Karnataka High Court
Mohamed Parvez vs State Of Karnataka on 23 March, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MARCH 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.868/2018
BETWEEN:
MOHAMED PARVEZ
S/O.LATE U.MOHIDDIN
AGED ABOUT 30 YEARS
R/AT NO.125, 2ND CROSS
JAKKASANDRA EXTENSION
1ST BLOCK, KORAMANGALA
BENGALURU
PERMANENT ADDRESS:
THUMBE VILLAGE
BHANTAWALA TALUK-575 001
MANGALURU DISTRICT
... PETITIONER
(By SRI.MOHAMED KHAN, ADV. FOR SRI.MOHAN
KUMARA, ADV)
AND
STATE OF KARNATAKA
BY KORAMANGALA POLICE
BANGALORE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
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HIGH COURT OF KARNATAKA
BANGALORE - 560 001.
... RESPONDENT
(BY SRI.CHETAN DESAI, HCGP)
THIS CRL.P. IS FILED U/S 482 OF CR.P.C.
PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
S.C.NO.1349/2015 PENDING ON THE FILE OF THE
HON'BLE LXV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AT BENGALURU FILED BY THE KORAMANGALA
POLICE FOR ALLEGED OFFENCE P/U/S 399 AND 402
OF IPC.
THIS CRL.P. COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.Mohamed Khan, learned counsel appearing on behalf of Sri.Mohan Kumara, for petitioner and learned HCGP who has accepted notice for Respondent. Perused the records.
2. The case of the prosecution is that on 05-08-2011 at about 10.20 p.m., while H.P.Nanjundaiah, PSI, Koramangala Police Station was on rounds has received credible information that in a vacant place on Chinmuni Nursery, Koramangala 4th Block , about 5-6 persons had -3- assembled with deadly weapons and were making preparation to commit dacoity of general public and after securing panchas, he visited the spot and apprehended the accused persons; seized the weapons like, iron rod, wooden clubs, knife and chilly powder and also Hyundai Accent Car bearing registration No.KA-03/MA-7339 and a case came to be registered in Crime No.384/2011 against them for the offences punishable under Sections 399 and 402 of IPC. On investigation, charge sheet has been filed in S.C.No.1349/2015 for the said offences against the petitioner and other accused persons and a committal order came to be passed by committing the case to the Sessions Court by the learned Magistrate.
3. It is the case of prosecution that on issuance of summons to appear before the Committal Court, the petitioner had not appeared and absconded and as such, NBW came to be issued against the petitioner which could not be executed.
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4. Per contra, learned counsel appearing for the petitioner has contended that the accused/petitioner had appeared before the jurisdictional Magistrate on all the dates of hearing, after obtaining bail. But he had not received summons from the Committal Court and as such, he could not appear before the Sessions Court. He would also draw the attention of the Court to a judgment rendered in S.C.No.760/2014 which was proceeded against accused No.3 who was tried by the Sessions Court on the same allegations as made against the petitioner/accused No.1, which has since ended in acquittal and as such claiming parity, he seeks for proceedings being quashed, as continuation of said proceedings would be abuse of process of the Court.
5. Per contra, Sri.Chetan Desai, learned HCGP appearing for the State would submit that quashing of the proceedings insofar as the petitioner is concerned would amount to granting premium to a person who was -5- absconding and as such he prays for rejection of the petition.
6. Having heard the learned advocates appearing for the parties and on perusal of the records it would disclose that allegations made against the petitioner and other accused persons are one and the same namely, they had assembled on 5-8-2011 at about 10.20 p.m., in a vacant place at Koramangala with deadly weapons to commit dacoity of general public. On account of split up charge sheet having been filed against petitioners trial had proceeded against accused No.3. Learned Sessions Judge after evaluating the evidence tendered by the prosecution has arrived at a conclusion that prosecution had failed to prove the allegations made against accused No.3. In fact, learned Sessions Judge has held that C.W.1/Investigating Officer who is stated to be the first informant and arrested the accused 1 to 3 and recovered M.Os. 1 to 5 under mahazar has not been examined. The other two accused -6- persons had not been secured before the trial Court inspite of taking effective steps. Even C.W.2 and C.W.3 who were said to be eye witnesses to the alleged incident were not examined. For these reasons, learned Sessions Judge arrived at conclusion that prosecution had failed to prove the guilt of accused (A-3) beyond all reasonable doubt. Said judgment has reached finality.
7. Petitioner herein who is accused No.1 is similarly placed with that of accused No.3 who has already been acquitted in S.C.No.760/2014 by judgment dated 30-04-2016 passed by Sessions Court. Hon'ble Apex Court in the case of CENTRAL BUREAU OF INVESTIGATION v/s AKHILESH SINGH reported in AIR 2005 SCC 268 has held that 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 has been further held in said case that discharge of a co- -7- accused by the High Court by holding that no purpose would be served in further proceeding with the case, is just and proper. The said ruling has been followed by this Court in catena of judgments and to quote a few are (1) (2001) 3 Kant.LJ 551 in the case of MOHAMMED ILIAS v/s STATE OF KARNATAKA; (2) ILR 2005 KAR 1822 in the case of THE STATE OF KARNATAKA v/s K.C.NARASEGOWDA.
8. In the instant case also, as already held above and at the cost of repetition, case of the prosecution as alleged against accused No.3 is similar and identical to the allegations made against accused No.1 viz., all the accused had assembled with deadly weapons to commit dacoity. Allegations made against accused No.3 has not been proved and accused No.3 having been acquitted, continuation of further proceedings against the present petitioner/accused No.1 on same set of facts would not -8- serve any purpose. In fact it would be waste of judicial time apart from same being abuse of process of law.
9. Hence, the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii) Proceedings pending against accused No.1 in S.C.No.1349/2015 (Split-up charge sheet) on the file of LXV Additional City Civil and Sessions Judge at Bengaluru City for the offences punishable under Sections 399 and 402 of IPC is hereby quashed and petitioner (A-1) is acquitted of the said offences.
SD/-
JUDGE mpk/-*