IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4632/2014 BETWEEN:
1. MR.ABDUL MAZAR S/O ABDUL KHUDDUS, AGED ABOUT 37 YEARS, # 2/1, 3RD CROSS, HAINES ROAD, BHARATHI NAGAR, BENGALURU.
2. MR. NAUSHAD ANJUM S/O FAZLUL REHMAN, AGED ABOUT 37 YEARS, # NO.43, NEAR CORPORATION PARK, SLAUGHTER HOUSE ROAD, ‘B’ STREET SHIVAJI NAGAR, BENGALURU-560 051.
(BY SRI PRABHAKAR J, ADVOCATE) AND:
1. MR.SADIQ PASHA S/O S.ABDUL KHALEED, AGED ABOUT 44 YEARS, #274, JAIN TEMPLE ROAD, SHIVAJI NAGAR, BENGALURU-560 001.
…PETITIONERS 2. STATE BY BHARATHI NAGAR POLICE STATION REPRESENTED BY LEARNED PUBLIC PROSECUTOR.
... RESPONDENTS (BY SRI S.P.S.KHADRI, ADVOCATE FOR R1 SRI S. CHANDRASHEKARAIAH, HCGP. FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE PROCEEDINGS AGAINST THE PETITIONERS FINAL REPORT FILED IN C.C.NO.53209/13 ON THE FILE OF THE XI ADDL.C.M.M., BENGALURU ETC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners are accused Nos.15 and 9 respectively in Crime No.85/2013. After investigation, charge sheet is laid against 15 accused persons for the offences punishable under Sections 143, 147, 148, 323, 324, 427, 120(B), 395 r/w. 149 of IPC.
2. The case of the prosecution is that:
All the accused persons entered into a criminal conspiracy and in furtherance thereto, on 13.04.2013, at about 1.45 p.m., accused persons trespassed into Bright Jewellers Shop, belonging to the complainant, assaulted CWs.10 and 11 causing simple injuries, damaged the showcase glass and took away gold ornaments from the said shop.
3. Learned counsel for the petitioners submits that the charge sheet does not disclose any material proof of involvement of the petitioners namely, accused Nos.9 and 15 in the alleged offences. He points out that in column No.7 of the charge sheet itself, it is stated that except accused No.15, other accused were present at the spot. Under the said circumstance, prosecution of the petitioners is illegal and is a sheer abuse of process of law.
4. Refuting the contentions of the learned counsel for the petitioners, learned High Court Government Pleader submits that the prosecution has invoked Section 120(B) of IPC and there are specific allegations that, all the accused were parties to the alleged conspiracy and the alleged offences were committed pursuant to the conspiracy hatched by the petitioners. Though there is no direct evidence in proof of criminal conspiracy, yet solely on that ground, the case of the prosecution cannot be doubted. Insofar as accused No.9 is concerned, learned HCGP submits that the direct allegations are made against him alleging that he has assaulted CWs.10 and 11 with hands and reapers.
5. On hearing the learned counsel for the parties and on perusal of the charge sheet, I find that even though accused No.15 is arraigned as one of the co- accused, yet, except the voluntary statement of accused No.15, no other material is available on record either in proof of his involvement in the alleged criminal conspiracy or with regard to his involvement in other offences alleged by the prosecution. In column No.7 of the charge sheet, the investigating agency has stated that accused No.15 was not present during the occurrence of the incident. There is nothing on record to indicate that accused No.15 was even present during the alleged conspiracy on 13.04.2013. In that view of the matter, prosecution of accused No.15 being prima facie illegal, cannot be sustained. However, insofar as accused No.9 is concerned, specific allegations are leveled against him stating that he along with accused Nos.3, 5, 7 and 9 assaulted CWs.10 and 11 with hands and reapers.
6. The contention of the learned counsel for the petitioners that accused No.9 is not identified either by the complainant or CWs.10 and 11 also cannot be taken as ground to quash the proceedings initiated against him. Records indicate that accused No.9 remained absconding and secured anticipatory bail and hence, there was no occasion for the prosecution witnesses to get him identified through the witnesses.
7. For the above reasons, petition is partly allowed.
Proceedings pending on the file of the XI Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru, in C.C.No.53209/2013 is quashed only insofar as accused No.15 – Sri Abdul Mazar is concerned.
So far as accused No.9 is concerned, proceedings shall continue in accordance with law.
Sd/- JUDGE nvj