Allowed

Mahammad Rashid v. the State of Karnataka

Karnataka HC1 Apr 2024CRL.P/1902/2024

Case brief

AI extract

What is this about?

This Criminal Petition under S. 482 Cr.P.C. sought quashing of proceedings for offences under IPC. The High Court allowed the petition, quashing charges against three petitioners due to lack of specific allegations, absence of T.I.P., and invalid cognizance for the main offence of obstructing a public servant.

What did the court decide?

Criminal proceedings in C.C. No.1449/2021 insofar as they relate to petitioners/accused Nos.3, 4 and 5 are quashed.

Mahammad Rashid Vs the State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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1 - NC: 2024:KHC:13119 CRL.P No. 1902 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 1902 OF 2024

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BETWEEN:

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MAHAMMAD RASHID, S/O ABDULLA, AGED ABOUT 25 YEARS, R/AT MARAKINNI NO.4-150, ADYANADKA POST, KEPU, D.K. DISTRICT - 574 260.

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Digitally signed by B K MAHENDRAKUMAR Location: High Court of Karnataka

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MOHAMMAD IJAZ C.H., S/O IBRAHIM K.P., AGED ABOUT 27 YEARS, R/AT CHAVARKKAD HOUSE, ADYANADKA POST, PERLA, KASARGOD, KERALA - 671 552.

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MOHAMMED INTHIYAZ, S/O ABDULLA, AGED ABOUT 25 YEARS, R/AT YERUKAJI ADYANADKAM, NO.1-87, ADYANADKA POST KEPU, D.K. DISTRICT - 574 260.

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…PETITIONERS

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(BY SRI. LETHIF B., ADVOCATE)

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NC: 2024:KHC:13119 CRL.P No. 1902 of 2024

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AND:

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THE STATE OF KARNATAKA, BY VITALA POLICE STATION, D.K. DISTRICT.

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REP. BY SPP HIGH COURT BUILDING, BANGALORE - 560 001.

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

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…RESPONDENTS

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(BY SRI. VINAY MAHADEVAIAH, HCGP)

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THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER IN C.C.NO.1449/2021 OF VITLA POLICE STATION FOR THE OFFENCE P/U/S 332, 324, 353, 186, 189, 143, 147, 148 R/W 149 OF IPC PENDING ON THE FILE OF THE COURT OF THE ADDL. CIVIL JUDGE AND J.M.F.C., BANTWAL, D.K., WHICH IS PRODUCED AT ANNEXURE-A IN THE ABOVE CASE.

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

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NC: 2024:KHC:13119 CRL.P No. 1902 of 2024

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ORDER

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Petitioners/accused Nos.3, 4 and 5 are charge-sheeted for the offences punishable under Sections 332, 324, 353, 186, 143, 147, 148 and 149 of IPC.

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The case of the prosecution is that, 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 with a stone. He further submits that the injured witnesses in their further statement have

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NC: 2024:KHC:13119 CRL.P No. 1902 of 2024

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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, 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 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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NC: 2024:KHC:13119 CRL.P No. 1902 of 2024

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The specific allegation 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.

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As rightly pointed out, Section 186 of IPC is the main offence and other offences flow from that. Section 195(1)(a) of Cr.P.C states that no Court shall take cognizance of any offence punishable under Sections 172 and 186 (both inclusive) of the IPC except on the complaint in writing of the public servant concerned or other public servant to whom he is administratively subordinate.

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A reading of the above provision makes it clear that to take cognizance for the offences punishable under Sections 186 of IPC there should be a written complaint and such complaint should be filed either by the officer who has been voluntarily obstructed in discharge of the public functions. The cognizance of the offence under Section 186 of I.P.C which is the main offence taken on the basis of final report submitted by the Police, lacks jurisdiction.

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The Hon'ble Apex Court in the case of Bandekar Brothers Private Limited and another -vs- Prasad Vassudev Keni and other reported in (2020) 20 SCC 1 has ruled that equally

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NC: 2024:KHC:13119 CRL.P No. 1902 of 2024

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important to remember is that if in the course of the same transaction two separate offences are made out, for one of which Section 195 Cr.PC is not attracted, and it is not possible to split them up, the drill of Section 195(1)(b) Cr.PC must be followed.

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The charge sheet material does not establish that the petitioners had a common object, and were actuated by that common object, and that object is one of those set out in Section 141 of IPC to constitute the offence of unlawful assembly.

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Therefore, the continuation of criminal proceedings against these petitioners will be an abuse in process of law. 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/accused Nos.3, 4 and 5 herein stands quashed.

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iii. The learned Magistrate, to proceed against other accused in accordance with law, without being influenced by any of the observations made in this order, and the

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NC: 2024:KHC:13119 CRL.P No. 1902 of 2024

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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/-

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JUDGE

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