IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA WRIT PETITION NO.55102/2017 (GM-RES) BETWEEN:
Hassan @ Mohammed Hassan, S/o Aboobakkar @ M Hameed, Aged about 31 years, R/at No.14-455, Near Madda Parliya-
Masjid Kaikamba, Bemooda Village, Bantwal Taluk, D.K.District – 574 219.
… PETITIONER (By Sri. Abdul Ansar P. Advocate for Sri Lethif B., Advocate) AND:
The State of Karnataka By Police Sub-Inspector, Bantwal Town Police, Rep. by the S.P.P., High Court Building, Bangalore-560 001.
(By Sri. S.Rachaiah, HCGP) ... RESPONDENT This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the entire proceedings against the petitioner in C.C.No.638/2011 (Crime No.139/2008) of Bantwal Town Police Station, D.K. District, on the file of the Addl. Civil Judge and JMFC, Bantwal, D.K. Mangalore, which is produced at Annexure-F.
This writ petition coming on for Preliminary Hearing this day, the Court made the following:
ORDER Heard the learned Counsel for the petitioner and also the learned High Court Government Pleader. Perused the records.
2. The petitioner was arraigned as accused No.4 in Sessions Case No.4/2012 on the file of the I Addl. District & Sessions Judge, D.K.Mangalore. He was split up due to his absence and failed to secure the presence of the accused (petitioner herein). Therefore, the Trial Court proceeded against accused Nos.1, 3 and 5. Ultimately after due trial, the said accused Nos.1, 3 and 5 were acquitted by the Trial Court for the offences punishable under Sections 143, 341, 506, 326, 307, 120B read with Section 149 of Indian Penal Code.
3. The learned Counsel for the petitioner submits that the allegations made against the other accused persons who were acquitted and this petitioner are one and the same. They are inter-twined with each other and further there is no distinct and separate allegations made against this petitioner so as to try him once again. Under the above said circumstances, benefit of acquittal of the other accused persons shall also be extended to the petitioner.
4. The learned High Court Government Pleader with all responsibility submits that the other accused have been acquitted and the said judgment of the Sessions Court in S.C.No.4/2012 dated 16.11.2016 has not been subjected to any appeal by the Government.
5. Before adverting to the factual aspects of this case, it is just and necessary to note here some of the decisions of the Hon’ble Supreme Court and the High Court as to whether this Court can extend the benefit of such acquittal to the absconding accused also. It is worth to mention here a decision of this Court in Crl.Petn.No.200008/2015 dated 23.01.2015 in the case of Saibanna Vs. The State of Karnataka, wherein at paragraphs 13 and 14 , it is observed as hereunder:
13. In this regard, it is worth to note here a decision of the Apex Court reported in AIR 2005 SC 268 in the case of Central Bureau of Investigation Vs. Akhilesh Singh, wherein, it was held that:
“Quashing of charge and discharge of the accused when main accused who alleged to have hatched conspiracy and who had motive to kill the deceased were already discharged, that matter had attained finality, the discharge of co-accused by High Court by holding that no purpose would be served in further proceeding with case against co- accused held proper.”
14. In another decision reported in 2002(1) KCCR 1 in the case of Muneer Ahmed Qureshi, Muneer @ Gaun Muneer V/s State of Karnataka by Kumarswamy Layout Police, wherein this Court has held that: -
“Entire case of the prosecution as against six accused is practically inseparable and individual one and especially when the Judgement of acquittal is passed, when P.W.1 denies the entire incident or the role of the accused. This reasoning of acquittal would also definitely enure to the petitioner. Even if the petitioner is tried there cannot be any other material other than what is already produced and considered by Trial Court. In such circumstances it will be an exercise in futility to make the petitioner to undergo the ordeal of crime, and then to be acquitted.
Holding that the proceeding against the accused person who was absconding and subsequently against whom a split up charge sheet was filed was quashed.”
6. It is further made clear that whenever the factual aspects are one and the same and the allegations are inter-twined and allegations are also one and the same and after thorough examination of the evidence recorded by the Court, the Court has acquitted the other co-accused persons. The same benefit has to be extended to the other accused also.
7. In this background, let me have the brief factual aspects of this case to ascertain whether the allegations are same against this petitioner also and evidence proposed by the prosecution is also one and the same.
8. The Bantwal Town Police have registered a case on the basis of a complaint filed by one Bhaskar examined as PW1 before the Trial Court in Crime No.139/2008, wherein it was alleged that PW1 was running a tailoring shop in front of Parlia Hospital, B.C.
Road and that his house and shop are in Muslim dominated area. Earlier whenever there were communal clashes at B.C.Road, either the tailoring shop of the complainant or his brother’s shop were targeted of the stone pelting and arsoning, due to which the said complainant had suffered damages. It is also alleged that there were cases against those incidents and some of the people were waiting for taking advantage against the complainant in this regard. It is specifically stated that on 27.08.2008 at about 8.00 p.m. the complainant had locked his tailoring shop and was returning to his house at Kodange. At about 8.15 p.m. near Parlia Government Guest House, when he reached the shop of one Nagesh, an autorickshaw driver came from Parlia side and waylaid PW1 and three inmates and the autorickshaw driver got down holding talwars from the autorickshaw and surrounded the complainant. They all abused the complainant in filthy language on the ground that he has given complaint to the police and threatened him with dire consequences and assaulted him and attempted to commit his murder and causing certain injuries on his wrist and other parts of the body. PW1 shouted and the assailants sped away in the autorickshaw from the said place. On these allegations the police have investigated the matter and submitted the charge sheet.
9. The Trial Court has framed the charges, which are also in my opinion relevant so far as the common allegations are concerned which reads as follows:
“6. The points that arise for my consideration are as below:
1. Whether the prosecution proves beyond reasonable doubt that A1, A3 and A5 along with remaining accused formed an unlawful assembly and conspired to kill the PW.1 with deadly weapons and thereby committed the offence?
2. Whether the prosecution further proves beyond reasonable doubt that on 27.8.2008 at about 8.15 p.m. the accused waylaid the PW.1 and assaulted him with talwars with an intention to kill him by aiming the blow on his neck and when PW.1 blocked, he was severely injured on his right wrist and thereby committed the offence U/s 307, 326 and 341 of IPC?”
10. On perusal of the above said points for consideration by the Trial Court, the Trial Court has considered the allegations against accused Nos.1, 3 and 5 and also against the present petitioner and other accused persons. Therefore, it also indicates there are common allegations against all the accused persons.
11. The prosecution examined as many as 16 witnesses and marked Exs.P1 to P20 and material objects M.Os.1 to 6. The Trial Court after considering the oral and documentary evidence on record has suspected the happening of the incident itself and ultimately the Court came to the conclusion that the prosecution has not proved the case against the accused persons and giving benefit of doubt to such accused 1, 3 and 5 they were acquitted.
12. On careful perusal of the entire evidence recorded before the Trial Court and the points for consideration and the appreciation of the evidence by the Trial Court, it clearly indicates that the allegations made against this petitioner and other accused persons are one and the same and they are inseparable in nature and therefore, in my opinion, the benefit of the acquittal so far as the other accused are concerned has to be extended to this petitioner also. As he submitted that no appeal has been preferred against the said judgment of acquittal, no purpose would be served and even if the accused is ordered to be tried before the Trial Court it would be a very futile exercise by the Trial Court and waste of judicial time.
13. Hence, I proceed to pass the following:
ORDER 1. The petition is allowed.
2. Consequently, the proceedings in C.C.No.638/2011 as split up case registered against the petitioner of Bantwal Town Police Station pending on the file of Addl. Civil Judge & JMFC, Bantwal, D.K. Mangalore, which is yet to be committed to the Court of Sessions at that stage itself, all further proceedings are hereby quashed.
Sd/- JUDGE ap*