Allowed

Mohammed Hani v. the State

Karnataka HC13 Sept 2024CRL.P/9348/2024

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a criminal petition seeking quashing of proceedings against the petitioner. Since co-accused were acquitted due to insufficient evidence and hostile witnesses, the Court held further trial futile and quashed the split-up charge sheet.

What did the court decide?

Criminal proceedings in C.C. No.3317/2019 pending before P.C.J. and J.M.F.C. Udupi were quashed qu ว่าเป็นผู้ร้องเรียน.

Mohammed Hani Vs the State — Civil Procedure and Limitation | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 13^TH DAY OF SEPTEMBER, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE M.NAGAPRASANNA

¶7

CRIMINAL PETITION NO. 9348 OF 2024

¶8

BETWEEN:

¶9

MOHAMMED HANI S/O SHAHIDUDDIN AGED ABOUT 31 YEARS, RESIDING AT ‘HASEENA MANZIL’ AGRAHARA, KATAPADY, KATAPADY POST, YENEGUDDE VILLAGE, UDUPI – 574 105.

¶10

…PETITIONER

¶11

(BY SMT. HALEEMA AMEEN, ADVOCATE)

¶12

AND:

¶13

THE STATE

¶14

Digitally signed by KAVYA G Location: High Court of Karnataka

¶15

BY SHO, HIRIADKA POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, AMBEDKAR VEEDHI, BENGALURU – 560 001.

¶16

MUBASHIRA BEGUM W/O MOHAMMED YASIN, AGED ABOUT 48 YEARS, RESIDING AT ‘BISMILLAH MANZIL’ APNE GHAR ARCHADE CROSS, KATAPADY POST, YENEGUDDE VILLAGE,

¶17

¶18

NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶19

UDUPI – 574 105.

¶20

…RESPONDENTS

¶21

(BY SMT.SOWMYA R., HCGP FOR R-1)

¶22

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C.,(528 OF BNSS) PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN THE SPLIT-UP CASE NUMBERED AT C.C.NO.3317/2019 (MAIN CASE C.C.NO.945/2015 (CR.NO.2/2014 OF HIRIADKA P.S) PRODUCED AT ANNEXUREE HEREWITH PENDING BEFORE THE PRL.CIVIL JUDGE AND J.M.F.C UDUPI REGISTERED FOR THE OFFENCES P/U/S 379, 323, 384, 504, 109, 201 R/W 34 OF IPC.

¶23

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶24

CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

¶25

ORAL ORDER

¶26

Petitioner/accused No.7 is before this Court calling in question proceedings in C.C.No.3317 of 2019 registered for offences punishable under Sections 379, 323, 384, 504, 109, 201 r/w Section 34 of the IPC.

¶27

Heard the learned counsel Smt Haleema Ameen appearing for petitioner and Smt Sowmya R, learned High Court Government Pleader appearing for respondent No.1.

¶28

¶29

NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶30

Petitioner along with other accused gets embroiled in a crime in crime No.2 of 2014 registered for the afore-quoted offences. The crime was registered based upon an incident that is said to have occurred on 07-01-2014. The police, after investigation, filed a chare sheet on 20-04-2015 against all the accused. The petitioner was not available for trial at the relevant point in time. The concerned Court draws an order of split charge sheet against the petitioner in C.C.No.3317 of 2019. The other accused i.e., accused Nos.1 to 6 are all acquitted of the afore-quoted offences in terms of the order of acquittal dated 17-11-2023 passed by the concerned Court. Since split charge sheet was issued against the petitioner, the petitioner is now sought to be tried by the concerned Court in C.C.No.3317 of 2019.

¶31

Learned counsel for petitioner would vehemently contend that the reasons rendered by the concerned Court to acquit accused Nos.1 to 6 would completely become applicable to the case of the petitioner as well, as the finding of the Court is that the prosecution has failed to prove the guilt beyond all reasonable doubt and the finding is accused Nos.1 to 6 along

¶32

¶33

NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶34

with 7 having a grudge which had certain religious overtones had registered a crime. If the evidence against all the accused is the same, learned counsel would submit that even if the petitioner is put to trial, he would get acquitted.

¶35

Learned High Court Government Pleader, on the other hand, would refute the submissions contending that the petitioner is accused No.7. Accused Nos.1 to 6 have undergone trial and have got acquitted and therefore, the petitioner should not be shown any indulgence, he should come out clean in a full blown trial.

¶36

The afore-narrated facts are not in dispute. The petitioner gets embroiled in a crime along with accused Nos.1 to 6 is for the afore-quoted offences. The offences are the ones punishable under Sections 379, 323, 384, 504, 109, 201 r/w Section 34 of the IPC which require a collective act by the accused. If it is a collective act by all the accused and accused Nos.1 to 6 have been acquitted by the competent Court and the

¶37

said acquittal has become final, permitting further trial against this petitioner on the same allegation to eventually get

¶38

5 - NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶39

acquitted would be waste of precious judicial time. Therefore, I deem it appropriate to exercise my jurisdiction under Section 482 of the Cr.P.C. and obliterate the proceedings against the petitioner. The view of mine, in this regard, is fortified by the judgment of this Court dated 02-09-2022 passed in

¶40

Crl.P.No.7720/2022, which reads as follows:

¶41

“4. The learned Sessions Judge, by his order dated 01.12.2021, acquits accused Nos.1 to 11, 14, 16 to 18 and 21 in S.C.No.103/2018. At the relevant point in time, when the trial was on, the petitioner was not available for trial, as he was allegedly absconding and a split charge sheet was issued against the petitioner in S.C.No.87/2019 in terms of an order of the learned Sessions Judge dated 10.06.2019. The continuation of proceedings in S.C.No.87/2019 is what drives the petitioner to this Court in the subject petition.

¶42

5. Learned counsel, Sri. Lethif B., appearing for the petitioner would contend that the allegations are the ones punishable under Sections 143, 147, 148, 448, 323, 324, 427, 395, 149 of the IPC. The said allegation is necessarily to be common against all the accused and it is infact common against all the accused. The acquittal order passed by the concerned Court is on the basis of the complainant himself turning hostile. In the teeth of the fact that the complainant himself turned hostile, the Court holds that the prosecution has failed to prove the guilt beyond all reasonable doubt and therefore, the petitioner is entitled to be the same order as is passed by the concerned Court acquitting the aforesaid accused.

¶43

6. Learned HCGP would however refute the submission to contend that the petitioner would escape trial, should necessarily face trial and considered for acquittal by the concerned Court and this Court should not interfere at this juncture, as a person, who has escaped trial should not be shown any indulgence under section 482 of Cr.P.C .

¶44

¶45

NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶46

7. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.

¶47

8. The afore-narrated facts are not in dispute. The allegation against the petitioner are the ones punishable under Sections 143, 147, 148, 448, 323, 324, 427, 395, 149 of the IPC. The allegation was against 22 accused and the offences alleged were common, the allegations are also common. The concerned Court, by its order dated 01.12.2021, acquits accused Nos.1, to 11, 14, 16 to 18 and 21 by rendering the following reason:

¶48

REASONS

¶49

9. Poin"t No.1 to 5: The P.W.1 has stated that on 15.09.2013 at about 8.30 p.m. when P.W.4 was insider the Bar, somebody picked up quarrel with him and those persons damaged the Bar and hence, he sustained injuries. He has also stated that, the P.W.2 also sustained injuries in the incident and both of them taken treatment in the Wenlock hospital. The P.W.2, P.W.4 and Babanna sustained injuries and therefore, he filed the first information before the Police. He has deposed that the police came to the Bar and drawn the panchanama in Ex.P.2. The P.W.2 has deposed that when he was in the Bar of P.W.1 many people assembled and one of them thrown stone towards him and therefore, himself and P.W.4 sustained injuries and took treatment in the hospital.

¶50

10. P.W.3 has deposed that on 15.09.2013 at about 8.30 p.m. the P.W.4 was inside the Bar, about 25 persons came to the Bar and there was quarrel between P.W.4 and those 25 persons. He has deposed that such 25 persons damaged the Bar and he took treatment in Wenlock hospital for the injuries sustained in the incident. The P.W.1 to 3 have not stated the name of any of the accused of this case and even not identified the accused. The prosecution treated these witnesses hostile and cross examined. The P.W.1 to 3 have totally denied the allegation that the accused of this case have quarrelled with P.W.4, assaulted P.W.7 to 7, damaged the Bar and committed dacoity of Rs.2,000/- from the Bar.

¶51

¶52

NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶53

11. The P.W.4 to 7 have totally denied the incident itself. The P.W.8 and P.W.9 have deposed that they have not witnesses the incident. The P.W.4 to 9 have been cross examined by the prosecution and even in the cross-examination the P.W.4 to 9 denied the allegation made by the prosecution. Therefore, there is no evidence against the accused that they have formed unlawful assembly, committed criminal trespass in the Bar of P.W.1, voluntarily caused hurt to P.W.1 to 7 and committed dacoity of Rs.2,000/- from the Bar of P.W.1. Hence, the accused cannot be convicted for the offences alleged against them because of insufficient evidence. Accordingly, I answer these points in the Negative and proceed to pass the following:

¶54

ORDER

¶55

Acting under Section 232 of Code of Criminal Procedure the accused No.1 to 11, 14, 16 to 18 and 21 are acquitted for the offences punishable under Section 143, 147, 148, 448, 323, 324, 395, 427 r/w 149 of Indian Penal Code.

¶56

Their bal bond stands cancelled.

¶57

Office is directed to retain the material objects as they are required in split up cases."

¶58

9. The reason for acquitting the other accused as afore-quoted is the fact that the complainant himself had turned hostile and other witnesses had not supported the charge sheet. If the complainant had turned hostile and it resulting in acquittal of the aforesaid accused, it cannot but be said that the same would be applicable to the petitioner as well, notwithstanding the fact that he was not available for trial. It is not the case of sending the petitioner for trial for the very same offences and result being the same as is ordered on 01.12.2021 in S.C.No.103/2018. It would be an exercise in futility to permit further trial, which would be of no utility and be a waste of judicial time.

¶59

10. The view of mine, in this regard, is fortified by the judgment rendered by a Co-ordinate Bench of this Court in Crl.P.4796/2017, wherein the Co-ordinate Bench considering identical set of facts has held as follows:

¶60

¶61

NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶62

“12. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that petitioner/accused was never traced and nonbailable 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:

¶63

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

¶64

¶65

NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶66

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:

¶67

“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 coaccused. Accused acquitted by giving benefit of doubt.”

¶68

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

¶69

10 - NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶70

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 crossexamination 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.P-40, 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.

¶71

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 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

¶72

11 -

¶73

NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶74

similar, identical and in fact, it is replica of charge made against accused Nos.1 to 23 and 25 to 33, who 15 were tried in S.C.No.12/2007, 94/2007 and 26/2008 and had been acquitted.

¶75

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.

¶76

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 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

¶77

12 -

¶78

NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶79

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 co-accused 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.

¶80

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

¶81

Hence, I proceed to pass the following:

¶82

ORDER

¶83

(i) Criminal petition is hereby allowed.

¶84

(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 Police Station, is hereby quashed insofar petitioner is concerned.

¶85

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.”

¶86

The Co-ordinate Bench was considering a case where the co-accused who had escaped trial had not surrendered or was not arrested by the police.

¶87

In the light of there being no evidence against any of the accused and the split up charge against the petitioner being tried now before the learned Sessions Judge would become an exercise in futility. In the teeth of there being no evidence or a specific charge against this petitioner, that was not charged against others, I deem it appropriate to obliterate the proceedings against the petitioner.”

¶88

13 -

¶89

NC: 2024:KHC:37766 CRL.P No. 9348 of 2024

¶90

In the light of the afore-quoted order and the reasons rendered in Criminal Case No.945 of 2015 qua accused Nos.1 to 6, the petitioner is entitled to succeed, for the very same reasons

¶91

rendered by this Court supra .

¶92