Mohammed Habeeb @ Habeeb Mia @ Habeeb vs State By Sadashivnagar Police Station on 18 November, 2020

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Karnataka High Court

Mohammed Habeeb @ Habeeb Mia @ Habeeb vs State By Sadashivnagar Police Station on 18 November, 2020

Bench: John Michael Cunha

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF NOVEMBER, 2020

                           BEFORE

        THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

       CRIMINAL REVISION PETITION NO.936/2019

BETWEEN:

MOHAMMED HABEEB @
HABEEB MIA @ HABEEB
S/O GHANI MIYA,
AGED ABOUT 36 YEARS,
R/O MUSLIMPURA,
JOGENDRA NAGAR,
AGARTAL, STATE: TRIPURA - 799 004.       ... PETITIONER

(BY SRI MOHAMMED TAHIR, ADVOCATE)

AND:

STATE BY SADASHIVNAGAR POLICE STATION
BANGALORE CITY
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX BUILDING
BANGALORE - 560 001.                   ... RESPONDENT

(BY SMT. K.P. YASHODHA, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED U/S 397 AND
401 OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED     23.08.2018,   AT    ANNEXURE-F     AGAINST     THE
ACCUSED/PETITIONER    AND    APPRECIATE    THE   DISCHARGE
APPLICATION FILED BY THE PETITIONER/ACCUSED BEFORE THE
TRIAL COURT AT ANNEXURE-D TO DISCHARGE HIM FROM THE
CHARGE SHEET FILED IN SC NO.953/2017 PENDING IN THE FILES OF
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34TH ADDITIONAL CITY CIVIL COURT AT BENGALURU, IN THE CRIME
NO.110/2005 REGISTERED BY THE RESPONDENT POLICE AND THIS
PETITIONER ARRAYED AS ACCUSED NO.7 FOR THE ALLEGED
OFFENCES UNDER SECTIONS 120(B), 121, 121(A), 122, 123, 307,
302 OF IPC AND SECTIONS 25 AND 27 OF INDIAN ARMS ACT UNDER
SECTIONS 3, 4, 5 AND 6 OF EXPLOSIVE SUBSTANCES ACT AND
SECTIONS 10, 13, 16, 17, 18, 19 AND 20 OF UNLAWFUL ACTIVITIES
(PREVENTION) ACT, 1967.

      THIS CRIMINAL REVISION PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

Though this matter is listed for orders, with the consent of the learned counsel for the petitioner and the learned HCGP, it is taken up for final disposal.

2. Petitioner is before this Court challenging the order on the discharge application filed by him under section 227 of the Code of Criminal Procedure Code.

3. Petitioner is arrayed as A7 in the charge sheet laid by the respondent alleging commission of offences punishable under Sections 120B, 121, 121A, 122, 123, 307, 302 of IPC, 25 and 27 of the Indian Arms Act and 3, 4 and 3 5 and 6 of Explosive Substances Act and 14 and 10,13, 16, 17, 18 & 20 of UAPA 1967.

4. A reading of the impugned order goes to show that the Special Court has summarized the facts of the case and in the reasoning part of the order in paragraph 20 has observed thus :-

"20. This ruling is not applicable to the facts of the present case. The power can be exercised under Section 227 of Cr.P.C. by the Magistrate only but not the Sessions Judge. On perusal of charge sheet papers the accused No.7 has murdered the scientist Mr.M.C.Puri and caused injury by opening of A.K.56 rifle. In order to prevent the country India, to stop the same, which was going in the progressive field and to held up all the scientific activities at Indian Institute of Science, Bengaluru the scientists are all making efforts to bring the country in a forward path by making Chandrayan and use of rockets. At this stage the accused with their motive intention the desired goal to finish off the scientist, chosen the said spot. There is a bulky charge-sheet against the accused narrating incident against the accused.

There is a gravity of offence, intention and motive might be there by these accused. Unless the trial is opened, the court cannot decide this application at this premature stage and that too before framing of charge against the accused. The hearing before charge is not at all took place. In those circumstances of the case, accused has filed application for discharge under Section 229 of Cr.P.C. Same is not applicable to the facts of the case and the rulings relied upon bythe accused counsel is not applicable to the facts of the case. Hence the court comes to conclusion that to answer Point No.1 in the negative".

5. From the above observation it is clear that the Special Court has not considered the facts of the case and has not arrived at a satisfaction as to whether the allegations made in the charge sheet prima-facie constitute the ingredients of the offences charged against the petitioner. The impugned order reveals that the Special Court has not even heard the parties on merits of the application, instead has proceeded to reject the same as 5 premature. In view of this conclusion opportunity ought to have been reserved to the petitioner to move the application seeking discharge at appropriate stage. Since the application has been rejected without even considering the material produced by the prosecution, the impugned order cannot be sustained.

6. Accordingly, the petition is allowed. The impugned order is set aside. The application filed by the petitioner under Section 227/229 of Cr.P.C. shall be kept pending until the hearing of the parties before charge. Appropriate orders shall be passed on the application at the time of hearing on charge.

As the petition is disposed of, I.A.2/2019 is also disposed of.

Sd/-

JUDGE rs

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