Dismissed

Sri Izaz @ Izza v. State of Karnataka

Karnataka HC2 Jul 2021CRL.P/6707/2018

Case brief

AI extract

What is this about?

A criminal petition under Section 482 Cr.P.C. seeking quashing of trial proceedings against the petitioner was dismissed. The court held that the petitioner's prior absconding and the fact that the case was split against him precluded the application of precedents allowing quashing upon co-accused acquittal. The petitioner was directed to surrender forthwith.

What did the court decide?

Petition dismissed. Petitioner directed to surrender before the trial Court forthwith.

Sri Izaz @ Izza Vs State of Karnataka — Quashing and FIR | Karnataka HC (2021)

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Crl.P.No.6707/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JULY 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL PETITION No.6707/2018

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BETWEEN :

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SRI.IZAZ @ IZZA S/O KANCHI KHADAR AGED ABOUT 26 YEARS RESIDING AT B.M.K.FLAT, 7TH BLOCK KRISHNAPURA, KATIPALLA VILLAGE MANGALURU TALUK – 575 101 … PETITIONER

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(BY SMT.HALEENA AMEEN, ADV. FOR SRI.ASHOK KUMAR SHETTY.K., ADV.)

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AND :

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STATE OF KARNATAKA KONKAN RAILWAY POLICE STATION MANIPAL, UDUPI REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS BENGALURU – 560 001

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SRI.KURIYAN ELIYAS S/O ELIYAS, AGED ABOUT 49 YEARS R/AT MALIDA, MUNDERI POST YADAKARA TALUK,

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MALLAPURAM DISTRICT – 676 2017 KERALA STATE … RESPONDENTS

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(BY SMT.NAMITHA MAHESH B.G., HCGP FOR R1)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN

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Crl.P.No.6707/2018

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S.C.NO.98/2016 PENDING BEFORE THE COURT OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 379, 511, 307, 326, 323, 504 READ WITH 34 OF IPC.

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:

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O R D E R

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“Whether the proceedings in SC No.98/2016 against the petitioner on the file of III Addl. Sessions Judge, D.K. amount to abuse of process of the Court ?” is the question involved in this case.

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On the basis of the complaint filed by the second respondent, the first respondent Police registered Crime No.240/2011 against 6 unnamed young men between age group of 22 to 25 years for the offences punishable under Sections 326, 307, 379, 511 IPC.

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It was alleged that on 30.10.2011 at 8.45 p.m. one person boarded the cabin of the lorry of respondent No.2 which was parked in Wagon area of Surathkal Railway Station and attempted to commit theft of the articles kept in the cabin of the lorry. It was further

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Crl.P.No.6707/2018

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alleged that when CW.1 and other drivers tried to catch the culprit, he pushed them and stabbed C.W.1 with a knife and escaped.

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On investigation, the first respondent charge sheeted the petitioner and 3 others for the offences punishable under Section 379, 511, 307, 326, 323, 504 read with Section 34 of IPC. In the charge sheet the petitioner was named as accused No.1. It was alleged that the petitioner was the person who entered into the cabin of the lorry to commit theft and stabbed C.W.1 and attempted to commit his murder.

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As per the charge sheet records, the petitioner was arrested and the weapon of the offence was recovered at his instance on the basis of his voluntary statement. On committal of the case the matter was registered in SC No.101/2014 on the file of the III Additional Sessions Judge, Mangaluru.

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After grant of bail, the petitioner went absconding. After taking all steps to secure him, the case against him was split up and registered as SC No.98/2016.

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Crl.P.No.6707/2018

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Accused Nos.2 to 4 were tried in S.C.No.101/2014 and acquitted vide judgment dated 24.10.2017 on the following grounds:

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i) CW.1 the victim died before the

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commencement of the trial. Therefore, he was not available either to speak about the incident or to identify the accused;

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ii) Out of the other three eye-witnesses viz., PWs.1,6 and 7, PW.1 turned hostile and PW.7’s evidence shows that he was not a witness to the incident of stabbing. PW.6 though deposed that he witnessed the entire incident, said that due to long lapse of time, he was not able to identify the accused. Therefore, the prosecution has failed to prove the charge brought against accused Nos.2 to 4.

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Reiterating the petition contentions, learned counsel for the petitioner relies upon the following judgments:

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i) Vishwas Bhandari vs. State of Punjab & anr¹ ii) Azar @ Azaruddin vs. State of Karnataka²

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1 (2021)2 SCC 605

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2 Crl.P.No.1913/2021(D.D.10.06.2021)

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Crl.P.No.6707/2018

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iii) A. Nazir vs. State of Karnataka³

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Per contra, Smt.Namitha Mahesh, learned

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HCGP opposes the petition on the following grounds:

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i) The allegation made against accused Nos.2 to 4 and petitioner are totally different. Therefore, acquittal of accused Nos.2 to 4 does not in any way advances the case of the petitioner;

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ii) The petitioner after obtaining bail abused the discretion exercised in his favour. Therefore he is not entitled for any indulgence exercising inherent powers of this Court;

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iii) Apart from the evidence of eye witnesses, there is circumstantial evidence of recovery of the weapon from the custody of the petitioner and FSL report to the effect that the blood stains found on the said weapon were of human blood;

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iv) PW.6’s evidence regarding the identity of the accused arise only when he is examined in the presence of the petitioner;

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3 Crl.P.No.4069/2021 (D.D.11.06.2021)

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Crl.P.No.6707/2018

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v) If at all the judgment of acquittal of accused Nos.2 to 4 has any bearing, at the most an opportunity to the petitioner to seek his discharge under Section 227 of Cr.P.C. can be afforded.

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In support of her contentions, she relies on the following judgments:

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i) Umesh vs. State of Kerala⁴

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ii) Ummer Farooq vs. State of Karnataka⁵

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After nearly about one year of acquittal of accused Nos.2 to 4, accused No.1 has preferred the above petition claiming that since the other accused have already been acquitted on trial, the proceedings against him serves no purpose and that amount to abuse of process of the Court.

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The charge sheet records and the copy of the judgment produced by the petitioner himself show that the allegations of getting into the cabin of the lorry attempting to commit theft and stabbing respondent/CW.1 with knife are only against the petitioner.

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4 (2017)3 SCC 112

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5 Crl.P.No.6857/2020 (D.D.24.03.2021)

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Crl.P.No.6707/2018

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According to the prosecution, accused Nos.2 to

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4 were near the lorry and on CWs.1 to 4 approaching to catch the petitioner, all of them escaped. Only the sharing of common intention in commission of theft was attributed to them.

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There is no dispute that the petitioner on grant of bail went absconding and he was a proclaimed offender. Thereafter the case against him was split up. Apart from the evidence of the injured eye-witness and the eyewitnesses PWs.1,6 and 7 there was circumstantial evidence of recovery against the petitioner. Therefore, it cannot be said that he stands exactly on identical position with accused Nos.2 to 4.

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The Hon'ble Supreme Court in Padal Venkata Rama Reddy @ Ramu vs. Kovvuri Satyanarayana Reddy and others⁶ has held that the person approaching the Court with unclean hands is not entitled to invoke the inherent powers of the Court under Section 482 of Cr.P.C. for his benefit.

6 (2011)12 SCC 437

Crl.P.No.6707/2018

14. In Vishwas Bhandari’s case the trial was

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conducted against accused No.1 for commission of the offence of rape and accused No.1 was tried on the charge of kidnapping minor girl for the purpose of marriage. In that case the main accused himself was acquitted on trial since the complainant and victim did not support the allegation made against him. The petitioner therein was only an abettor. Taking into consideration such facts, it was held that when the main accused himself was acquitted, continuation of the proceedings against the appellant serves no purpose and amount to abuse of process of the Court. In the light of the facts and circumstances of the present case discussed above, the said judgment is not applicable.

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The facts in Umesh’s case referred to supra were similar to the case on hand. There also, the accused did not make himself available for trial and therefore case was split against him and separate case was registered. In that case, first accused was convicted, the other accused

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Crl.P.No.6707/2018

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were acquitted and the accused sought to reap the benefits of such acquittal judgment. The Hon'ble Supreme Court held that in such event, the accused therein can file an application before the trial Court under Section 239 Cr.P.C. The Hon'ble Supreme Court further directed the appellant to surrender before the trial Court. This matter is fully covered by the judgment of the Hon'ble Supreme Court in Umesh’s case.

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In the light of the judgment of the Hon'ble Supreme Court, this Court does not find it necessary to refer the other judgments relied on by both side. Therefore the petition is dismissed.

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The petitioner is directed to surrender before the trial Court forthwith.

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Pending IAs stood disposed of.

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Sd/JUDGE

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Akc

Sri Izaz @ Izza v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Izaz @ Izza v. State of Karnataka

Case brief

What is this about?

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