IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1246/2018 BETWEEN:
1. Badruddin Gantalkatte S/o Bavu Beary, Aged about 39 years, R/at Urpel Pade, Gantalkatte, Kallabettu Village, Mangaluru Taluk, D.K.District – 574231.
2. Imtiyaz Gantalkatte S/o Bavu Beary, Aged about 31 years, R/at Urpel Pade, Gantalkatte, Kallabettu Village, Mangaluru Taluk, D.K.District – 574231. ...Petitioners (By Sri B. Lethif, Advocate) AND:
The State of Karnataka by Moodbidri Police Station, Rep by S.P.P., High Court Bldg., Bangalore – 560001. ... Respondent (By Sri. S.T. Naik, HCGP) This Criminal Revision Petition is filed under Section 397 read with Section 401 of Criminal Procedure Code praying to set aside the order dated 17.02.2018, passed by the Principal Sessions Judge, D.K.Mangaluru in S.C.No.24/2016 on application filed under Section 229 of Cr.P.C., consequently allow the application filed by the petitioners under Section 229 of Cr.P.C. for the offences P/U/S 143, 147, 148, 302, 120B r/w 149 of IPC.
This Criminal Revision Petition coming on for admission, this day, the Court made the following:
O R D E R The present revision petition has been filed by the petitioners/accused Nos.16 and 17 challenging the order dated 17.02.2018 passed by the Principal Sessions Judge, D.K.Mangaluru in S.C.No.24/2016 on the application filed under Section 229 of Cr.P.C. dismissing the discharge application.
2. I have heard the learned counsel for the petitioners/accused and the learned High Court Government Pleader for respondent-State.
3. Though this petition is posted for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
4. It is the submission of the learned counsel for the petitioners/accused that the case of the prosecution is that the accused Nos.16 and 17 have conspired with other accused persons and committed the alleged offence on 09.10.2015. But as per the statement of C.W.34 and 35 they have stated this along with other accused persons, accused Nos.16 and 17 conspired on 04.10.2015. But as on the said date, the marriage of their brother Farooq was held whose statement was also recorded as C.W.69. This goes to substantiate the fact that there was no question of them conspiring with the accused persons. He further submitted that there is no other evidence to show the presence of the accused at the place of the alleged incident. They have been wrongly implicated by the Police and the complainant only with an intention to harass them. The trial Court without considering the said facts and circumstances has come to a wrong conclusion and has dismissed the petition. On these grounds, he prayed to allow the petition.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the accused/petitioners are the members of Popular Front India a Muslim organization, within the vicinity of Moodabidri and that there is material to show that on the date of alleged incident the accused/petitioners have conspired with other accused persons and have committed the alleged offence. He further submitted that when the accused No.7 was apprehended and his voluntary statement was recorded, he has stated about the involvement of accused Nos.16 and 17 in the alleged crime. At this stage, it is not a fit case to discharge the accused/petitioners. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. Before considering the submissions made by the learned counsel appearing for the parties, it is well settled principle of law that while considering the application filed under Section 229 of Cr.P.C. for discharge, the Judge has to consider judicially whether on consideration of the material on records, it can be said that the accused are reasonably connected with the offence and that there is any probability of chances of the accused being found guilty. If the answer is in the affirmative, the Judge will be at liberty to frame the charge instead of discharging the accused. It is also well established principle of law that if a strong suspicion is created, the Court cannot say that there is no sufficient ground to proceed against the accused and the charge can be framed. Keeping in view the above said proposition of law, let me consider the submissions made by the learned counsel for the accused/petitioners.
8. It is the contention of the learned counsel for the petitioner that on 04.10.2015 when the prosecution alleges that there was a conspiracy, but there was marriage of his brother Farooz and they were busy. Under such circumstances, the alleged conspiracy to commit the alleged offence does not arise at all. But as could be seen from the statement of C.W.34 and 35, they have clearly stated that on 04.10.2015 at about 12.30 p.m., when they were proceeding to go to their house and they came near Shalimar Hall, there was a marriage festival and the people have gathered and at that time the accused persons talking and out of curiosity they went and told the one who has been conspired between them. Though the statement of C.W.69 shows that there was a marriage of his brother and the petitioners/accused No.16 and 17 were also there and have attended the marriage, but the fact remains that they were present on 04.10.2015 at the place where the marriage has taken place and the witness have also stated that there was presence of the petitioners/accused near the place where the particular marriage was held. Under such circumstances, it cannot be held that accused Nos.16 and 17 were not participated in the said conspiracy to commit the offence which has been committed by other accused persons. Be that as it may, the case of the prosecution is that the petitioners/accused Nos.16 and 17 have conspired with the other accused persons for commission of the alleged offences, under such circumstances, it is a matter of evidence. On the basis of records, it cannot be said that they have not conspired and they may be discharged.
9. Taking into consideration the above said facts and circumstances, I am of the considered opinion that the contention taken up by the learned counsel for the petitioners does not have any force to set aside the impugned order. In the light of the reasons stated above, the petitioners/accused have not made out any good grounds to interfere with the order passed by the trial Court.
The revision petition being devoid of merits, the same is liable to be dismissed. Accordingly, it is dismissed.
The above observations made in the order shall not come in the way of disposal of the main matter by the trial Court.
In view of the dismissal of the main petition, I.A. No.2/2018 does not survive for consideration and the same is dismissed.
GJM Sd/- JUDGE