Shivakanth Vs the State of Karnataka

THIS CRL.RP FILED U/S 397 (1) OF CR.P.C (OLD), U/SEC. 438 R/W 442 OF BNSS (NEW), BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO A) ADMIT, CALL FOR RECORDS OF RECORDS.

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B) SET ASIDE THE ORDER DATED 10.10.2024 PASSED BY ADDL. DISTRICT AND SESSIONS JUDGE, BIDAR IN S.C.NO. 113/2022 ON ITS FILE AND THEREBY ALLOW THE DISCHARGE APPLICATION FILED BY THE PETITIONER/ ACCUSED NO.6 U/SEC. 227 OF CRIMINAL PROCEDURE CODE, IN THE INTEREST OF JUSTICE AND ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 20.03.2025 AT KALABURAGI BENCH AND COMING ON FOR PRONOUNCEMENT OF ORDER, BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE S RACHAIAH

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CAV ORDER

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(PER: HON'BLE MR. JUSTICE S RACHAIAH)

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The petitioner being aggrieved by the impugned order dated 10.10.2024 passed in S.C.No.113/2022 thereby rejecting

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the application filed by the petitioner for discharge under Section 227 of Cr.P.C.

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Factual matrix of the case :

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It is the case of the prosecution that on 05.06.2022 the younger brother of the deceased filed a missing complaint stating that his elder brother Jagbeer Singh was not seen. The respondent-Police registered a missing complaint in Crime No.98/2022. During the course of the investigation, the Police called the complainant on 16.06.2022 at about 7.00 A.M for

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enquiry. In that enquiry the complainant stated that the financial transactions was held between his elder brother and one Madhav Reddy. However, the said Madhav Reddy died in the year 2021. It is further stated that his elder brother married accused No.1 and both were residing in Zaheerabad. On receiving the said information the respondent-Police have interrogated accused Nos.1 and 2.

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During the said enquiry, the factual matrix of the said case has been unfolded in such a way that deceased Jagbeer Singh used to torture Mahananda in respect of financial transactions. Therefore, both accused Nos.1 and 2 had decided to eliminate the deceased. Accused No.1 stated to have met accused No.6 on 03.06.2022 at Dilram Lodge. The accused No.6 introduced accused Nos.3 and 4 and both the accused Nos.3 and 4 called accused No.5 and all of them have decided to kidnap the deceased Jagbeer Singh. Accordingly, on 05.06.2022 in between 11.00 A.M and 11.30 A.M they kidnapped the said Jagbeer Singh from Bidar bus stand. Accused Nos.3 to 5 were waiting at Noubad for arrival of accused No.1. Later, accused No.1 came in a car and took accused Nos.3 to 5 in the same car, they committed murder of

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the deceased. Accused No.2 also joined at Zaheerabad. In such a way, the respondent-Police have conducted investigation and submitted the charge-sheet.

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Heard, Sri.Sanjay A. Patil, learned counsel for the petitioner and Sri. Jamadar Shahabuddin, learned High Court Government Pleader for respondent No.1.

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It is the contention of the learned counsel for the petitioner who is arrayed as accused No.6 is that as per the charge-sheet averments, the petitioner had introduced accused Nos.3 and 4 to accused No.1 except that, there is no overt-act against the accused No.6.

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It is further submitted that even on reading the entire averments of the charge-sheet, no where it is stated that accused No.6 had conducted murder of the deceased. However, it is submitted that in the charge-sheet, the overt-act of this petitioner has not been forthcoming. Unless, the relationship between accused Nos.1 and 2 with the petitioner is established, it cannot be said that the present petitioner held criminal conspiracy with other accused to commit the murder of the deceased. Even, if the petitioner is allowed to face the trial, the

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possibility of being convicted is very bleak. Therefore, it is appropriate to discharge the accused from the case.

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Per Contra, the learned High Court Government Pleader vehemently justified in filing the charge-sheet and he submitted that, accused No.2 married accused No.1 on 11.04.2022. Both were residing at Zaheerabad in a rented house. Even, after her marriage with accused No.1 the deceased Jagbeer Singh used to call her and message her. The said fact was brought to the notice of accused No.1 by accused No.2. Accused No.1 decided to eliminate the deceased Jagbeer Singh and stated to have contacted his friends who is a petitioner herein. Thereafter, the petitioner had agreed that he would get his work done through his friends on payment of amount of Rs.5,00,000/-.

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It is further submitted that prima-facie there are materials to show that accused No.6 introduced other accused for the purpose of eliminating Jagbeer Singh. Therefore, it is not appropriate to discharge him from the case.

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Having heard the learned counsel for the respective parties, it is appropriate at this stage to refer the dicta of the

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Hon’ble Supreme Court in the case of State of

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MadhyaPradesh Vs. Sheetla Sahai and Others,¹ paragraph Nos.52 and 53, held as under:

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“52. In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr Tulsi that where the entire materials collected during investigation have been placed before the court as part of the chargesheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in favour of the accused.

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53. The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an

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1 (2009) 8 SCC 617

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offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless.”

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On careful reading of the above said judgment, it appears that the material collected during investigation has to be considered as true and genuine. The Court while framing the charge has to justify prima-facie that there are sufficient grounds to proceed with the case to a particular person. In another case, in the case of HemChand Vs. State of Jharkand² , paragraph No.14 held as under:

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“14. In State of M.P. v. Mohanlal Soni [(2000) 6 SCC 338 : 2000 SCC (Cri) 1110] this Court has held: (SCC p. 342, para 7)

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“7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to

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2 (2008) 5 SCC 11

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appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.”

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It was furthermore observed: (SCC p. 344, para 11)

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“11. … As is evident from the paragraph extracted above if the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence then the charge can be quashed.”

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We agree with the said view. See also State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] .”

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In this case, the Hon’ble Supreme Court held that however the evidence which the prosecution fails to prove the guilt of the accused, even if fully accepted before it is challenged in the cross-examination or rebutted by the defence evidence, if any, cannot show that accused conducted a

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particular offence in such circumstances, the charge against the accused cannot be quashed. In the particular case, the chargesheet materials that discloses that accused No.1 contacted accused No.6 who is the petitioner herein, the accused No.6 had introduced other accused and also instructed accused No.1 that he who pay the amount after the work is done. Accordingly, the other accused have committed murder of the deceased which is under instruction of the present petitioner. Therefore, it is not appropriate at this stage to arrive at a conclusion that there is no prima-facie material against the petitioner. Hence, I am of the considered opinion that the petition deserves to be dismissed.

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Ordered accordingly.

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Sd/(S RACHAIAH) JUDGE

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NM List No.: 19 Sl No.: 2

Shivakanth v. the State of Karnataka

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Shivakanth v. the State of Karnataka

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