Petitioner sought quashing of criminal charges for alleged murder conspiracy. High Court held lack of corroboration rendered proceedings an abuse of process and discharged the accused.
Impugned order under Section 227/228 Cr.P.C. set aside; petitioner discharged of offences.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 2007 OF 2023
BETWEEN:
SRINIVASA @ KULLA SEENA S/O LATE NANJAPPA AGED ABOUT 46 YEARS R/AT 41, MAHIMA RESIDENCY 3RD CROSS, SUNRISE LAYOUT YELACHENAHALLI, BENGALURU 560 078.
…PETITIONER
(BY SRI. SANDESH CHOUTA, SENIOR COUNSEL FOR SRI. ARNAV A BAGALWADI, ADVOCATE)
AND:
BY SUBRAMANYAPURA P S BANGALORE
Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA
REP BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE 560 001.
…RESPONDENTS (BY SRI. KIRAN S JAVALI, SPP-I FRO R1-STATE; NOTICE TO R-2 IS SERVED)
2 NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED 13.05.2022 PASSED BY THE LXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-69) IN S.C.NO.24/2019 FOR OFFENCE P/U/S.120-B, 143, 144, 147, 148, 427, 302, 307 R/W SECTION 149 OF IPC AND SECTION 25(1B)(b),27 OF ARMS ACT.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The order dated 13.5.2022 passed by the 68th Addl. City Civil and Sessions Judge, Bengaluru (CCH-69), by which, the application filed by the accused No.1 under Sections 227 and 228 of Cr.PC was dismissed, is impugned in this petition.
3
NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
and a case was registered in Crime No. 35/65/2015. It is alleged that the deceased with the same grudge along with his companions had murdered HarinagarGanesha on 23/10/2016 and a case was registered in Crime No. 650/2016. It is further alleged that the accused No.1 had got beaten the deceased(Jayanth) while he being in judicial custody. It is further alleged that IN the matter of club and the murder of accused No.1’s companion Harinagar Ganesha by the deceased(Jayanth) relates to old grudge against each other.
4
NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
accused No.9, and also informed that the deceased along with CW-1 & CW-2 is going on a bike from Canara Bank road towards Kanakapura Main Road, and informed other accused persons to crash the bike of the deceased and make him fall down.
5 NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
a) The accused No.1 was implicated in the case solely on the basis of voluntary statement of the accused No.2. Hence, in the absence of any corroborative material to establish that the accused No.1 was involved in the commission of the aforesaid crime, the continuation of the criminal proceeding will be an abuse of process of law
b) The learned Sessions Judge has committed an error in dismissing the application, since there is no prima facie case to prove against the accused No.1 and has erred in not applying his mind in a proper perspective and the same is not sustainable in law.
c) In support, he places reliance on the following
decisions:
1. (1979) 3 SCC 4 - Union of India -vs- Prafulla Kumar Samal & Anr.
2. Crl.RP No.1008/2008 (DD 22.10.2008) - Lakshminarayana -vsState of Karnataka by Tahalagattapura P.S.
3. 2014 SCC Online Kar 13550 -Ashok B Dani -vsState of Karnataka
4. (2019) 16 SCC 547 - Dipakbjhai Jagadishjchandra patel -vs- State of Gujarat and anr.
5. Crl.PNo.10860/2022 (DD2.1.2023)-Kadappa Sreyes Reddy -vs- State of Karnataka and anr.
6
NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
a) The other accused in their voluntary statement have stated about the involvement of the accused No.1, and the corroborative material produced along with the charge sheet clearly disclose the involvement of the accused No.1 in the aforesaid crime.
b) At the time of framing of charges, there is requirement of satisfaction only regarding the probability of the accused having committed the offence, and not of the proof of his culpability beyond reasonable doubt. Hence, the voluntary statement of the co-accused coupled with the corroborative material clearly makes it prima facie case to proceed against the accused No.1 herein.
c) The learned Sessions Judge has rightly rejected the application, and passed the impugned order, and the same does not warrant any interference.
d) In support, he places reliance on the following decisions:
i) State of Rajasthan -vs- Fatehakaran Mehdu (2017) 3 SCC 198,
ii) V K Verma -vs- CBI (2022 Crl.LJ 2741).
7
NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
8
NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
of accused No.2, the police have not placed any corroborative material to substantiate that, at the instance of accused No.1, the criminal conspiracy was hatched to do away the life of the deceased Jayanth. The police during the course of investigation, have recorded the statement of many as 47 witnesses, and none of the witnesses have spoken about the involvement of accused No.1 in the commission of the aforesaid crime.
"26. The scope of interference and exercise of jurisdiction under Section 397 Cr.PC has been time and again explained by this Court. Further, the scope of interference uynder Section 397 Cr.PC at a stage, when charge had been framed, is also well settled. AT the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence,
9
NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedure."
"10. Thus, on a consideration of the authorities mentioned
above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and
10
NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
cons of the matter and weigh the evidence as if he was conducting a trial."
11. Except the above statements no other material is there on record to come to the conclusion that there are grounds to presume that this petitioner committed the offence of conspiracy along with all or any of the accused Nos.1 to 8 in plotting the scheme for murdering the deceased. Besides this, in support of his contentions Sri. H.P. Leeladhar, learned counsel for the petitioner has relied upon the following decisions
1.2008 (2) Crimes 263 (SC) Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra. 2.1996(3) Crimes 85 (SC) Satish Mehra Vs. Delhi Administration and Another.
3.1998(1) Crimes 219(SC) Central Bureau of Investigation Vs, V.C. Shukla and Others.
4.1997 CRL.L.J. 2559 L.K. Advani Vs. Central Bureau of Investigation
12. In first of the above said decisions i.e. in 2008(2) Crimes 263 (SC) it is observed at paragraph 18 as under:-
para 18: " The basic ingredients of the offences of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which in not illegal in itself but is done by illegal means. It is therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. Yet as observed by this Court in Shivanarayan Laxminarayan Joshi & Ors. Vs. State of Maharashtra, a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible".
If the statements of the said witnesses, are examined in the light of these observations of the Hon'ble Supreme Court, it
11
NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
could be seen that they do not disclose the facts from which the commission of the offence of conspiracy could be inferred against the present petitioner (A9)
13. In he second of the said decisions i.e. 1996(3) Crimes 85 (Satish Mehra Vs. Delhi Administration and Others) the Hon'ble Supreme Court has observed at para Nos. 12 and 13 as under-
para 12:" The object providing such an opportunity as is envisaged in section 227 of the Code is enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code.
para 13: But when Judge, is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings at the stage of Section 227 of the Code itself".
In the light of these observation, it could be seen in the instant case that the statements of the said witnesses even taken at their face value, do not make out grounds to presume that this petitioner committed the offences of conspiracy.
14. On perusal of the judgment of the Hon'ble Supreme Court in the above said cases to the facts and circumstances of the case, where, except a voluntary statement of the co-accused saying
12
NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
that this petitioner- accused came to Bangalore along with accused No.1 in the year 2017, there is no material collected by the Investigating Officer to connect the accused with the crime and even accused Nos. 3 to 9 came to Bengaluru at the instance of accused No.1 for recovery of arrears of commission and there is no allegation against this petitioner that this petitioner sent those accused persons and also accused No.3 contacted accused No.1 after the incident, but not this petitioner and no CDR produced to show that this petitioner contacted accused Nos.3 to 9 in respect of either prior to the commission of offence or after the commission of offence. Therefore, it clearly reveals that the petitioner being the son of accused No.1 has been falsely implicated by the CW-2 did not lodge any complaint and he has narrated the incident only after the commission of incident by hearing the dame from CW.1, Therefore, considering the facts as held by the Hon'ble Supreme Court in the case of State of Haryana Vs/ Bhajan Lal and other cases stated supra, absolutely, there is no material on record to connect the accused with the crime either to frame charges under Section 120B or 109 or 302 read with Section 149 of IPC. Therefore, I am of the view, conducting proceedings against this petitioner-accused No.2 is nothing but abuse of process of law and the same is liable to be quashed
13
NC: 2023:KHC:23756 CRL.P No. 2007 of 2023
material, except the statement of co-accused, the continuation of criminal proceedings will be an abuse of process of law. In the absence of any prima facie case to proceed against the accused No.1, the learned Sessions Judge has committed an error in exercising the power conferred under Section 227 of Cr.PC and the same is not sustainable in law. Accordingly, I pass the following:
ORDER
i) Criminal petition is allowed.
ii) The impugned order dated 13.5.2022 passed in SC No.24/2019 by the learned 68th Addl. City Civil and Sessions Judge at Bengaluru (CCH-68) on the application filed by the accused No.1 under Sections 227 and 228 of Cr.PC is hereby set aside and consequently the application is allowed and the accused No.1 is discharged of the offences alleged against him.
Sd/JUDGE
BKM List No.: 19 Sl No.: 3
2 issues framed by the court
Whether, in absence of corroborative material beyond the voluntary statement of a co-accused, a prima facie case for conspiracy to murder is made out against the petitioner.
Whether quashing criminal proceedings against the petitioner amounts to an abuse of the process of the court.
Colour shows how this judgement treated each authority
Union of India vs. Prafulla Kumar Samal & AnotherExplained¶74
(1979) 3 SCC 4 Union of India -vs- Prafulla Kumar Samal & Anr. · Who else cites this
State of Rajasthan vs. Fatehakaran MehduExplained¶69
(2017) 3 SCC 198 State of Rajasthan -vs- Fatehakaran Mehdu · Who else cites this
V K Verma vs. CBIExplained¶70
V K Verma -vs- CBI (2022 Crl.LJ 2741)
Lakshminarayana vs. State of KarnatakaExplained¶88
Crl.RP No.1008/2008 (DD 22.10.2008) Lakshminarayana -vsState of Karnataka
Kadappa Sreyes Reddy vs. State of KarnatakaExplained¶101
Crl.PNo.10860/2022 (DD2.1.2023)Kadappa Sreyes Reddy -vs- State of Karnataka
3 provisions across 2 enactments
SRINIVASA @ KULLA SEENA
STATE OF KARNATAKA
LOKESH R
HEMANT CHANDANGOUDAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
