Karnataka High Court
Nazeer @ Nazeer Kalladka vs The State Of Karnataka on 13 July, 2018
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2018
:BEFORE:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
WRIT PETITION NO.27706/2018 (GM-RES)
BETWEEN
NAZEER @ NAZEER KALLADKA
S/O ABUBAKKER
AGED ABOUT 39 YEARS
R/AT BEHIND GOVT. HIGHER
PRIMARY SCHOOL, ISMAIL NAGAR
GOLTAMAJALU VILLAGE
BANTWAL TALUK
D.K.DIST-574 222 ... PETITIONER
(BY SRI. LETHIF B. ADV.)
AND
THE STATE OF KARNATAKA
BY SURATHKAL POLICE STATION
D.K.DIST. REP BY SPP
HIGH COURT BUILDING
BANGALORE-560 001 ... RESPONDENT
(BY SRI. S. RACHAIAH, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA R/W
SEC.482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE
PROCEEDINGS AGAINST THE PETITIONER IN
S.C.NO.19/2009 (CRIME NO.219/2006) OF SURATHKAL
POLICE STATION, D.K. DISTRICT, ON THE FILE OF THE
6TH ADDL. DISTRICT AND SESSIONS JUDGE, D.K.
MANGALURU, WHICH IS PRODUCED AT ANNEXURE-D.
2
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 05.07.2018 COMING ON
FOR 'PRONOUNCEMENT OF ORDER', THIS DAY K.N.
PHANEENDRA, J. MADE THE FOLLOWING:
ORDER
The petitioner is arrayed as accused No.10 in SC No.51/2007 and connected matters originally on the file of the VI Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru, and later the same has been culminated into Sessions Case No.19/2009 on the file of the II Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru.
2. The petitioner has claimed that some of the accused persons who were tried in the above noted Sessions Case are acquitted vide judgment dated 28.3.2018. Therefore, the petitioner claims that, the facts and circumstances of this case and the allegations made against the petitioner and the acquitted accused are one and the same and they are inseparable and indivisible in nature. However due to non availability of the petitioner, a split up charge sheet was filed against him in SC No.19/2009, pending on the file of the II 3 Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru. Therefore, the petitioner claims that benefit of judgment of acquittal may also be extended to the petitioner and consequently, all further proceedings against him in SC No.19/2009, may be quashed.
3. The benefit of judgment of acquittal can also be extended to the absconding accused persons against whom a split up case has been registered and consequential quashing of the proceedings can be done only under peculiar circumstances of the case. This point has been extensively dealt with by the Hon'ble Apex Court and this court.
4. In this regard, it is worth to note here a decision of the Hon'ble Apex Court reported in AIR 2005 SC 268 in the case of Central Bureau of Investigation Vs. Akhilesh Singh, wherein, it was held that:
"Quashing of charge and discharge of the accused when an accused who alleged to have hatched conspiracy and who had motive to kill the deceased were already 4 discharged, that matter had attained finality, the discharge of co-accused by High Court by holding that no purpose would be served in further proceeding with case against co- accused held proper."
5. In another decision reported in 2002(1) KCCR 1 in the case of Muneer Ahmed Qureshi, Muneer @ Gaun Muneer Vs. State of Karnataka by Kumaraswamy Layout Police, wherein this Court has held that:
"Entire case of the prosecution as
against six accused is practically
inseparable and individual one and
especially when the Judgment of acquittal is passed, when P.W.1 denies the entire incident or the role of the accused. This reasoning of acquittal would also definitely enure to the petitioner. Even if the petitioner is tried there cannot be any other material other than what is already produced and considered by Trial Court. In such circumstances it will be an exercise in futility to make the petitioner to undergo the ordeal of crime, and then to be acquitted. 5
Holding that the proceeding against the accused person who was absconding and subsequently against whom a split up charge sheet was filed, is quashed."
6. In the above said backdrop and the dictum of the Hon'ble Apex Court and this court, the only point that requires for consideration of this court is -
"Whether the materials placed before the court against the accused persons who were already acquitted and the material available against the petitioner herein, are one and the same and inseparable if juxtapose compared with each other".
If the allegations are indivisible and inseparable in nature, in such an eventuality, the judgment of acquittal can also be extended to the absconding accused persons or against whom, a separate split up charge sheet has been filed. Therefore, it is incumbent upon the court to examine the materials on record to find out whether the petitioners are entitled for such benefit in a given particular case. Therefore, it is just and necessary to ascertain the factual aspects of this case. 6
7. It is the case of the prosecution that as could be seen from the original charge sheet and as well as the factual matrix that emanate from the judgment recorded by the trial Court are that -
Accused Nos.1 to 3, 14 and 15 along with the driver of car bearing No.TN-43/S-4617, with deadly weapons, with the common object, committed criminal conspiracy with an intention to commit murder of Sukananda Shetty, who was the worker of BJP and Sangha Parivar Organization in Mangaluru. With that criminal conspiracy, on 1.12.2006 to an alley road by the side of Marble Traders of Vinaya Kumar Goel, Kulai, the accused persons restrained him and assaulted him with talvars and clubs and caused grievous injuries. On the basis of the complaint lodged, the Police Inspector, Surathkal Police Station, had submitted a charge sheet in Crime No.219/2006 against the accused Nos.1 to 13 for the offence punishable under sections 143, 144, 147, 148, 341, 323, 109, 120B, 212 and 302 read with Section 149 of IPC. As the accused No.10 did not appear for the trial, the trial Court ordered to 7 register a split up case against him in SC No.19/2009 for the offences punishable u/ss.143, 144, 147, 148, 341, 323, 109, 120-B, 212 and 302 read with Section 149 of IPC.
8. On the basis of the above said allegations, the respondent Police have registered a case in Crime No.219/2006 and after investigation submitted a charge sheet. After committal, accused Nos.1-4 and 6 to 9 were secured in SC No.51/2007 and connected matters. Subsequently, charges were framed against the accused persons therein including the accused who were absconding, as the allegations are inseparable.
9. The prosecution in order to prove the guilt of the accused examined as many as 7 witnesses and got marked 10 documents as Exhibits P-1 to P-10. After appreciating the oral and documentary evidence, the Sessions Court has come to the conclusion that, there was no acceptable evidence to prove that the accused have committed the offences charged against them. The court has also observed that, the material witnesses have not supported the case of the prosecution 8 particularly PWs.1 to 3. Therefore, the court has acquitted some of the other accused persons for the alleged offences.
10. On careful perusal of the materials on record, the allegations made against the petitioner and other acquitted accused persons are one and the same and they are inseperable and indivisible in nature. The evidence that has already been placed by the prosecution and appreciated by the trial Court also reveal that the allegations against the petitioner are not distinct and separate from the other acquitted accused persons.
11. Under the above said facts and circumstances of the case, considering the factual aspects of this case, no purpose would be served if the petitioner is once again tried for the same offences as the prosecution cannot put forth any better evidence than the one already placed and appreciated by the trial Court. Hence, the petitioner is also entitled for the benefit of acquittal. If the prosecution is ordered to be continued, same amounts to waste of judicial time and also abuse 9 of process of the court. Hence, I proceed to pass the following:
ORDER The Petition is allowed. Consequently, all further proceedings in Sessions Case No.19/2009 (Arising out of Crime No.219/2006 of Surathkal Police Station) pending on the file of the II Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru, against the petitioner herein is hereby quashed.
Sd/-
JUDGE PL*