Karnataka High Court
Sri Deepak vs State By D.J Halli Police Station on 29 January, 2016
Author: Rathnakala
Bench: Rathnakala
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2016
BEFORE
THE HON' BLE MRS. JUSTICE RATHNAKALA
CRIMINAL PETITION NO.3218 OF 2014
BETWEEN:
SRI. DEEPAK,
S/O LATE RAMAKRISHNA,
AGED ABOUT 41 YEARS,
R/AT NO.F-14, 8TH CROSS,
GIDDAPPA BLOCK,
FRAZER TOWN,
BANGALORE-560 005.
...PETITIONER
(BY SRI. H.P. LEELADHAR, ADV.)
AND:
STATE BY D.J. HALLI POLICE STATION,
BANGALORE CITY,
BANGALORE-560005. ...RESPONDENT
(SRI. P.M. NAWAZ, SPP)
THIS CRL.P. IS FILED U/S.482 CR.P.C., PRAYING TO QUASH
THE ORDERS DATED 4.4.2013 IN CC NO.24743/2007 PASSED BY
THE XI ACMM, MAYO HALL UNIT, BANGALORE REJECTING THE
APPLICANT UNDER SECTION 239 OF CR.P.C. UNDER ANNEXURE-B
AND ALSO CONFIRMING THE SAID ORDER BY THE REVISION
COURT IN CRL.R.P. NO.25050/2013 DATED 5.4.2014 ON THE FILE
OF P.O. & ADDL. S.J., FTC-III, MAYO HALL, BANGALORE AT
ANNEXURE-A AND ALLOW THE PETITION.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18/01/2016 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:-
2
ORDER
The petitioner herein is arrayed as accused No.3 in the charge sheet submitted by the respondent/police in respect of the offence punishable under Sections 457, 380 and 411 of IPC.
2. The case of the prosecution is, the 1st accused stole the valuables from the residence of the complainant on 25.12.2005. The stolen property was seized under mahazar by the IO from the possession of the petitioner, who was receiver of stolen property. The application filed by the petitioner for discharge was dismissed by the learned Magistrate. In a revision, the Sessions Court allowed his application and he brought the said order to this Court in Crl.R.P. No.1140/2010. This Court allowed the revision petition and remanded the matter for fresh consideration to the Trial Court. Learned Magistrate on rejecting to discharge the petitioner, the Revision Court endorsed the order of the Magistrate and dismissed his revision petition vide order dated 05.04.2014. 3
3. Sri. H.P. Leeladhar, learned counsel for the petitioner submits that assailing the veracity of the investigation conducted submits that two voluntary statements were recorded by the IO on 23.02.2006 and 24.04.2006. In the voluntary statement dated 23.02.2006, Javeed/1st accused has made signature in English whereas in his voluntary statement dated 24.02.2006, he has made signature in Kannada that creates doubt about the genuineness of signature of 1st accused in the alleged voluntary statements. As per prosecution, Javeed was arrested on 23.02.2006, in fact he was illegally detained in the police station from 21.02.2006. Since he declined to meet the illegal demands of the police authorities, he was finally produced before the Court on 25.02.2006 and remanded to the judicial custody with hand cuffings. Petitioner No.1 and his brother were implicated in another case in Crime No.477/2005 on the alleged voluntary statements of the very same Javeed @ Julus. Hence, his mother was compelled to lodge a complaint against police 4 officials before the Commissioner of Police for harassing her sons/petitioner and Lakshmikanth @ Lakshman. This Court ordered probe by CID.
Learned counsel further submits that Javed @ Julus was apprehended by K.G. Halli Police on 11.09.2004. He was in judicial custody in Crime No.263/2004(CC No.24338/2005) on the alleged date of theft i.e. 25.12.2005, he was in judicial custody till 13.01.2006, hence, there was no possibility of his committing theft or selling the stolen property to this petitioner. Though he was released on bail, he was unable to furnish surety. During Narco Analysis test Javed denied of giving any jewels stolen in D.J. Halli police station limits to this petitioner or his brother that falsifies his voluntary statement recorded by the police. In this regard, Director General of Police, COD, Crimes (Special Cell) and Economic Offences submitted report to the DG and IGP on 31.03.2008 to the effect that registration of the case and recovery of the property is false. The articles recovered from 5 the possession of the petitioner are his own articles. There is variation in the description of the stolen property in the complaint averment and recovery mahazar. Hence, the order of the learned Magistrate and also order of Revision Court rejecting his application under Section 239 of Cr.P.C is liable to be quashed and the order passed by the Revision Court in Crl.R.P. No.25050/2013 dated 05.04.2014 may be confirmed.
4. As per submission of Sri. P.M. Nawaz, learned HCGP for the State, this Court once having set-aside the order of discharge passed by the Magistrate and all the contention advanced by this petitioner having been considered by the Magistrate, no relief can be granted under the provision of Section 482 of Cr.P.C. All the contentions can be availed as defence by him during the trial. Irregularity or the omission on the part of the Registry of the Court to make proper entry in the order sheet cannot be encashed by him, in fact the 1st accused was not in judicial custody on the alleged date of the incident. 6 Reasons for the discrepancy in the description of the property between the complaint allegation and seizure mahazar is, the complainant was not owner of the house, she was sister-in-law of the owner, hence, she had no personal knowledge as to the exact nature of the articles stolen.
5. In the light of the above submissions, I have gone through the orders passed by the learned Magistrate as well as the Revision Court. It is a fact that the brother of this petitioner viz. Lakshmikanth @ Lakshman and 1st Accused Javeed were arrayed as accused by Frazer Town Police Station in Crime No.477/2005 in respect of offence punishable under Sections 457, 380 of IPC. This Court while considering the bail petition moved by accused ordered for probe by COD. After investigation, said Lakshmikanth & Javed were dropped from the prosecution. Only one accused viz. Shaik Javeed was brought to Trial. During the course of investigation, 1st accused/Javed was subjected to Narco Analysis Test. The petitioner 7 approached this Court for quashing the prosecution under Section 482 of Cr.P.C. on two counts; 1) that the 1st accused was not in custody between 18.09.2004 and 13.01.2006, 2) that Narco Analysis Test report falsifies veracity of investigation.
6. The Apex Court in the case of Selvi Vs. State of Karnataka, reported in AIR 2010 SC 1974, regarding Narco Analysis Test report, held "the statements made by the subject during custody are not admissible as evidence unless same is cross-examined or judicially scrutinized."
7. As per Conviction Register Entry maintained by the Jail Authorities, Javeed was released from the jail on 24.11.2005. Prior to his release, he was transferred to J.C. Nagar Police Station in respect of Crime No.184/2004 and 170/2004. Though he was convicted in those cases on the benefit of set-off, he was released on 24.11.2005, which is evident from the jail records. The contention of the petitioner that he was in custody in respect of Crime No.447/2005, though enlarged on bail in not-furnishing 8 surety, he continued to be in custody is not on the basis of the positive documentary proof, but on the omission on the part of the office of the concerned Court in making proper entry in the order sheet. Further question raised by him in respect of Narco Analysis report as such it is not a fool proof evidence of the fact extracted from the accused under administration of drug. At the most, it can lend some support to the defence. The learned Magistrate has scrupulously examined the documents produced before him by both parties in accordance with the direction of this Court and found that as on the date of alleged incident, the 1st accused was not in custody as contended by the petitioner. The variation in the description of the property between complaint allegation and recovery mahazar doubtful voluntary statement of accused are all matter of defence during trial.
I find no good ground to exercise the jurisdiction of this Court on the orders passed by the Courts below whereby the application filed by the petitioner under 9 Sections 239 of Cr.P.C. was rejected and further upheld by the Revision Court. With regard to the description of the property stolen and alleged to have been recovered at the instance of 1st accused, it is a matter of evidence.
The petition is rejected.
In view of disposal of the main petition, IA No.1/2014 does not survive for consideration, hence, it is disposed of.
Sd/-
JUDGE JTR