Karnataka High Court
Harshith Babugudde vs State Of Karnataka on 27 June, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:23844
CRL.P No. 13852 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 13852 OF 2023
BETWEEN:
HARSHITH BABUGUDDE,
S/O B. CHANDRASHEKAR,
AGED ABOUT 32 YEARS,
R/AT SRI. GANESH HOUSE,
GANDHINAGAR, DOTA, KUNTHBAIL, KAVOOR
MANGALORE, D.K. DISTRICT - 575 015.
...PETITIONER
(BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY INSPECTOR OF POLICE STATION
ECONOMIC AND NARCOTIC CRIME
Digitally signed POLICE STATION, MANGALORE,
by NAGAVENI REPRESENTED BY STATE PUBLIC PROSECUTOR
Location: HIGH HIGH COURT OF KARNATAKA,
COURT OF
KARNATAKA BANGALORE - 560 001.
2. MOHAN L.,
S/O LATE LINGAPPA SHETTY,
AGED ABOUT 51 YEARS,
ASSISTANT SUB-INSPECTOR OF POLICE,
CITY CRIME BRANCH (C.C.B),
MANGALORE CITY, D.K. DISTRICT - 575 001.
...RESPONDENTS
(BY SRI. THEJESH P, HCGP FOR R1;
R2 - SERVED)
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NC: 2024:KHC:23844
CRL.P No. 13852 of 2023
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER
IN SPL.C.NO.45/2022 (CR.NO.19/2020 OF ECONOMIC AND
NARCOTIC CRIME POLICE STATION) FOR THE OFFENCE
P/U/S.21, 21(C) OF NDPS ACT 1985 PENDING ON THE FILE OF
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT D.K.,
MANGALURU.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in Spl.C.C.No.45/2022 pending before the Principal District and Sessions Judge, Dakshina Kannada, Mangalore for offences punishable under Sections 21 and 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act').
2. Heard the learned counsel, Sri. Nishit Kumar Shetty, appearing for the petitioner, the learned High Court Government Pleader, Sri. Thejesh P., appearing for respondent No.1 and have perused the material on record.
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3. Brief facts that leads the petitioner before this Court in the subject petition, as borne out from the pleadings, are as follows:
A complaint is registered on 09.08.2020, which becomes a crime in Crime No.19/2020 for offences punishable under Sections 21 and 21(C) of the Act. The police after investigation file a charge sheet in the matter and the matter was set to trial in Spl. Case Nos.103/2021 and 118/2021. The petitioner was arrayed as accused No.3 in the aforesaid case. While the trial was continued against all others, since the petitioner on few dates, when the charge was sought to be framed by the learned Sessions Judge, had remained absent, owing to his absence, the charge sheet was split against the petitioner.
4. It transpires that other accused Nos.1, 2 and 4 in Spl. Case Nos.103/2021 and 118/2021 were acquitted off the offences on the ground that the prosecution had failed to drive home the allegations against those accused beyond all reasonable doubt. The order of acquittal was passed on 24.06.2023. Owing to the absence of the petitioner, as observed hereinabove, the charge sheet had been split up against him and the trial is continued. The commencement of -4- NC: 2024:KHC:23844 CRL.P No. 13852 of 2023 the proceedings now, is what drives the petitioner to this Court in the subject petition.
5. It is not in dispute that the acquittal order passed in favour of accused Nos.1, 2 and 4 has become final. The petitioner is accused No.3 in Spl. Case No.118/2021 and is said to be in custody on account of the charge sheet against him being split up owing to his absence.
6. The ground on which the petitioner knocks at the doors of this Court is that, accused Nos.1, 2 and 4 who have been alleged of the aforesaid offences have been acquitted off on the ground that the prosecution fails to bring home the guilt of accused Nos.1, 2 and 4 beyond all reasonable doubt. If the prosecution fails to bring home the guilt of accused Nos.1, 2 and 4, the same reasons rendered would enure to the benefit of the petitioner as well. Merely because the petitioner - accused No.3 was not available for trial, the trial now cannot be permitted to continue as the acquittal of the accused Nos.1, 2 and 4 has become final.
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7. In the considered view of this Court, if further proceedings are permitted to continue, it would become an exercise in futility with no utility except waste of judicial time.
If the reasons rendered for acquittal of accused Nos.1, 2 and 4 are noticed, there are no chances holding the petitioner guilty of any offences in the split up charge sheet.
8. The view of mine, in this regard, is fortified by the judgment rendered by the Co-ordinate Bench of this Court in Crl.P.No.3017/2022 disposed on 22.04.2022, has held as follows:
"9. The afore-narrated facts are not in dispute. What lead to registration of the crime against the accused was that while patrolling in the forest the Circle Inspector receives credible information that sandalwood was being smuggled in a car at Holehonnur Road. The car was intercepted at about 12.15 a.m. and due to darkness a person fled and another person who was in the car was arrested. Sandalwood pieces were recovered. The petitioner was arraigned as accused No.1 and one Munavar Pasha as accused No.2. The petitioner along with accused No.2 was arrested and later on enlarged on bail. Since the petitioner was absconding, a split charge sheet was filed against accused No.2 and the trial was conducted. Throughout the trial, the petitioner was missing and an NBW was issued in LPR 6/2021 and the -6- NC: 2024:KHC:23844 CRL.P No. 13852 of 2023 Station House Officer arrested the petitioner on 24.02.2022. It is after that a split charge sheet is filed against the petitioner in C.C.No.770/2022.
10. What requires to be noticed now is the judgment rendered by the trial Court in the case of accused No.2 in C.C.No.1123/2010. The trial Court, by its order dated 29.10.2011, splitting up charges against others holds trial against accused No.2 and renders its judgment on 29.10.2011 in S.C.No.73/2011. The trial Court considers the entire evidence and renders its findings that there was no material to show that when the sample pieces were drawn out of the bulk of the material seized. It is germane to notice the reason rendered by the learned Sessions Judge while acquitting the accused No.2 and it reads as follows:
"10. Point No.1 to 3:-
The evidence is likely to overlap and interconnected to each other and therefore, all the points are taken together for discussion.
11. In order to substantiate the charge, the prosecution has examined in all 8 witnesses and PW.1 to 8 and got marked 8 documents at Ex.P.1 t P.8 and also got marked M.O.1.
12. The prosecution has examined PSI., Vijayaprasad as PW.8 and M. Janardhan-Police Official as PW.6. Both the witnesses have stated in their evidence that on 15.02.2003 as per the credible information received, the PSI., of Rural Police Station, Bhadravathi secured the presence of panchas-Jagadish and Manjappa -7- NC: 2024:KHC:23844 CRL.P No. 13852 of 2023 and proceeded towards Girish Saw-Mill situated on Bhadravathi-Holehonur Road, they were searching the vehicles in order to detect the sandal wood theft case. At about 12.50 a.m., a white vehicle came towards the saw- Mill from Bhadravathi side and the vehicle was stopped. They have stated that one of the persons ran away and the other person by name Zakeerkhan was arrested. Upon enquiry, he has disclosed that one Munna resident of Koppa had run away. They have deposed that about 9 bags containing sandalwood roots, chips and billets were seized. The persons did not have any valid pass or permit to transport the same and they were seized. A mahazar was drawn and a complaint was lodged in the Police Station.
13. The pancha witnesses to the seizure mahazar are examined as PW.1 & 2. They have stated in their evidence that they have signed the mahazar in the police station and they have further deposed that the sandal wood was not seized in their presence. The witnesses are treated as hostile and the case of prosecution has been suggested to the witnesses and the witnesses have denied the suggestions.
14. PW.4-V. Thimmappa-ASI., has stated in his evidence that in the intervening night between 15th & 16th February 2003, he has registered a complaint and drawn FIR., and thereafter, the investigation was taken over by the PSI.
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15. The Range Forest Officer of Bhadravathi is examined as PW.5. He has stated in his evidence that on 16.02.2003 he has examined the seized properties in this case and certified that they were sandal wood chips, billets etc., and he has issued certificate as per Ex.P.8.
16. PW.8-Vijayaprasad has stated about the investigation carried out by him. Thereafter, Krishnamurthy-PW.7 has also deposed that he has investigated the matter and filed charge sheet against the accused.
17. The learned counsel appearing for the accused vehemently argued that none of the witnesses examined on behalf of the prosecution have identified the accused- Munna and there is no material to show how he is connected to the case. Further, the submission was made that the seized property itself is not available in this case.
18. I have perused the entire evidence adduced on behalf of the prosecution. As per the case of prosecution, one Zakeerkhan was arrested on the spot and Munna S/o. Nazeer Ahammed is said to have run away from the place. In this regard, PW.6-Janardhan-Head Constable and PW.8-Vijayaprasad-PSI., both have stated that one of the person had run away from the spot. But however, both the witnesses have not stated that the accused before the court had run away from the spot. The complaint mentions that Zakeerkhan had informed about the other person as Munna resident of Koppa.
-9-NC: 2024:KHC:23844 CRL.P No. 13852 of 2023 On perusal of the charge sheet, absolutely there is no material to show how accused No.2-Munna was identified as the person who had run away from the spot. PW.8 has stated in his evidence that he is not in a position to identify the accused, who had run away from the spot. The other witnesses have also not identified the accused. Therefore, in the absence of any such identification evidence, the prosecution is unable to connect the alleged offence to the accused, who is facing the trial.
19. Apart from that, it may be noted that the prosecution has produced sandal wood chips contained in a bag as sample. But however, there is no material to show when the sample pieces were drawn out from the bulk of the material seized and those factors have not been placed before the court. So-called sample produced do not reflect that it was the sample removed at the spot and or that its marking is made at the spot. Therefore, on that count also, the prosecution is unable to connect the incident to the accused facing trial. The other evidence available in this case will not help the prosecution in establishing the guilt of the accused. As mentioned above, the accused No.2 is said to have run away from the spot. The details of his identification marks has not been established by investigation to know how this man was identified. Under the circumstances, the prosecution has failed
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NC: 2024:KHC:23844 CRL.P No. 13852 of 2023 to prove the guilt of the accused beyond all reasonable doubt."
(Emphasis added) The learned Sessions Judge, as afore-quoted, clearly holds that the prosecution has failed in establishing the guilt of the accused.
11. If the prosecution has failed in establishing the guilt of the accused, the petitioner being accused No.1 and the other being accused No.2 and the crime arising out of the very same set of facts and the very same evidence, the finding would enure to the benefit of the petitioner as well, as paragraph 19 (supra) makes it abundantly clear that the prosecution was unable to connect the incident itself to the accused facing trial. If the prosecution has failed to connect the incident to the accused, it would be equally applicable to accused No.1, the petitioner, as it was applicable to accused No.2.
12. Though, the petitioner was absconding throughout the trial and did not face the rigmarole of the procedure of a criminal trial, one fact cannot be lost sight of is, the right of liberty of a person which is a fundamental right. When this Court finds that the other accused who stood on the same footing not being convicted for the reason that there was no evidence to link the incident to the accused, directing trial to be conducted against the petitioner on the ground that he was absconding, will result in miscarriage of justice.
13. If all the accused were available for trial except the petitioner and those accused had been convicted of
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NC: 2024:KHC:23844 CRL.P No. 13852 of 2023 the offences, then it would be, "a yes" for conducting a trial against the petitioner. But, what has happened is the opposite, the accused No.2 has been acquitted. Therefore, in my considered view, the trial against accused No.2, in the teeth of the finding of the learned Sessions Judge in favour of accused No.2 and the order of the learned Sessions Judge having become final qua accused No.2, further trial against the petitioner cannot be permitted to be continued.
14. 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:
"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:
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NC: 2024:KHC:23844 CRL.P No. 13852 of 2023 "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."
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
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NC: 2024:KHC:23844 CRL.P No. 13852 of 2023 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 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
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NC: 2024:KHC:23844 CRL.P No. 13852 of 2023 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 similar, 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
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NC: 2024:KHC:23844 CRL.P No. 13852 of 2023 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 where under Apex Court after noticing the facts obtained in the said case, had held that benefit of acquittal, should be
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NC: 2024:KHC:23844 CRL.P No. 13852 of 2023 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.
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15. In the case at hand, the petitioner was taken into custody on 24.02.2022 and is in custody for the last two months. The facts obtaining in the case at hand; the order of the learned Sessions Judge acquitting accused No.2 on the same set of facts and on the ground that there was no evidence to link the incident with the accused; the said order of acquittal having become final; the order passed by the Co-ordinate Bench (supra), a trajectory of all the aforesaid would lead to an unmistakable conclusion that the petitioner cannot be permitted to undergo trial and I deem it appropriate to obliterate the proceedings against the petitioner accepting the subject petition filed under Section 482 of the Cr.P.C."
In the light of the fact obtaining in the case as observed hereinabove and the judgment rendered by the co-ordinate bench of this Court (supra), it is germane to notice the judgment of acquittal passed in favour of accused Nos.1, 2 and 4.
9. The judgment of acquittal passed against accused Nos.1, 2 and 4 in Spl. Case Nos.103/2021 and 118/2021, read as follows:
"26. On appreciation of entire evidence on record, this Court finds that it is very difficult to accept the case of prosecution that on 09.08.2020, on the credible information received by P.W2, a crime has been registered by P.W7. Further, P.W7 by securing the
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NC: 2024:KHC:23844 CRL.P No. 13852 of 2023 presence of Gazetted officer, panchas and police officials proceeded to the place of information and catch hold accused Nos.1 and 2. Thereafter, search of person of accused Nos. 1 and 2 has been made and at that time, found possession of 87 pills of MDMA by accused No.1 and 33 pills of MDMA by accused No.2. Further, seizure of the contraband from possession of accused Nos.1 and 2 under Mahazar in the presence of panchas. Absolutely there is no convincing evidence to show that the absconded accused No.3 has sent the contraband to accused No.4 who in turn supplied to accused Nos.1 and 2 for the purpose of sale. For the purpose of securing accused No.3, except producing the report (Ex.P23) in this case, the Investigating Officer has not made any efforts. As per the evidence of P.W7, on the basis of disclosure by accused Nos.1 and 2, he came to know that accused No.3 supplied contraband to accused No.4 who in turn sent to accused Nos.1 and 2 for sale. Even no contraband has been seized from the possession of accused No.4, the Investigating Officer placed CDR (Ex.P8, Ex.P9) stated to be pertains to accused Nos.1 and 4 regarding communication/transaction between them regarding the contraband. Except production of CDR, there is no other supporting evidence in this regard. Even it is not established that whether the CDR (Ex.P8 and Ex.P9) pertains to the mobile of accused Therefore, on considering the entire case of the prosecution, this Court holds that the prosecution has fails to bring home the guilt of accused by placing cogent, acceptable, trustworthy evidence. Hence, for these reasons, point No.1 is answered in the Negative."
For all the aforesaid reasons and the judgment rendered by the co-ordinate bench of this Court (supra), I deem it appropriate to quash the proceedings against the petitioner and set him at liberty.
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10. For the aforesaid reasons, the following:
ORDER i. Criminal petition is allowed.
ii. Proceedings pending in Spl. C.C.No.45/2022
(Crime No.19/2020) before the Principal
District and Sessions Judge at D.K.,
Mangalore, stand quashed qua the petitioner.
Sd/-
JUDGE SJK List No.: 1 Sl No.: 52 CT: BHK