of
Criminal Procedure, 1973, praying to quash all further
proceedings in C.C.No.6663/2007 (vide Annexure-A) and
further investigation by the respondent Bajpe Police in pursuant
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to C.C.No.6663/2007 on the file of the Judicial Magistrate First
Class-III Court, Mangalore.
This petition having been heard and reserved on
02.04.2013 and coming on for pronouncement of orders this
day, the Court delivered the following:-
ORDER
The facts of the case are as follows:-
2. It transpires that one Ananthraj @Ananth Polali was murdered on 7.6.2005 and it was alleged that Mulki Rafeeq and six others were involved. Ananth Polali was the accused in the murder case of one Jabbar. At the time of the incident, Ananth Polali was returning home, after attending the Sessions Court at Mangalore. The Police had investigated and charge-sheeted eight persons, of whom Mohammad Rafeeq @ Mulki Rafeeq was said to be the prime accused and the others were Asgar Ali, Lathif, Nazir Hussain, Sahul Hameed, Dawood, Kunta Rafiq and Akbar. The wife of Ananth Polali was the complainant.
The prosecution had examined as many as 30 witnesses, including the complainant Sharmila and the eye witnesses, 3 Prashanth Bhat, PW.6 and Madhava Poojari - PW.12. Some of the accused had even confessed to the crime. The eye witnesses, PW.6 and PW.12 had turned hostile. The Sessions Court, by its judgment dated 10.6.2004, acquitted all the accused in the case in SC 79/2005. It is further stated that Mulki Rafeeq - A1 and Sahul Hameed A5, Dawood A6, Akbar A8, had absconded. Therefore, the case against them had been split up.
3. During the pendency of the trial in the aforesaid SC No.79/2005, the Police are said to have arrested Mulki Rafeeq
- A1 on 12.1.2007 and that was in connection with the murder of one Sukhananda Shetty. Mulki Rafeeq is said to have been killed when he tried to escape from the police, on 14.1.2007. It is stated that seven months after the acquittal of the accused in the aforesaid case, one Rehamathulla @ Abdul Rehaman is said to have been arrested by the Bhajpe Police on 30.6.2007 and has been produced before the Judicial Magistrate First Class III Court, Mangalore and a charge sheet has been filed, which is 4 said to be a supplementary charge sheet on 12.9.2007 arraigning him as the tenth accused in the murder of Ananth Polali and he is standing trial in the case in C.C.No.5164/2007 and the proceedings are pending against him. In the charge- sheet in that case, it is said to be stated that there were four other persons, namely, Sahul Hameed, Dawood, Akbar and Hassan Bhava, the petitioner herein, who were also involved in the murder of Ananth Polali and that they were absconding. It is further stated that since the present petitioner was absconding, an additional charge-sheet would be filed in due course.
4. The petitioner claims that the only incriminating material against the petitioner, as made out in the charge sheet, is the alleged confessional statement of Rehamathulla. In the above background, it is claimed that the Police had originally filed a charge sheet against 9 accused persons and they have been tried and acquitted by the Sessions Court. The prime 5 accused was arrested during the trial and as already stated, was shot dead in an encounter at the fag end of the trial. It is on the basis of the alleged confessional statement of Rehamathulla, who has now been implicated, the Magistrate is said to have issued process against the petitioner and the involvement of the petitioner is being investigated. Even though the additional charge sheet is not filed against the petitioner, his case has been split up from that of Rehamathulla. The petitioner also contends that in the purported supplementary charge sheet filed against Rehamatulla, the petitioner has been named as accused no.9 and Sahul Hameed, Dawood and Akbar were named as accused nos.5,6 and 8, respectively, who were also arraigned as accused nos.6,5, and 8 in the original charge sheet. Thus, Rehamathulla and the petitioner are newly added. The petitioner claims that he has no complicity with the alleged offence and therefore, questions the jurisdiction of the Magistrate and the propriety of the procedure adopted by the Police.
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5. The learned Counsel for the petitioner would contend that there is no provision under the Code of Criminal Procedure Code, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity) which authorizes the Magistrate to take cognizance of the same offence for a second time, that too after having committed the matter earlier to the Sessions Court and on such committal, the Sessions Judge having tried and rendered a judgment of acquittal.
It is contended that the learned Magistrate could not have taken cognizance of the offence against the petitioner and issued process. The only provision under the Cr.PC, which empowers the Court to add any person to the array of the accused is Section 319 of the Cr.PC, which comes into play after the cognizance and committal order and in the course of trial and inquiry. The power under Section 319 Cr.PC can be invoked, where on recording evidence and on consideration of all the materials available on record , the court found that some additional accused should also be tried together with those 7 already facing trial. It is a well established principle of law that even Section 319 Cr.PC cannot be invoked in a routine and mechanical manner and it could not be used as a handle to cause harassment to innocent persons and therefore, Section 319 Cr.PC could not be invoked, for the simple reason that it is only applicable during an on-going trial and not after the judgment. Though the investigating agency claimed to have extracted a confessional statement of the prime accused during the trial, nothing was done for almost seven months after the acquittal and it is only thereafter, that a supplementary charge sheet is filed against the petitioner. Therefore, the issuance of process to the petitioner amounts to taking cognizance for a second time, for the same offence, which is not provided for under the Cr.PC.
It is further contended that the question of supplementary charge sheet arises only during the pendency of the trial on an existing charge-sheet. The only provision under the Cr.PC, which provides for filing of a supplementary charge sheet is 8 under section 173(8) of the Cr.PC, which empowers the investigating agencies to file a supplementary charge sheet at the post-cognizance stage, when on further investigation, fresh facts come to light about the involvement of others, who were not named earlier. Normally, the investigating agencies would seek prior permission from the respective courts and on the order for further investigation, the supplementary charge sheet could be filed, but no supplementary charge sheet could be filed without further investigation. The Police not having invoked the provisions of Section 173(8) of the Cr.PC during the trial, could not reopen the case after the judgment.
7. In this regard, the learned Counsel places reliance on the following authorities:
1. Michael Machado and another vs. Central Bureau of Investigation and another, (2000) 3 SCC 262,
2. Ram Lal Narang vs. State (Delhi Admn.), AIR 1979 SC 1791,
3. Abdul Qayyum Akhtar and another, vs. State of Rajasthan, 2004 CRI. L.J.2764, 9
4. T.T. Antony etc. etc. Vs. State of Kerala and others, 2001(5) Supreme 131 Supreme Court of India,
5. Kailash Vs. State of Rajasthan and another, 2008(2) AICLR, 455,
6. Manilal Keshri and others Vs. State of Bihar and another, 2006 CRI.LJ .3981.
8. In the above facts and circumstances, the very basis of the petition is faulty. The grounds urged would seem to emphasize that the present petitioner is sought to be made an additional accused in a pending case at the post congnizance stage and before the evidence has commenced. This is an incorrect premise. Admittedly, the case originally brought in SC 79/2005 had been split up in view of A1, A5,A6 and A8 having absconded. A1 was arrested, but, killed when he tried to escape from the Police, during the pendency of the earlier trial in SC 79/2005. It is after the accused therein had been acquitted that one Rehamathulla @ Abdul Rehaman was arrested and a charge sheet was filed against him naming him as 10 the tenth accused along with the remaining accused, who were yet to stand trial and he is said to be standing trial in case in CC 5164/2007. The petitioner having been named in the charge sheet therein, on a purported statement said to have been made by Rehamathulla, the matter is under investigation. But, the impression sought to be created is that the petitioner is being sought to be named as an accused in a case, that was progressed and in which judgment has been rendered, is not entirely correct and is misleading. The fact that some of the accused have already stood trial and they have been acquitted, may certainly enure to the benefit of the remaining accused, who are yet to stand trial. Therefore, the case law that is cited to urge that there can be additional accused named, only in terms of Section 319 of the Cr.PC or in terms of Section 173(8) of the Cr.PC etc., is not tenable. It is a situation where additional evidence has been gathered by chance, and the Police were yet to make out a case as against the petitioner. At this stage, proceeding on the basis of the grounds urged in the present 11 petition, it would not be possible to quash the proceedings, as the said grounds are not tenable for the above reasons.
Consequently, the petition is dismissed.
Sd/-
JUDGE nv