Karnataka High Court
Bhadra @ Veerabadraiah vs State Of Karnataka on 2 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 6966 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 6966 OF 2022
BETWEEN:
1. BHADRA @ VEERABADRAIAH
S/O C S NAGARAJAPPA,
AGED ABOUT 33 YEARS,
R/AT ITTAMADU, BENGALURU-560085
PRESENTLY R/AT NO.70,
HUNASAVADI VILLAGE,
PURAVARA HOBLI,
MADHUGIRI TALUK,
TUMAKURU DISTRICT-572175
...PETITIONER
(BY SRI. RAVIKUMAR G H., ADVOCATE)
AND:
Digitally signed by
PADMAVATHI B K 1. STATE OF KARNATAKA
Location: HIGH
COURT OF
KARNATAKA
SUBRAMANYAPURA P S,
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BANGALORE-560001
...RESPONDENT
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CRL.P No. 6966 of 2022
(BY SRI. K.S. ABHIJITH, HCGP)
THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE
FOR THE PETITIONER PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN S.C.NO.1671/2021 ON THE FILE OF LXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH-64), PENDING AGAINST THIS PETITIONER FOR AN
OFFENCE P/U/S 399 AND 402 OF IPC.
THIS PETITION COMING ON ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel, Sri. G.H. Ravikumar, appearing for the petitioner and Sri. K.S. Abhijith, learned HCGP appearing for the respondent - State.
2. The petitioner is before this Court calling in question the proceedings in S.C.No.1671/2021 for offences punishable under Sections 399 and 402 of the IPC. The petitioner is accused No.6. On 19.01.2017, the respondent - police register a crime in Crime No.27/2017 against 8 persons for offences punishable under Sections 399 and 402 of the IPC. The police after investigation file a charge sheet and the case was then registered as C.C.No.23797/2017 and on its committal, becomes S.C.No.1343/2019.
-3- CRL.P No. 6966 of 20223. By an order dated 31.07.2018, after a full blown trial, the concerned court acquits accused Nos.1 to 4 of the offences so laid against them, which were the ones punishable under Sections 399 and 402 of the IPC.
Insofar as the present petitioner is concerned, he was not available for trial at the relevant point in time, when accused Nos.1 to 4 were tried and a split charge sheet against the petitioner was laid in S.C.No.1671/2021 and is now sought to be tried in S.C.No.1671/2021 for the very offences that were alleged against all the 8 accused i.e., the ones punishable under Sections 399 and 402 of the IPC. It is the continuance of the trial that drives the petitioner to this Court in the subject petition.
4. Learned counsel appearing for the petitioner submits that the allegations against all the accused are the same and after a full blown trial, accused Nos.1 to 4 were acquitted and the petitioner is now sought to be continued on account of his absence during the trial and on the strength of a split charge that is made as aforesaid and -4- CRL.P No. 6966 of 2022 submits that the proceedings ought to be quashed, as the evidence that would be brought before the Court in S.C.No.1343/2017 would be the same, this was considered and rejected by the concerned Court while acquitting accused Nos.1 to 4.
5. 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 .
6. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.
7. The afore-narrated facts are not in dispute. The solitary incident of preparation for commission of dacoity as obtaining under Section 399 or 402 Cr.P.C. becomes a crime in Crime No.27/2017 against 8 accused. All the 8 -5- CRL.P No. 6966 of 2022 accused were alleged of the same offence. Accused Nos.5 to 8 were not available for trial at the point when the trial was taken up and split charge sheet was issued against them. After a full blown trial, accused Nos.1 to 4 were acquitted by the learned Sessions Judge on 31.07.2018.
The reasons rendered by the learned Sessions Judge for acquitting accused Nos.1 to 4 are as follows:
"14. PW.1 is the complainant of this case. He clearly stated before Court regarding receipt of information, securing of his staff and panchas and went to the spot, conducted raid, arrested accused No.1 to 4 and recovered MOs.1 to 4 from the spot. Then he returned to the police station and handed over the accused persons, seized material objections, mahazar and report to the S.H.O. of their police station.
15. PW.2 has also given evidence in the line of PW.2 stating he accompanied PW.1 in the raid. PW.3 is the P.S.I., who received complaint from CW.1. He stated before the Court that on 19.01.2017, at about 3.30 p.m., A.S.I., Krishnamurthy/PW.1 produced accused No.1 to 4, seized material objects and mahazar and gave -6- CRL.P No. 6966 of 2022 report. Then he registered case in Cr.No.27/2017 against the accused persons of the offence punishable U/Secs.399 and 402 of IPC and sent F.I.R. to the Court. Thereafter, he subjected the seized materials object to P.F. Then arrested the accused persons, recorded their voluntary statements and sent them to the Court. Recorded the statements of witnesses and after completion of the investigation filed charge sheet against the accused persons, but, PW.3 has failed to identify the accused persons who were before the Court in his examination-in-chief. In the cross-examination he stated that he cannot identify the accused persons. This shows that the entire case is prepared in the police station only and moreover the complainant who has drawn the spot and seizure mahazar has not signed on the mahazar.
16. In this case no independent witnesses are examined before the Court by the prosecution to prove its case as alleged against accused No.1 to
4. Panchas for Ex.P.2 panchanama are not examined before the Court. Even though NBW issued police fails to execute NBW against them. CW.2 and CW.3 who are panchas to Ex.P.2 -7- CRL.P No. 6966 of 2022 panchanama are not only panchas, but they are also, independent witnesses to the raid and recovery of Mos.1 to M.O.4 from the spot by PW.1 under panchanama. Non-examination of CW.2 and CW.3 panchas made this Court to doubt the prosecution case and evidence given by PW.1 to PW.3. Hence, there is no any hesitation in coming to the conclusion that prosecution fails to prove Ex.P.2 recovery panchanama before the Court. When independent witnesses are not examined and recovery of MOs.1 to 4 is not proved then evidence given by PW.1 to PW.3 is not fit to be considered to connect the guilt of the accused. In view of the doubtful evidence given by PW.1 to PW.3 and non-examination of CW.2 and CW.3 panchas for recovery panchanama made this Court to disagree with the evidence given by PW.1 to PW.3 to connect the guilt of the accused. Whenever doubt arises in the mind of the Court about the case of the prosecution, accused persons are always entitled for benefit of doubt in their favour. Accordingly, by awarding benefit of doubt in favour of accused No.1 to 4, this Court come to the conclusion that prosecution has utterly failed to prove its case as -8- CRL.P No. 6966 of 2022 against accused No.1 to 4 as alleged in the charge sheet. Hence, Point No.1 and 2 is answered in the Negative.
17. Point No.3: In view of the discussion made above and the findings given on point Nos.1 & 2, I proceed to pass the following:
ORDER Accused No.1 to 4 are not found guilty of the offences punishable U/Secs.399 and 402 of IPC and they are acquitted U/Sec.235(1) of Cr.P.C.
Bail bonds of accused No.1 to 4 and that of their sureties stand cancelled.
MO.1 to MO.4 are ordered to be preserved till the disposal of the case against accused No.5 to 8."
8. Perusal at the reasons rendered by the concerned Court for acquitting accused Nos.1 to 4 would leave none in doubt that the evidence that was brought in by the prosecution in order to prove the allegations of Sections 399 and 402 of the IPC against all the accused -9- CRL.P No. 6966 of 2022 were the same. That having been declined to be accepted by the concerned Court and an order of acquittal being passed on the ground that the prosecution has miserably failed to prove the allegations against the accused beyond all reasonable doubt cannot now mean that the petitioner should be permitted to be tried in S.C.No.1671/2021, which would be an exercise in futility, of no utility, and be a waste of judicial time.
9. 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-
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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."
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:
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"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
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CRL.P No. 6966 of 2022Exs.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 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
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CRL.P No. 6966 of 2022might 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 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.
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CRL.P No. 6966 of 202217. 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 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:
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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.
10. 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 not charged against others, I deem it appropriate to obliterate the proceedings against the petitioner.
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CRL.P No. 6966 of 202211. For the aforesaid reasons, I pass the following:
ORDER i. Criminal Petition is allowed. ii. Proceedings in S.C.No.1671/2021 pending before the LXIII Additional City Civil and Sessions Judge, Bengaluru (CCH-64), stand quashed qua the petitioner.
Sd/-
JUDGE SJK List No.: 1 Sl No.: 5