Allowed

Jilani v. the State of Karnataka

Karnataka HC16 Sept 2021CRL.P/7055/2021

Case brief

AI extract

What is this about?

Small Bench allowed Criminal Petition under Section 482 CrPC quashing proceedings against the petitioner. The court held that without independent incriminating evidence or recovery, a case based solely on a co-accused's confession (Section 25) cannot sustain, quoting Apex Court precedent.

What did the court decide?

Quashed the proceedings against the petitioner in CC No.249/2018 arising out of Crime No.21/2017 pending before the JMFC II Court.

Jilani Vs the State of Karnataka — Quashing and FIR | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 16^TH DAY OF SEPTEMBER, 2021

¶3

BEFORE

¶4

THE HON'BLE MR. JUSTICE K. NATARAJAN

¶5

CRIMINAL PETITION NO.7055/2021

¶6

BETWEEN:

¶7

JILANI S/O. SHAK BUDEN SAB AGED ABOUT 50 YEARS, R/O. 1^ST MAIN, 7^TH CROSS, VENKABHOVI COLONY, NEAR HALLIMARA CIRCLE, AZAD NAGAR, DAVANGERE-577 001. …PETITIONER

¶8

(BY SRI K.N. JAYAPRAKASH, ADVOCATE)

¶9

AND:

¶10

THE STATE OF KARNATAKA, BY K.T.J. NAGAR POLICE STATION, DAVANGERE, REPTD. BY ITS SPP, HIGH COURT BUILDING, BENGALURU-560 001. ...RESPONDENT

¶11

(BY SRI.MAHESH SHETTY, HCGP)

¶12

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CRPC. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN CC NO.249/2018 ARISING OUT OF CR NO.21/2017 REGISTERED BY THE KTJ NAGAR POLICE STATION, DAVANGERE PENDING ON THE FILE OF THE II-JMFC, DAVANGERE FOR THE OFFENCE PUNISHABLE UNDER

¶13

-:2:-

¶14

SECTION 78(3) OF THE KARNATAKA POLICE ACT, SO FAR AS THE PETITIONER IS CONCERNED.

¶15

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

¶16

O R D E R

¶17

This petition is filed by the petitioner/accused No.2 under Section 482 of the Code of Criminal Procedure [hereinafter referred to as 'Cr.PC.,' for short], for quashing of the entire proceedings in CC No.249/2018 arising out of Crime No.21/2017 registered by K.T.J. Nagar Police Station, pending on the file of the JMFC-II Court, Davangere, for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963 [hereinafter referred to as 'KP Act' for short].

¶18

Heard the arguments of the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State. Perused the records.

¶19

The case of the petitioner is that on the credible information received by the respondent police, Sri B.V.

¶20

-:3:-

¶21

Girish, Police Inspector of DCB, K.T.J. Nagar Police Station on 7.2.2017 at 6.30 p.m., along with the staff and panchas visited the spot, conducted raid and apprehended accused No.1 Basavarajappa, who said to have been indulged public in playing 'Matka' game by calling the public and giving assurance that if they pay Rs.1/-, they will get Rs.80/-. Thereafter, he registered NCR and sent a report to the Magistrate and after obtaining permission, he registered a case. In the voluntary statement of accused No.1, accused No.2, was also implicated. Hence, he has filed charge sheet against both the accused. It is further alleged that accused No.1 pleaded guilty and he has sentenced to pay fine and asserted the criminal proceedings against accused No.2/petitioner herein, who is before this court.

¶22

.4. The learned counsel for the petitioner vehemently contended that the report sent by the police for obtaining permission to register the FIR and filed charge sheet is only after arrest of the accused No.1 and even otherwise the learned Magistrate without application of mind has given

¶23

-:4:-

¶24

permission mentioning as 'Permitted', which is not in accordance with law and further contended that accused No.2 has been implicated only based on the voluntary statement of accused No.1. Except the voluntary statement of accused No.1, there is no recovery from this petitioner/accused No.2 to connect with the crime. The voluntary statement of the co-accused is inadmissible under Section 25 of the Indian Evidence Act, 1872 and unless there is recovery under Section 27 of the Indian Evidence Act and therefore, there cannot be any proceedings against this petitioner and conducting trial against the accused herein is abuse of process of law and prayed for allowing the petition.

¶25

Per contra, learned High Court Government Pleader upon hearing the arguments, of course, contended that soon after receipt of the credible information that accused No.1 playing 'Matka' indulging public, Sri B.V. Girish, Police Inspector, DCB, K.T.J. Nagar Police Station, along with his staff and panchas visited the spot, registered a case in NCR No.7/2017 and after apprehending accused No.1, seizing the

¶26

-:5:-

¶27

material, report has been sent to the learned Magistrate seeking permission as per Section 155(1) & (2) of Cr.PC. and prayed for dismissal of the petition.

¶28

Having heard the learned counsel for the petitioner and the learned counsel for the State, it is seen that the learned Magistrate after receiving the report, has endorsed as 'permitted' which reveals that the learned Magistrate has passed any order by application of mind by noting material evidence on record. This court has already held in a similar case while granting permission that the learned Magistrate is required to apply his mind while granting permission under Section 155(2) of Cr.PC., Mere mentioning as 'permitted' is not sustainable in law.

¶29

It is pertinent to note that accused No.1 is not before this court. He has pleaded guilty and paid fine amount. Accused No.2/petitioner herein who is before this court petitioner has mainly challenged the criminal proceedings, contending that his name is implicated based on

¶30

-:6:-

¶31

the voluntary statement of accused No.1 and there is no materials on record against accused No.2.

¶32

On perusal of the material evidence placed on record, it is evident that this petitioner has been arrested by the police based upon the voluntary statement of accused No.1, but nothing has been recovered. If no incriminatory evidence is collected or recovered from this accused, based upon the voluntary statement i.e., confession statement of the co-accused, is not admissible in law and hit by Section 25 of the Indian Evidence Act. Exception to the Rule is that if any recovery is made, in pursuance of the disclosure statement is admissible under Section 27 of the Indian Evidence Act, but there is no recovery in this case.

¶33

The co-ordinate bench of this court in Criminal Petition No.504/2021 disposed of on 17.2.2021 has taken a similar view by relying upon the judgment of the Hon'ble Apex Court in the case of Surinder Kumar Khanna Vs.

¶34

-:7:-

¶35

Intelligence Officer, Directorate of Revenue

¶36

Intelligence reported in (2018) 8 SCC 271 .

¶37

In view of the principles laid down by the Hon'ble Apex Court as well as the judgment of the co-ordinate bench of this court and considering the facts and circumstances of the case on hand, except the statement of the co-accused, nothing has been recovered in the case. No criminal proceedings can be conducted against this petitioner without any record. Hence, permission accorded by the learned Magistrate itself is not admissible in law and accordingly, pass the following:

¶38

ORDER

¶39

The Criminal Petition is allowed. Consequently, the proceedings against this petitioner/accused No.2 in CC No.249/2018 arising out of Crime No.21/2017 pending on the file of the JMFC II Court, Davangere is hereby quashed.

¶40

Sd/JUDGE

¶41

PL*

Jilani v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Jilani v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Imran Vs the State of Karnataka

Asif Nawaz Khan Vs State by Women Police Station

Rajesh Poojari @ Rajesh @ Ranganath Vs State

Akash Raju, S/O. Raju. P.G., Vs State of Karnataka by

Manjunath Prasad R Vs Mrs. Swathi S.P.

Lakshmidevamma Vs the State of Karnataka