Karnataka High Court
Sri Shivakumar Balaram vs State Of Karnataka on 15 June, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:20801
WP No. 18363 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 18363 OF 2022 (GM-RES)
BETWEEN:
SRI. SHIVAKUMAR BALARAM
C/O BALARAM
AGED ABOUT 49 YEARS
PERMANENTLY R/AT NO.23/1,
BORE BANK ROAD, BENSON TOWN,
VTC, P.O.BENSON TOWN,
BENGALURU - 560 046.
CURRENTLY R/AT:
DUBAI, UAE
NO.201,MAZAYA 10, LIWAN
DUBAI LAND, DUBAI.
...PETITIONER
(BY SRI. ABHINAV R., ADVOCATE)
Digitally signed by
PADMAVATHI B K AND:
Location: HIGH
COURT OF
KARNATAKA 1. STATE OF KARNATAKA
JNANABHARATHI POLICE STATION,
BENGALURU - 560 056.
REP. BY ITS POLICE INSPECTOR
2. SMT. MANJULA C.,
W/O SRI. SHIVAKUMAR BALARAM
MAJOR, R/AT NO.1 AND 2, 3F2
SRI. ANNAM RESIDENCY
GARDEN VILLA, NAGARBHAVI
-2-
NC: 2023:KHC:20801
WP No. 18363 of 2022
BENGALURU - 560 072.
...RESPONDENTS
(BY SMT. K.P.YASHODA, HCGP FOR R-1;
SMT. M.GAYATHRI, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE
CR.P.C., PRAYING TO-ALLOW THE INSTANT PETITION AND
QUASH THE FIR/CRIME NO.09/2013 DATED 08.01.2013 AND
COMPLAINT DATED 08.01.2013 FILED BY THE R2 WHICH IS
ANNEXED AS ANNEXURE-A AND B AND THE ENTIRE
PROCEEDINGS IN C.C.NO.30058/2019 PENDING ON THE FILES
OF THE HONBLE IX ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU AGAINST THE PETITIONER FOR
OFFENCES PUNISHABLE U/S 323, 324, 506 R/W SECTION 34
OF THE INDIAN PENAL CODE, 1860 AT ANNEXURE-D.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court seeking the following prayer:
a. Allow the instant petition and quash the F.I.R. / Crime No.09/2013 dated 08.01.2013 and complaint dated 08.01.2013 filed by the Respondent no.2 which is annexed as Annexure - A and B and the entire proceedings in C.C.No.30058/2019 pending on the files of the Hon'ble IX Additional Chief Metropolitan Magistrate at Bengaluru against the Petitioner for offences punishable under Section 323, 324, 506 read with section 374 of the Indian Penal Code, 1860 at Annexure - D insofar as the Petitioner is concerned.-3-
NC: 2023:KHC:20801 WP No. 18363 of 2022 b. To pass any other order / s as per facts and circumstances of the above case in the interest of Justice."
Heard Sri Abhinav Right, learned counsel for petitioner, Smt. K.P.Yashoda, learned High Court Government Pleader for respondent No.1. and Smt. M. Gayathri, learned counsel for respondent No.2.
Learned counsel for the petitioner submits that accused No.2 who faced trial is acquitted by the concerned Court by holding that the prosecution has failed to prove the guilt beyond reasonable doubt as there is no evidence produced by the prosecution against the petitioner therein, to prove the offence. Insofar as accused No.3. is concerned, this Court in W.P.No.18335/2022, by its order dated 29.09.2022, has quashed the split charge sheet / proceedings in C.C.No.30058/2019, on the reasons rendered by the learned Magistrate, while acquitting accused No.2. Therefore, seeks the same relief as granted to accused No.3.-4-
NC: 2023:KHC:20801 WP No. 18363 of 2022 Learned High Court Government Pleader would not dispute the fact that accused No.2 is acquitted by the learned Magistrate and the proceedings against accused No.3 is quashed by this Court.
I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.
The afore-narrated facts are not in dispute and requires no reiteration. The petitioner - accused No.1 and accused No.3 did not face trial as they have allegedly absconding at that point in time. Therefore, the concerned Court split the charge sheet against accused Nos.1 and 3 and acquitted accused No.2.
The reason rendered by the concerned Court to acquit accused No.2 would become squarely applicable to the petitioner as well, as all the accused were alleged of performing the act similar to each other. This Court insofar accused No.3 is concerned, has held as follows:-5-
NC: 2023:KHC:20801 WP No. 18363 of 2022 "3. Brief facts of the case that leads the petitioner to this Court in the subject petition are as follows:
A complaint comes to be registered on 08.01.2013, in Crime No.9/2013 for the afore-quoted offences. The police after investigation file a charge sheet in C.C.No.7856/2013 against all the accused, three in total. At the relevant point in time, the petitioner -
accused No.3 was not available for trial, a split charge sheet is laid against the petitioner in C.C.No.30058/2019. The concerned Court by its order dated 27.04.2022, acquits accused No.2 of the offences alleged against him. Now the trial is sought to be continued against accused No.3, the petitioner herein, in Split C.C.No.30058/2019, from C.C.No.7856/2013. The concerned Court has by its order dated 27.04.2022, acquitted accused No.2. The reason rendered for such acquittal are as follows::
"14. It is relevant to note that in spite of issuance of summons to CW.6 and CW.7 through the Deputy Commissioner of Police, they have not been secured before this court. CW.6 is shown as Doctor who issued wound certificate of PW.1. CW.7 is the Investigating Officer who has filed charge-sheet against the accused No.1 to 3. Therefore, CW.6 and CW.7 are material witnesses. Therefore, the non-examination of material witnesses is fatal to the prosecution case. In the absence of evidence of Doctor and Investigating Officer, this court is not inclined to believe the story of the prosecution. It is relevant to note that except PW.1 no one has uttered single word with respect to the alleged role played by the accused No.2 in commission of the alleged offence. There is no independent supporting evidence to support the version of PW.1. In so far as PW.3 is concerned she is a hearsay witness. Therefore, much credibility cannot be attached to the evidence of PW.3. As already stated supra, though the prosecution has examined injured witness and panch witnesses but failed to examine the Doctor who treated the injured and the IO who has filed charge-sheet. Therefore, I am of the -6- NC: 2023:KHC:20801 WP No. 18363 of 2022 opinion that the prosecution has utterly failed to prove the charges levelled against the accused. Accordingly, I answer Point No.1 to 4 in the negative.
15. Point No.5: For the aforesaid reasons, I proceed to pass the following:
ORDER Acting under Section 248(1) of Cr.P.C., accused No.2 is hereby acquitted of the offences punishable u/Sec.323, 324, 506 r/w. 34 of IPC.
The bail bond of accused No.2 stands cancelled.
The office is directed to keep the entire file in split-up CC No.30058/2019."
In the light of the reasons rendered for acquittal of accused No.2 would also enure to the benefit of the petitioner as well, as the reasons for such acquittal is that, no witness is examined who would speak for the charge alleged against accused No.2. The findings rendered by the trial Court would be applicable to the petitioner as well. Therefore, in the light of the order of acquittal, permitting further proceedings to continue against the petitioner, would be an exercise in futility, with no utility and would become a waste of judicial time."
In the light of the order passed in favour of accused No.3, the petitioner being accused No.1 and also similarly placed as accused No.2, he would become entitled to the same order qua accused No.3.
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7. For the aforesaid reasons, the following:
ORDER a. The Writ Petition is allowed.
b. The split charge sheet against the petitioner/accused No.1 in C.C.No.30058/2019, pending before the IX Additional Chief Metropolitan Magistrate, Bengaluru, stands quashed.
Sd/-
JUDGE NVJ List No.: 1 Sl No.: 63 CT:SS