Karnataka High Court
C.V. Muniraju vs The State Of Karnataka on 15 July, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 5884 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 5884 OF 2022
BETWEEN:
C.V. MUNIRAJU
S/O H K VENKATAPPA
AGED ABOUT 60 YEARS
R/AT SREE RENUKA NILAYA
4TH MAIN, 4TH CROSS
JAYANAGARA WEST,
SHETTIHALLI MAIN ROAD
TUMKURU TOWN
TUMKUR DISTRICT - 571213
...PETITIONER
(BY SRI. PRATHEEP K C., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY TIPTUR POLICE STATION
TUMKURU DISTRICT
REP. BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 01
Digitally signed
by PADMAVATHI
BK
2. KRISHNA URS
Location: HIGH
COURT OF S/O LATE THIMMAPPA RAJ URS
KARNATAKA
AGED ABOUT 58 YEARS
MANAGER, SRI RAM CHIT FUNDS COMPANY
TIPTUR BRANCH, B H ROAD
TIPTUR TOWN
TUMKUR DISTRICT - 13
...RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1;
SRI. P.N. RAJESHWARA, ADV. FOR R2)
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CRL.P No. 5884 of 2022
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE
ENTIRE PROCEEDINGS AGAINST THE PETITIONER IN
C.C.NO.895/2018 (CR.NO.318/2008) OF TIPTUR TOWN P.S.,
TUMKURU DISTRICT FOR THE OFFENCE P/U/S 420, 408, 409 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question the proceedings in C.C.No.859/2018, which arose out of Crime No.318/2008 for offences punishable under Section 420, 408, 409 of IPC on the file of the Senior Civil Judge and J.M.F.C., Tiptur.
2. The petitioner is accused No.1. The second respondent is the complainant - Manager, Sriram Chits Pvt. Ltd.
The allegation against accused Nos.1 and 2, were that they have misappropriated certain amount belonging to the Company. The complaint so registered against the petitioner became a crime in Crime No.318/2008 and on filing the charge sheet, the case is registered as C.C.No.455/2010. Since the petitioner was not available at the relevant point of time to conclude the trial, a split charge sheet was laid against the petitioner in C.C.No.859/2018.
-3- CRL.P No. 5884 of 20223. In the meantime, the learned Magistrate by his order dated 31.01.2020, acquitted accused No.2 of the offences so alleged on the ground that the prosecution has miserably failed to prove the guilt beyond all the reasonable doubt. The said order of acquittal passed in favour of accused No.2 has become final. The case against the petitioner is sought to be continued in split charge sheet in C.C.No.859/2018. The allegation against both the petitioner and accused No.2 were the same i.e. misappropriation of funds. Accused No.2 was the Accounts Officer and the petitioner was the Assistant Manager of the branch in which the allegation of misappropriation of funds had been laid.
4. The learned Magistrate by his order dated 31.01.2020 has acquitted accused No.2. The reasons rendered by the learned Magistrate to acquit accused No.2 are as follows:
" 13. ಾನ ಎ. . . ರವರು ಈ ಾ ಯನು ಪ ಕೂಲ ಾ ಂದು ಪ ಗ , ತಮ ಾ ಸ"ಾ#ನ#$ ರೂ. 9,78,133/- ಹಣವನು ದುರೂಪ'ೕಗ ಆ*ದ ಬ,ೆ. ತಮ,ೆ /0ರುತ12ೆ ಎಂದು ಸೂ3 ದರು. ಅ5'ೕಜ7ೆ,ೆ ಸ8ಾಯ"ಾಗುವಂತಹ 9ಾವ:2ೇ ಅಂಶಗಳನು 8ೇ/ ರುವ:0ಲ$. ಇವರ ಈ ಾ >ಂದ ಆ?ೋ ತ @ತಸA?ೆಂದು BಣC>ಸDಾಗುವ:0ಲ$.-4- CRL.P No. 5884 of 2022
14. ಈ ಪ ಕರಣದ ಾ ಾ . ಾ 3 EೇತF ಕು ಾG ಾ ಯನು ಪ ಗ 2ಾಗ ಇವರು H ೕ?ಾI 3J ಫಂLM ಕಂಪBಯ ಅNೌಂPೆJ ಆ*ದುQ, ಅವರು ತಮ ಮುಖ SEಾರTೆಯ#$ ಅ5'ೕಜ7ೆಯ ಪ ಕರಣNೆU ಕೂಲ"ಾ* ಾ ನುV0ರುWಾ1?ೆ. ಅವರು ತಮ ಮುಖ SEಾರTೆಯ#$ ಸಂ ೆAಯ#$ ಾ 7ೆYZಂJ Pೆ[B ಆ* Nೆಲಸ ಾಡು 1ದQರು, 8ೊಸ 3ೕ ಾ ರಂಭ"ಾದ?ೆ ಅದನು 8ಾ^ಸುವ Nೆಲಸ ಅವರ2ಾQ*ತು1. ಆ?ೋ ,ಾ ಹಕ ಂದ ಬಂದ ಹಣವನು ಪ_ೆದು ತುಂಬುವ Nೆಲಸವನು ಾಡು 1ದQರು. ಅವರು 2008-09 ರ#$ ಒಂದು ವಷC Nೆಲಸ ಾVರುWಾ1?ೆ. b9ಾCದು2ಾರರು ಅವ ,ೆ ಏನು 8ೇ/ರುವ:0ಲ$. ಆ?ೋ ಹಣ ದುರೂಪ9ಾಗ ಾVದ SEಾರ ನನ,ೆ ,ೊ ರ 1 ುವ:0ಲ$. 7ಾನು dೕ#ೕಸ ,ೆ 8ೇ/Nೆ Nೊ eರುವ:0ಲ$ ಎಂದು ನುV0ರುWಾ1?ೆ. ಾನ ಎ. . . ರವರು ಈ ಾ ಯನು ಪ ಕೂಲ ಾ ಂದು ಪ ಗ , ತಮ ಾ ೕ ಸ"ಾ#ನ#$ ರೂ. 9,78,133/- ಹಣವನು ದುರೂಪ'ೕ ದುರೂಪ'ೕಗಗ ಆ*ದ ಬ,ೆ. ತಮ,ೆ /0ರುತ12ೆ ಎಂದು ಸೂ3 ದರು. ಅ59ಾಜ7ೆ,ೆ ಸ8ಾಯ"ಾಗುವಂತಹ 9ಾವ:2ೇ ಅಂಶಗಳನು 8ೇ/ ರುವ:0ಲ$. ಇವರ ಈ ಾ >ಂದ ಆ?ೋ ತ @ತಸ1?ೆಂದು BಣC>ಸDಾಗುವ:0ಲ$.
15. ಈ ಪ ಕರಣದ ಾ ಾ . ಾ 4 7ಾಗ?ಾY 8ಾಗೂ ಾ . ಾ. 5 ರSೕf ರವರ ಾ ಯನು ಪ ಗ ೕ?ಾI 2ಾಗ ಇವರು H ೕ?ಾ I 3JM ಫಂLM 2 ಕಂಪBಯ ಾNೆC ಂg ಆbೕಸG ಮತು1 ಕDೆhF ಅ ೆeಂJ ಆ*ದುQ, ತಮ ಮುಖ SEಾರTೆಯ#$ ಅ5'ೕ ಅ5'ೕಜ7ೆಯ ಜ7ೆಯ ಪ ಕರಣNೆU ಪ ಕೂಲ"ಾ* ಾ ನುV0ರುWಾ1?ೆ.
16. ಈ ಪ ಕರಣದ ಾ ಾ . ಾ 6 ಯ ೕf 8ಾಗೂ ಾ . ಾ. 7 ನ?ೇಂದ ರವರ ಾ ಯನು ಪ ಗ 2ಾಗ ಇವರು H ೕ?ಾI 3JM ಫಂLM 2 ಕಂಪBಯ ಕDೆhF ಅ _ೆವಲiZಂJ ೆeಂJ ಮತು1 _ೆವಲiZಂJ ಆbೕಸG ಆ*ದುQ, ಅ5'ೕಜ7ೆಯ ತಮ ಮುಖ SEಾರTೆಯ#$ ಅ5'ೕ ಜ7ೆಯ ಪ ಕರಣNೆU ಪ ಕೂಲ"ಾ* ಾ ನುV0ರುWಾ1?ೆ.-5- CRL.P No. 5884 of 2022
17. ಈ ಪ ಕರಣದ ಾ ಾ . ಾ 8 kೇಖG ರವರ ಾ ಯನು ಪ ಗ 2ಾಗ ಇವರು B. . 61 ಪಂಚ7ಾZಯ ಪಂಚ?ಾ*ದುQ, ತಮ ಮುಖ SEಾರTೆಯ#$ ಅ5'ೕಜ7ೆಯ ಪ ಕರಣNೆU ಪ ಕೂಲ"ಾ* ಾ ನುV0ರುWಾ1?ೆ.
18. ಈ ಪ ಕರಣದ ಾ ಾ . ಾ 9 ಕೃಷnಮೂ C, ಾ . ಾ. 10 ಕು ಾG 8ಾಗೂ ಾ . ಾ 11 ಕೃಷn,ೌಡರವರ ಾ ಯನು ಪ ಗ 2ಾಗ ಏoೆಂJ ಇವರು H ೕ?ಾI 3JM ಫಂLM ಕಂಪBಯ ಏoೆಂ J, ಕವ ಆbೕಸG 8ಾಗೂ ಕDೆhF ಅ ೆeಂJ ಆ*ದುQ, ತಮ ಮುಖ SEಾರTೆಯ#$ ಅ5'ೕಜ7ೆಯ ಅ5'ೕಜ7ೆಯ ಪ ಕರಣNೆU ಪ ಕೂಲ"ಾ* ಾ ನುV0ರುWಾ1?ೆ.
19. ಈ ಪ ಕರಣದ ಾ ಾ . ಾ 12 ಎ.ಎp.ಐ 8ಾಗೂ ಾ . ಾ. 13 .ಐ. ನಗರ rಾTೆ 8ಾಗೂ ಈ ಪ ಕರಣದ ತBsಾtNಾ ಗಳu ತಮ ಮುಖ SEಾರTೆಯ#$ ಈ ಪ ಕರಣದ#$ ತBsೆ ಾVದ ಬ,ೆ. Sವರ"ಾ* ನುV0ರುWಾ1?ೆ. ಆದ?ೆ ಇವರ ಈ ಾ >ಂದ ಾತ ಆ?ೋ ತ @ತಸA ಎಂದು BಣC>ಸDಾಗುವ:0ಲ$. ಏNೆಂದ?ೆ 9ಾCದು2ಾರರು ಮತು1 ಪ ಮುಖ ಾ ಗಳu ಅ5'ೕಜ7ೆ ಅ5'ೕಜ7ೆ ಪ ಕರಣNೆU ಸಹಕ ರುವ:0ಲ$.
20. ಅ5'ೕಜ7ೆಯು ಅ5'ೕಜ7ೆ ಯು .ಆ?ೋ .ಆ?ೋ ಯ Sರುದw 8ೊ ಸDಾದ ಆ?ೋಪವನು , BಸMಂ2ೇಹ"ಾ* ರುಜು"ಾತು ಪVಸಲು Sಫಲ"ಾ*ರುತ12ೆ. b9ಾCದು2ಾರರರು ದೂರು ಸ#$ಸುವ ಸಮಯದ#$ ಪಟೂರು kಾsೆ,ೆ ವ,ಾCವTೆ ಆ* ಬಂ0ದುQ, ಮುಖ ಕEೇ ಯ B2ೇCಶನದ Zೕ?ೆ,ೆ ದುರನು ಸ#$ ದುQ, ತಮ SEಾರTೆಯ#$ ಘಟ7ೆಯ ಬ,ೆ. ನನ,ೆ "ೈಯು^1ಕ ಾ{ ಇರುವ:0ಲ$' ಎಂದು ನುV0ರುWಾ1 ನುV0ರುWಾ1?ೆ. ಾ . ಾ 2 ಮಧುರವರು ಸಂ ೆAಯ#$ ಅNೌಂPೆJ ಆ*ದುQ, ಆ?ೋ ತರು ಸಂ ೆAಯ#$ ಹಣ ದುರೂಪ'ೕ ದುರೂಪ'ೕಗ ಗ ಾVರುWಾ1?ೆ' ಎಂದು />ತು, 9ಾರು ಎಷುe ಹಣ ದುರೂಪ'ೕ ದುರೂಪ'ೕಗಗ ಾVರುWಾ1?ೆಂದು ನನ,ೆ Bಖರ"ಾ* ,ೊ ಲ 1 $ ಎಂದು ನುV0ರುWಾ1?ೆ.
ಾ. ಾ 3 ಂದ 7, 9 ಂದ 11 H ೕ?ಾI 3JM ಪಂLನ#$ ಪಂLನ#$ Nೆಲಸ ಾಡುವ ವ ^1ಗ}ಾ*ದುQ, ಅವ?ೆಲ$ರೂ ತಮ SEಾರTೆಯ#$ ಅ59ಾಜ7ೆ,ೆ -6- CRL.P No. 5884 of 2022 ಪ ಕೂಲ"ಾ* ಾ ನುV0ರುWಾ1?ೆ. ಾ . ಾ 8 ಪಂಚ ಾ ಯು ಸಹ ಅ59ಾಜ7ೆ,ೆ ಪ ಕೂಲ"ಾ* ಾ ನುV0ರುWಾ1?ೆ. ಅ59ಾಜ7ೆಯು ತನ ಪ ಕರಣವನು ರುಜು"ಾತು ಪVಸಲು 63 2ಾಖDೆಗಳನು 8ಾಜರುಪV ದರು ಸದ 2ಾಖDೆಗಳನು ಪ:~eಕ ಸಲು ಾ ಗಳu ಪ ಕರಣNೆU ಸಹಕ ರುವ:0ಲ$. ಈ ಎಲ$ Nಾರಣಗ/ಂದ ಅ5'ೕಜ7ೆಯು ಆ?ೋ ತರ Sರುದw 8ೊ ಸDಾದ ಆ?ೋಪವನು BಸMಂ2ೇಹ"ಾ* ರುಜು"ಾತು ಪVಸಲು Sಫಲ"ಾ*2ೆ ಎಂದು 8ೇಳuWಾ1 7ಾನು ಅಂಶ 1 ನು ನNಾ?ಾತ ಕ"ಾ* ಉತ1 ರುWೆ1ೕ7ೆ.
21. ಅಂಶ 3 :- ಈ Zೕ#ನ Nಾರಣ ಮತು1 SವರTೆ,ಾ* ಈ Nೆಳ*ನಂWೆ ಾVದ:
ಆ2ೇಶ ದಂಡ ಪ ^ 9ಾ ಸಂ{Wೆ ಕಲಂ 248(1) ರ ಅVಯ#$ ವ CಸುWಾ1 ಆ?ೋ ತರು •ಾ.ದಂ.ಸಂ. ಕಲಂ.
ಕಲಂ.408 ಮತು1 420ರ ಅVಯ#$ನ ಆ?ೋಪಗ/,ೆ 2ೋಷಮುಕ1?ೆಂದು ಪ ಗ ‚ಡುಗ_ೆ ಾಡDಾ*2ೆ.
ಆ?ೋ ಯ ಮತು1 ಅವರ oಾƒೕನು2ಾರರ ಮುಚ„/Nೆಯನು ,ೊ/ಸDಾ*2ೆ."
ರದುQ,ೊ/ಸDಾ*2ೆ
5. No separate charge was framed against the petitioner. The charge sheet filed were the same against both the accused. The charge framed are also same against accused Nos.1 and 2. Since the petitioner/accused No.1 was not available for trial for a particular year and did not co-operate with the conclusion of the trial, a split charge in -7- CRL.P No. 5884 of 2022 C.C.No.859/2018 is laid. Since the offences are identical, the charges are identical, the reasons rendered by the learned Magistrate would enure to the benefit of accused No.1/petitioner herein, as well as acquittal order has been passed on the same reason against accused No.2.
6. It is germane to notice the judgment rendered by this Court in the case of Khaseem vs. The State of Karnataka and another in Crl.P.No.47/2022, disposed on 27.05.2022, wherein this Court relying on the earlier judgments, has held as follows:
" 9. The learned Sessions Judge on appreciation of the entire oral and documentary evidence holds that the prosecution has miserably failed to adduce any cogent or reliable evidence to connect the accused in the alleged offences and prove them beyond all reasonable doubt. If the offences could not be proved against accused Nos.1 to 3, independent allegations against accused No.4-the petitioner herein not being present permitting the trial to be continued against the petitioner would become an exercise -8- CRL.P No. 5884 of 2022 and futility. The reliance placed by the judgment of the co-ordinate Bench by the leaned HCGP is distinguishable on facts without much ado and has been distinguished by a Co-ordinate Bench of this Court in Crl.P.No.110910/2020 rendered on 24.03.2022. This Court in Cr.P.No.3017/2022 on identical circumstance by its order dated 22.04.2022 has held as follows:
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, -9- CRL.P No. 5884 of 2022 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 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:
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"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
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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 second opinion that he is
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CRL.P No. 5884 of 2022also 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
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CRL.P No. 5884 of 2022consideration 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
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CRL.P No. 5884 of 2022blame 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
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CRL.P No. 5884 of 2022necessarily 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 extended to the appellant, since co-accused had been acquitted and held that a
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CRL.P No. 5884 of 2022departure 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."
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CRL.P No. 5884 of 2022The 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.
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.
10. In the light of the judgment rendered by this Court and that of the co- ordinate Bench supra, I deem it appropriate to exercise the jurisdiction of this Court under Section 482 of Cr.P.C. and obliterate further trial against the petitioner.
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CRL.P No. 5884 of 202211. For the aforesaid reasons, the following:
ORDER The Criminal Petition is allowed. The proceedings in Spl.C.No.155/2018 pending on the file of the I Additional District and Sessions Judge, Kodagu, Madikeri (Cr.No.135/2017) stand quashed qua the petitioner."
7. In the light of the admitted facts, as quoted hereinabove and the judgment rendered by this Court, I deem it appropriate to terminate the proceedings against the petitioner.
8. For the aforesaid reasons, the following:
ORDER i. The criminal Petition is allowed. ii. The proceedings in C.C.No.859/2018 (Crime No.318/2008) on the file of the Senior Civil Judge and J.M.F.C., Tiptur, stand quashed.
Sd/-
JUDGE KG