Allowed

Sri Mohammad Maroof v. State of Karnataka

Karnataka HC2 Aug 2022CRL.P/181/2021

Case brief

AI extract

What is this about?

The High Court quashed the criminal proceedings against the petitioner for offences of unlawful assembly, riot, and assault. Relying on the acquittal of co-accused charged with identical crimes under similar facts, the Court held that further trial serves no purpose and would result in inevitable acquittal due to lack of distinguishing evidence.

What did the court decide?

Criminal Petition allowed; proceedings in C.C.No.2179/2016 stood quashed qua the petitioner under S. 482 Cr.P.C.

Sri Mohammad Maroof Vs State of Karnataka — Quashing and FIR | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 181 OF 2021

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BETWEEN:

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SRI MOHAMMAD MAROOF SON OF SRI C HAMEED AGED MAJOR RESIDENT OF BADRIYA 1ST CROSS ROAD KANDAK, BUNDER MANGALURU-575001.

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…PETITIONER

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(BY SRI. ACHARYA B L., SR. ADVOCATE)

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AND:

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STATE OF KARNATAKA REPRESENTED BY MANGALURU SOUTH POLICE DAKSHINA KANNADA THROUGH THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560001.

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…RESPONDENT

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(BY SRI. K. S. ABHIJITH, HCGP)

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CRL.P FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONBLE COURT MAY BE PLEASED

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TO QUASH THE ORDER DATED 13.04.2015 PASSED BY THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, II COURT, MANGALURU TAKING COGNIZANCE OF THE OFFENCE P/U/S 143,147,341,353,504,506 R/W 149 OF IPC IN CR.NO.129/2014 AND ALL FURTHER PROCEEDINGS IN C.C.NO.2179/2016 PURSUANT THERETO.

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

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ORDER

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The petitioner is before this Court calling in question proceedings in C.C.No.2179/2016 for the offences punishable under Sections 143, 147, 341, 353, 504 and 506 read with Section 149 of IPC.

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Heard the learned Senior counsel Sri B. L. Acharya, appearing for the petitioner and the learned HCGP, Sri K. S. Abhijith, appearing for respondent No.1.

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The petitioner is accused No.2. There were about 42 accused in the subject crime with the allegations as aforesaid against all the accused. Every other accused was tried in C.C.No.1240/2015 and since the petitioner was not

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available for the trial, a split charge sheet was issued against the petitioner in C.C.No.2179/2016. The concerned Court, by its order dated 19.11.2019 in C.C.No.1240/2015 acquitted all the other accused, who were available for the trial by the following order:

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”37. Now, coming to the evidence of the prosecution it can be seen that, the incident took place on 10.06.2014 at 10.45AM. But the complaint was given on 11.06.2014 at 3.15 PM. Further, it is to be noted here that P.W-3, 6 and 1 are the Government servants, who are all in the responsible position, would have given the complaint immediately after the incident, but they have not given the complaint for the reasons best known to them. Further, it is to be noted here that South Police Station is situated near to the place of the incident within 1½ KM radius. Further it is to be noted that, witnesses have not identified the accused persons, except identifying the accused No.1. Further, all the mahazar witnesses have turned hostile and also independent witnesses have also turned hostile. Only the staff of Mangaluru City Corporation, who were cited as

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witnesses have supported the case. Further, it is to be noted here that, star witnesses to the case are P.W-3, 6 and 1, who are Town Planning Officer, Assistant Town Planning Officer and Surveyor, who have supported the case of the prosecution. But, during the course of cross examination, the counsel for the accused had elicited the real truth from these witnesses. P.W-1 in his evidence he has admitted that on the day of the incident he has not received any written order from P.W-2 for the spot inspection. Further he has admitted in his cross examination that, they have not maintained the movements register to show that on the day of the incident they have visited to the spot for inspection, which clearly shows the value of his evidence given before the Court. Further, he was not able tell about whether residential houses situated near the Ice Plant or not and stated that no residential housed are situated. Further he has stated that, he had been to the place of the incident along with his higher officer, but he does not know for what purpose he had been to the spot. He also stated that he is seeing the accused before the Court for the first time. Since there was crowd of the accused, he does not know what is the conversation took place between the officers and the accused persons. He

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also stated that accused No.1 has abused P.W-2. But, P.W-2 who is the Commissioner of Mangaluru City Corporation at the time of the incident, he has not spoken about the accused have abused him. He has also stated that P.W-3, 6 and 1 have given complainant before him about accused have abused them. Further he has stated that he has not given any written permission to P.W-3, 6 and 1 for spot inspection of Sathya Ice Plant, but he has stated that he has given oral permission for the inspection. P.W-2 in his evidence he has stated that the local residents of nearby Ice Plant have given complaint before him and he does not know who has given the complaint about Sathya Ice Plant. Further, P.W-2 was not able to say in his evidence that under which jurisdiction of the police station, Mangaluru City Corporation comes, but he has stated that through his officers he has given the complaint before the jurisdictional police. Further, in his cross examination he has admitted that accused No.1 used to question the works done by Mangaluru City Corporation and also given complaint before the Lokayuktha against P.W-3, 6 and 1. Further, in his evidence he has stated that he had not been to the place of incident before filing the complaint. This clearly shows that, P.W-2 had no

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information about the incident, only on the complainant of P.W-3, 6 and 1 he came to know the incident. He is not the eye witness. Hence, his evidence also not helpful to the prosecution to prove the case against the accused.

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38. P.W-3 who is the Town Planning Officer in his cross examination he has admitted that against him there is a case before the Lokayuktha Court. Further he has admitted in his cross examination that on 10.06.2014 no written permission was given by P.W2 for the spot inspection. He has also stated that nearby the Ice Plant, there are residential houses, shops situated. He also stated that he does not know personally, who were all abusing them, but he has stated that all the accused were protesting. He also stated that he does not know who has scolded as “¨ÉÃªÁ¹ðUÀ¼ÀÄ, ®AZÀPÉÆÃgÀgÀÄ, ¤ÃªÀÅ PÉ®¸À ¸ÀjAiÀiÁV ªÀiÁqÀÄwÛ®è” at

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the time of the incident. He also stated that they have not mentioned about the identification of the accused who were participated in the protest in their complaint given before the P.W2. Further ,this witness has also stated that at the time of the incident, even P.W-2 commission was also come to the place of the incident and he has spoken with the protesters and thereafter at

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1.30 PM, they have left the spot. Further, he has admitted that accused No.1 used to file application under R.T.I. Act, asking for the works turned out by Mangaluru City Corporation. Further, in his evidence he has stated that he does not know who were all present at his office at the time when the incident took place at Mangaluru City Corporation. Further, he has not identified the accused. But he has stated that he knows accused No.1 alone and he had conversation with him at the office. Further, he has stated that personally he does not know who has abused at the time of the incident. He also stated that the police have not conducted the identification parade of the accused persons. Hence, evidence of the P.W-3 also not helpful to the prosecution, since he has not identified the accused, and also not stated about the act and a tribute of the accused.

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39. P.W-4, who is the driver in his cross examination he has stated that on the day of the incident he took P.W-3, 6 and 1 to the spot, thereafter he was waiting at the vehicle. P.W-3, 6 and 1 have returned near his vehicle, at that time, the accused have come near them and restrained his vehicle. Further, he has not identified the accused before the Court and stated that he knows accused

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No.1 and 3, hence he has identified them before the Court. Further, he has also stated that he does not know what is the conversation took place between the accused and his higher officer. Hence, his evidence is not helpful to the prosecution to prove the case. Further, P.W-5, who is the Security Guard in his cross examination has stated that he was doing security job at the main gate of Mangaluru City Corporation and he was not doing security work at the 1st and 2nd floor at the time of the incident. Further, he has also stated that at the time of the incident there were 100 public present at the office of P.W-3,6 and 1, hence he does not know who have abused P.W-3, 6 and 1. Further, he has also not identified the accused before the Court. P.W-6, who is the Assistant Town Planning Officer has identified the accused No.1 alone and he has stated that he is not able to say who have abused them at the time of the incident. In his evidence he has also admitted that there is a case in Lokayuktha Court against him. This witness who is the star witness also not identified the accused and also stated that he do not know who specifically abused them. Further it is to be noted here that, in his evidence stated that at the time of the incident he has informed to the P.W-2, but he has informed to

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the police. Which clearly shows that, since accused no.1 opposing the work of the Mangaluru City Corporation and also had given the complaint before the Lokayuktha court, to fix the case against the accused false case was registered against them. Hence, his evidence also not helpful to the prosecution to prove the guilt against the accused persons. P.W-7, who is the independent witness has turned completely hostile to the case of the prosecution and stated that he does not know about the incident and also he has not identified the accused. P.W-9, who is the Peon at Mangaluru City Corporation at the time of the incident, has stated that when he had been to the chamber of the Commissioner, there was no galata and he does not know personally about the incident. Further, he has not identified the accused persons before the Court. If really the said incident had happened, then this witness would have spoken the truth. P.W-10 and 13, who are the witnesses to the mahazar, also turned completely hostile and they have stated that they do not have any information about the incident and also stated that they have signed in the mahazar at the request of the police at the police station. Hence, they have not supported

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the case of the prosecution mahazar was also not proved.

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40. Further, it is to be noted here that P.W-3, 6 and 1 and also P.W-2 in their evidence admitted that at the time of the incident accused No.1 was the J.D.S. Party Corporator, who was sitting at the opposite party of Mangaluru City Corporation and he was opposing all the works turned out by the Corporation. They have also admitted that accused No.1has given complaint against P.W-3, 6 and 1 before the Lokayuktha. Hence, as canvassed by the counsel for the accused it can be seen from the evidence of the prosecution that the P.W-3, 6 and 1 had enmity against the accused. In the meantime this case was filed against the accused persons. Moreover, nobody has identified the accused persons. They have only identified the accused No.1, but they were not able say words he has used to abused them. Further it is to be noted here that, they have stated in their evidence accused have abused them, but they do not know who specifically abused them.

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41. Further, the prosecution has failed to show that on the day of the incident, P.W-3, 6 and 1 were present at the place of incident and no documents

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were produced to show that they were present at the spot. Further, it is to be noted here that P.W-2 in his evidence has stated that he never visited to the place of incident, whereas P.W-3 has stated in his evidence that P.W-2 was present at the place of incident and controlled the protesters, thereafter they have left to the office. But, P.W-6 in his evidence has not stated about theP.W-2's visit at the spot. If really P.W-2 has visited to the spot, then he would have spoken about that in his evidence. Hence, the prosecution has failed to show that on the day of the incident, P.W-3, 6 and 1 were present at the spot. Further, another interesting point to be noted here that P.W-3, 6 and 1 in their evidence they have stated that the accused were protesting at the place of the incident. As stated accused were protecting for the public cause and no individual has given the complaint against the accused about the unlawful assembly or rioting. Further it is to noted here from the evidence of the P.W-5 who is the security guard at the Mangaluru city corporation. Stated that there is gate near the main entrance, always there will be public protesting over there. Further he has stated that, if they try to enter the office then they will inform to the police. But in the instant case no police

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complaint is given by the P.W-5. If really incident taken place as stated by the P.W-3, 6 and 1, definitely P.W-5 would have given the complaint. Further, no witnesses have identified the accused before the Court. Further, they have deposed that the accused have abused, but they were not able to identify the person who has abused and threatened them. Hence, for the above said reasons, this Court opines that the prosecution has utterly failed to prove the charges alleged against the accused persons beyond all reasonable doubts. Therefore, point No.1 to 6 are answered in the Negative.

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42. POINT No.7 :- In view of my discussion on the aforesaid points, I proceed to pass the following:

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:: ORDER ::

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Acting under Section 248(1) of Cr.P.C, the accused No.1 to 27, 29 to 36 and 38 to 42 are hereby acquitted of the offences punishable under Section 143, 147, 341, 353, 504 and 506 read with Section 149 of I.P.C.

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The bail bond of the accused and surety bond shall stand for a period of six months.

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Preserve the entire records till the disposal of split-up case registered against accused No.28 and 37 in C.C.No.2179/2016.”

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With the aforesaid reasons, the concerned Court in C.C.No.1240/2015 acquitted all the other accused, who were charged of offences punishable as the petitioner is charged in the subject criminal case. The petitioner has now knocked the doors of this Court seeking quashment of the entire proceedings on the ground that all the other accused have been acquitted and the petitioner was sought to be tried separately on account of him not being available for the trial at the relevant point in time.

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It is not in dispute that the charge against all the accused were similar/same and on the aforesaid reasons all others have been acquitted, it would be waste of judicial time to permit trial which will ultimately end in the acquittal of the petitioner.

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The view of mine, in this regard, is fortified by the judgment rendered by a Co-ordinate Bench of this Court in

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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:

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“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

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one that was produced by the prosecution in the earlier case. Therefore, in that view of the matter, the proceeding is quashed.”

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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.”

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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

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in the proceedings which was continued against coaccused. Though, P.W.1 – complainant had admitted that he has lodged a compliant as per Ex.P1 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 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.P40, 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.

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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

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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 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.

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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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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

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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 coaccused 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.

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18. In that view of the matter, present proceedings initiated against petitioner is liable to be quashed.

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Hence, I proceed to pass the following:

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ORDER

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(i) Criminal petition is hereby allowed.

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(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

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Police Station, is hereby quashed insofar petitioner is concerned.

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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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The Co-ordinate Bench was considering a case where the

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co-accused who had escaped trial had not surrendered or was not arrested by the police.

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In the light of the allegations being similar and the reasons rendered by the concerned Court acquitting all other accused, becoming applicable to the petitioner as well, permitting further trial to be conducted against the petitioner in C.C.No.2179/2016 would become an exercise in futility. Therefore, I deem it appropriate to accept the petition, terminate the proceedings against the petitioner for the very same reasons rendered by the concerned Court in acquitting all the other accused, who were charged of the very same offences as the petitioner is charged.

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