Allowed

Sri K.Mohammad Thabsheer v. State of Karnataka

Karnataka HC18 Nov 2023CRL.P/1429/2023

Case brief

AI extract

What is this about?

High Court granted Special Legal Remedies under Section 482 CrPC, quashing proceedings for offences including本案中扭曲的Section 149 IPC against petitioners. The court held that omnibus allegations without specific overt acts and lack of identification rendered continuation an abuse of process.

What did the court decide?

Criminal petition allowed; impugned proceedings in C.C. No.1449/2021 regarding petitioners quashed.

Sri K.Mohammad Thabsheer Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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1 - NC: 2023:KHC:41409 CRL.P No. 1429 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 1429 OF 2023

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BETWEEN:

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SRI. K.MOHAMMAD THABSHEER S/O ABDULLA.K AGED ABOUT 20 YEARS R/AT CHAVARKAD HOUSE ADYANADKA P.O, ENMAKAJE KATTUKUKKE, KASARAGUDU KERALA 671 552

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INDICATED AS IN CHARGE SHEET SRI TABSIR, S/O KUREDEKA ABDULLA AGED ABOUT 20 YEARS R/AT CHAWAR KADU MANE ENMAKAJE GRAMA, MANJESHWARA TALUK KASARGODU, KERALA 671 552.

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Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA

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SRI BALAKRISHNA MOOLYA B S/O MANHANA MULYA K AGED ABOUT 40 YEARS R/AT NEROLU HOUSE, PO KATUKUKKE VILLAGE ENMAKAJE KASARGODU, KERALA 671 552.

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INDICATED AS IN CHARGE SHEET SRI BALAKRISHNA S/O MANJANNA MULYA R/AT GADDI MANE, ADKASTHALA ENMAKAJE GRAMA, MANJESHWAR TALUK KASARAGUD, KERALA 671 552.

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SRI. MAHAMMAD JABBAR.K S/O KURDEKA ABDULLA AGED ABOUT 23 YEARS R/AT CHAVARKAD HOUSE ADYANADKA P.O, ENMAKAJE KASARAGUDU, KERALA 671 552

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NC: 2023:KHC:41409 CRL.P No. 1429 of 2023

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INDICATED AS IN CHARGE SHEET SRI JABBAR, S/O KURDEKA ABDULLA R/AT CHAWAR KADU MANE ENMAKAJE GRAMA, MANJESHWAR TALUK KASARAGUDU, KERALA 671 552.

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SRI. SOMASHEKHARA J S S/O JANARDHANA NAYAK SHENI AGED ABOUT 44 YEARS R/AT THOTTADA MANE, SHENI MAIRE KASARAGUDU, KERALA 671 552

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INDICATED AS IN CHARGE SHEET SRI SOMASHEKAR SHENI S/O JANARDANA NAYAK SHENI R/AT THOTADA MANE, ENMAKAJE GRAMA MANJESHWAR TALUK, KASARAGUD KERALA 671 552.

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SRI. MOHAMMAD SATHAR R M S/O R M MOHAMMAD AGED ABOUT 40 YEARS R/AT R J HOUSE, KATUKUKKE POST KASARGOD DISTRICT, KERALA 671 552

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INDICATED AS IN CHARGE SHEET R/AT D NO 3/344, AADKASTHALA HOUSE ENMAKAJE VILLAGE, MANJESHWARA TALUK KASARGOD DISTRICT, KERALA 671 552.

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SRI. ABDUL RAHEEM K S/O K MOHAMMED AGED ABOUT 30 YEARS R/AT KUDUKOLI HOUSE, KATUKUKKE PERLA, KASARAGUDU DISTRICT KERALA 671 552

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INDICATED AS IN CHARGE SHEET SRI ABDUL RAHIM, S/O MOHAMMAD.K R/AT 3-337 A, KUDUKILE MANE PERLA GRAMA AND POST KASARAGUD DISTRICT, KERALA 671 552.

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SRI KINGSON ROHI D SOUZA K S/O KISTHU D SOUZA

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NC: 2023:KHC:41409 CRL.P No. 1429 of 2023

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AGED ABOUT 29 YEARS R/AT KALRODI HOUSE, PERLA P.O ENMAKAJE, KASARAGOD DISTRICT KERALA 671 552

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INDICATED AS IN CHARGE SHEET SRI KINGSON ROHI D SOUZA S/O KISTHU D SOUZA R/AT KALRODI MANE, PERLA POST KASARAGUD DISTRICT, KERALA 671 552.

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…PETITIONERS

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(BY SRI. AMAR CORREA, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY VITLA POLICE STATION BANTWALA, D K 574243 REP BY STATE PUBLIC PROSECUTOR / HCGP HIGH COURT OF KARNATAKA BENGALURU 560 001.

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SRI LOKESH POLICE OFFICER, WORKING AS PC 385 VITLA POLICE STATION BANTWALA, D K - 574 243.

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…RESPONDENTS

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(BY SRI. K NAGESHWARAPPA, HCGP FOR R-1; R-2 SERVED AND UNREPRESENTED)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE ORDER DATED 24.06.2021, PASSED BY THE COURT OF THE ADDL.CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BANTWAL, D.K., IN C.C.NO.1449/2021 (ARISING OUT OF FIR IN CR.NO.87/2019 OF RESPONDENT NO.1 POLICE), THEREBY TAKING COGNIZANCE OF THE OFFENCE P/U/S 332, 324, 353, 186, 143, 147, 148 R/W 149 OF IPC, AND REGISTERING A CRIMINAL CASE AND ISSUING PROCESS AGAINST 17 ACCUSED PERSONS, THESE PETITIONERS ARRAYING AS ACCUSED NOs.1,2,7,11,13,15 AND 16, AS AGAINST THESE PETITIONERS, VIDE ANNEXURE-A AND ETC.

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

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NC: 2023:KHC:41409 CRL.P No. 1429 of 2023

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ORDER

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Petitioners are charge-sheeted for the offences punishable under Sections 332, 324, 353, 186, 143, 147, 148, 149 of IPC.

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The summary of the charge sheet is as follows:

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On 13.5.2019 at around 7.45 pm. while C.W.1 and C.W.2 were on duty near Kepu Village, a Bolero vehicle bearing No.KA 04 MN 9730 came in a high speed and they stopped the said vehicle and while they were making enquiries with C.W.6 to 9 who were in the said vehicle, the accused Nos.1 to 17 by forming an unlawful assembly attacked the said Bolero Vehicle and started assaulting C.W.6 to 9 with their hands, at that time C.W.1 to 2 intervened to stop the same. The accused persons pushed CW.1 and 2 and when the C.W.1-2 enquired with accused why were they assaulting C.W.6 to 9, the accused have stated to C.W.1 and C.W.2 that, the C.W.6 to 9 have kidnapped a minor child aged 5 years and by saying so the accused attempted to lift the Bolero Vehicle and upon seeing the coming of C.W.3 to 5 to the place of incident, the accused No.17 is said to have pelted stone, due to which CW-3 is alleged to have sustained bleeding injury on his right hand finger. It is also alleged that the C.W.6, 7 and 8 have sustained injuries on their back left side.

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Mr. Amar Correa, learned counsel for the petitioners, submits that the informant in his further statement has categorically stated the accused No.17 assaulted CW-3

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5 - NC: 2023:KHC:41409 CRL.P No. 1429 of 2023

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with a stone. He further submits that the injured witnesses in their further statement have stated that they got to know that these petitioners were also present along with accused No.17 at the time of the incident. He further submits that, in the absence of any allegations that these petitioners formed an unlawful assembly with an intention to commit the offence as per Section 141 of IPC, the cognizance taken for the offence punishable under Section 149 IPC is impermissible.

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He further submits that the Police have not conducted a test identification parade or any other form of identification to ascertain that these petitioners were also the part of the incident which is alleged to have taken place.

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Learned HCGP for the respondent-State would submit that the charge sheet material discloses that these petitioners along with accused No.17 with an intention to commit the offences had formed an unlawful assembly, and the veracity of the allegations against these petitioners can be considered at the time of Trial and the same cannot be gone into in this petition.

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Considered the submissions made by the learned counsel for the parties.

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Injured witnesses in their further statement have stated that they came to know that these petitioners were also the part of the incident i.e., alleged to have taken place on 13.5.2019. The Police before submitting the charge sheet have not conducted a test identification parade or any other form of

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NC: 2023:KHC:41409 CRL.P No. 1429 of 2023

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identification in the Police Station to ascertain that these petitioners were also present as on the date and time of the incident.

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The specific allegation of C.W.3 is against accused No.17. The allegation against these petitioners is that, they along with accused No.17 pushed C.W.1 and 2 when they enquired with the accused why they were assaulting C.W.6 to 9. Except omnibus and general allegations there is no specific overt acts against each of the petitioner as to how and in what manner they assaulted or pushed C.Ws.6 to 9 and the petitioners cannot be prosecuted for the offences of obstructing the public servant from discharging his official duties only on the basis of omnibus and general allegations. Therefore, the continuation of the criminal proceedings will be an abuse of the process of law.

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Accordingly, I pass the following:

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ORDER

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i. The criminal petition is allowed.

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ii. The impugned proceedings in C.C. No.1449/2021 pending on the file of the Additional Civil Judge and JMFC, Bantawal, Dakshin Kannada, insofar it relates to the petitioners herein stands quashed.

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iii. The learned Magistrate, to proceed against other accused in accordance with law, without being influenced by

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NC: 2023:KHC:41409 CRL.P No. 1429 of 2023

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any of the observations made in this order, and the observation made, if any, is only for the purpose of this petition.

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iv. Pending applications, if any, do not survive for consideration and the same stands disposed of.

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Sd/JUDGE

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Sri K.Mohammad Thabsheer v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri K.Mohammad Thabsheer v. State of Karnataka

Case brief

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