Karnataka High Court
Safwan @ Mohammed Safwan @ Safan vs State Of Karnataka on 23 May, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 11978 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 11978 OF 2022
BETWEEN:
SAFWAN @ MOHAMMED SAFWAN @ SAFAN
S/O SADHIQ
AGED ABOUT 28 YEARS
R/AT BITTHU PADE HOUSE
PADU POST, BONDANTHILA VILLAGE
MANGALURU TALUK
DAKSHINA KANNADA - 575 029.
PRESENTLY R/AT 1-335
BADRIYA NAGARA
MALLUR POST
MANGALORE TALUK
DAKSHINA KANNADA - 575 029.
...PETITIONER
Digitally signed by
PADMAVATHI B K
(BY SRI SANDESH J.CHOUTA., SENIOR ADVOCATE A/W.
Location: HIGH
COURT OF SRI KETHAN KUMAR, ADVOCATE)
KARNATAKA
AND:
1. STATE OF KARNATAKA
MANGALURU RURAL POLICE STATION
DAKSHINA KANNADA
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
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CRL.P No. 11978 of 2022
2. R.GANGADHAR AMIN
S/O DOOMAPPA POOJARY
AGED ABOUT 70 YEARS
R/AT GANADAKOTTIGE HOUSE
THUMBE POST
BANTWAL TALUK
DAKSHINA KANNADA - 574 223.
...RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R-1 AND R-2 SERVED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH CRIMINAL PROCEEDINGS
AGAINST THE PETITIONER IN C.C.NO.2414/2018 PENDING ON
THE FILE OF THE JMFC III COURT, MANGALURU D.K FOR THE
OFFENCE P/U/S.143, 147, 148, 448, 323, 324, 427, 395 R/W
SEC.149 OF IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question continuation of proceedings in C.C.No.2414/2018 against the petitioner for the offences punishable under Sections 143, 147, 148, 448, 323, 324, 427, 395 r/w. 149 of the IPC.
-3- CRL.P No. 11978 of 20222. Heard Sri Sandesh J. Chouta, learned senior counsel for the petitioner and Sri Mahesh Shetty, learned High Court Government Pleader for respondent No.1.
3. Facts in brief, germane for consideration of the lis are as follows:
The petitioner along with others were arraigned as accused in S.C.No.103/2018. Since the petitioner was not available for trial, the concerned Court splits the charge sheet and continues the proceedings in C.C.No.2414/2018 against the petitioner. What drives the petitioner to this Court at this juncture is the order passed by this Court in Crl.P.No.7720/2022 on 02.09.2022, qua accused No.13, who also had escaped trial. The concerned Court had split up the charge sheet and continued the proceedings in S.C.No.87/2019, against accused No.13. It is the contention of the petitioner that the allegations against him is similar to the allegations made against accused No.13 and therefore, the petitioner should be granted the same relief as is granted to accused No.13. As all the 22 accused were alleged of the same aforesaid offences and without there being any specific -4- CRL.P No. 11978 of 2022 allegation against each of the accused, all of them are acquitted and therefore, seeks quashment of the impugned proceedings.
4. The order dated 02.09.2022 passed in Crl.P.No.7720/2022, reads as follows:
"4. The learned Sessions Judge, by his order dated 01.12.2021, acquits accused Nos.1 to 11, 14, 16 to 18 and 21 in S.C.No.103/2018. At the relevant point in time, when the trial was on, the petitioner was not available for trial, as he was allegedly absconding and a split charge sheet was issued against the petitioner in S.C.No.87/2019 in terms of an order of the learned Sessions Judge dated 10.06.2019. The continuation of proceedings in S.C.No.87/2019 is what drives the petitioner to this Court in the subject petition.
5. Learned counsel, Sri. Lethif B., appearing for the petitioner would contend that the allegations are the ones punishable under Sections 143, 147, 148, 448, 323, 324, 427, 395, 149 of the IPC. The said allegation is necessarily to be common against all the accused and it is infact common against all the accused. The acquittal order passed by the concerned Court is on the basis of the complainant himself turning hostile. In the teeth of the fact that the complainant himself turned hostile, the Court holds that the prosecution has failed to prove the guilt beyond all reasonable doubt and therefore, the petitioner is entitled to be the same order as is passed by the concerned Court acquitting the aforesaid accused.
6. Learned HCGP would however refute the submission to contend that the petitioner would escape trial, should necessarily face trial and considered for acquittal by the concerned Court and this Court should not interfere at this juncture, as a person, who has escaped trial should not be shown any indulgence under section 482 of Cr.P.C .
7. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.
-5- CRL.P No. 11978 of 20228. The afore-narrated facts are not in dispute. The allegation against the petitioner are the ones punishable under Sections 143, 147, 148, 448, 323, 324, 427, 395, 149 of the IPC. The allegation was against 22 accused and the offences alleged were common, the allegations are also common. The concerned Court, by its order dated 01.12.2021, acquits accused Nos.1, to 11, 14, 16 to 18 and 21 by rendering the following reason:
REASONS
9. Poin"t No.1 to 5: The P.W.1 has stated that on 15.09.2013 at about 8.30 p.m. when P.W.4 was insider the Bar, somebody picked up quarrel with him and those persons damaged the Bar and hence, he sustained injuries. He has also stated that, the P.W.2 also sustained injuries in the incident and both of them taken treatment in the Wenlock hospital. The P.W.2, P.W.4 and Babanna sustained injuries and therefore, he filed the first information before the Police. He has deposed that the police came to the Bar and drawn the panchanama in Ex.P.2. The P.W.2 has deposed that when he was in the Bar of P.W.1 many people assembled and one of them thrown stone towards him and therefore, himself and P.W.4 sustained injuries and took treatment in the hospital.
10. P.W.3 has deposed that on 15.09.2013 at about 8.30 p.m. the P.W.4 was inside the Bar, about 25 persons came to the Bar and there was quarrel between P.W.4 and those 25 persons. He has deposed that such 25 persons damaged the Bar and he took treatment in Wenlock hospital for the injuries sustained in the incident. The P.W.1 to 3 have not stated the name of any of the accused of this case and even not identified the accused. The prosecution treated these witnesses hostile and cross examined. The P.W.1 to 3 have totally denied the allegation that the accused of this case have quarrelled with P.W.4, assaulted P.W.7 to 7, damaged the Bar and committed dacoity of Rs.2,000/- from the Bar.
11. The P.W.4 to 7 have totally denied the incident itself. The P.W.8 and P.W.9 have deposed that they have not witnesses the incident. The -6- CRL.P No. 11978 of 2022 P.W.4 to 9 have been cross examined by the prosecution and even in the cross-examination the P.W.4 to 9 denied the allegation made by the prosecution. Therefore, there is no evidence against the accused that they have formed unlawful assembly, committed criminal trespass in the Bar of P.W.1, voluntarily caused hurt to P.W.1 to 7 and committed dacoity of Rs.2,000/- from the Bar of P.W.1. Hence, the accused cannot be convicted for the offences alleged against them because of insufficient evidence. Accordingly, I answer these points in the Negative and proceed to pass the following:
ORDER Acting under Section 232 of Code of Criminal Procedure the accused No.1 to 11, 14, 16 to 18 and 21 are acquitted for the offences punishable under Section 143, 147, 148, 448, 323, 324, 395, 427 r/w 149 of Indian Penal Code.
Their bal bond stands cancelled.
Office is directed to retain the material objects as they are required in split up cases."
9. The reason for acquitting the other accused as afore-quoted is the fact that the complainant himself had turned hostile and other witnesses had not supported the charge sheet. If the complainant had turned hostile and it resulting in acquittal of the aforesaid accused, it cannot but be said that the same would be applicable to the petitioner as well, notwithstanding the fact that he was not available for trial. It is not the case of sending the petitioner for trial for the very same offences and result being the same as is ordered on 01.12.2021 in S.C.No.103/2018. It would be an exercise in futility to permit further trial, which would be of no utility and be a waste of judicial time.
10. 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:
-7- CRL.P No. 11978 of 2022"12. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that petitioner/accused was never 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."-8- CRL.P No. 11978 of 2022
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:
"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 -9- CRL.P No. 11978 of 2022 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. In 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
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CRL.P No. 11978 of 2022similar, identical and in fact, it is replica of charge made against accused Nos.1 to 23 and 25 to 33, who15 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 RAJAK vs. STATE OF WEST BENGAL reported in (2007) 15 SCC 305
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CRL.P No. 11978 of 2022where 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.
In the light of there being no evidence against any of the accused and the split up charge against the petitioner being tried now before the learned Sessions Judge would become an exercise in futility. In the teeth of there being no evidence or a specific charge against this petitioner, that was
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CRL.P No. 11978 of 2022not charged against others, I deem it appropriate to obliterate the proceedings against the petitioner."
In the light of the allegations against the petitioner and other accused being similar; the split charge sheet having set at naught against accused No.13; all other accused having been acquitted, and the afore-extracted order of this Court, the petitioner is entitled to succeed in the subject petition for the very same reasons rendered by this Court (supra).
5. For the aforesaid reasons, the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The proceedings against the petitioner/accused No.1 in C.C.No.2414/2018 pending before the JMFC
- III, Mangaluru, D.K., stands quashed.
Sd/-
JUDGE nvj List No.: 1 Sl No.: 105 CT:SS