IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.645/2019 BETWEEN:
MOHAMMED S/O. ABBAS AGED ABOUT 45 YEARS KOORNADKA HOUSE KEMMINJE VILLAGE PUTTUR TALUK DAKSHIN KANNADA. ... PETITIONER (BY SRI D.P.PRASANNA, ADVOCATE) AND:
STATE OF KARNATAKA BY PUTTUR POLICE D.K. DISTRICT REPRESENTED BY S.P.P. HIGH COURT COMPLEX BENGALURU-560 001. ... RESPONDENT (BY SRI S.RACHAIAH, HCGP) THIS PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.310/2014 ON THE FILE OF THE SR. CIVIL JUDGE AND ACJM, PUTTUR, D.K., FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 341, 504, 506, 323, 324, 427 READ WITH SECTION 149 OF IPC AND UNDER SECTION 2(A) OF KARNATAKA PREVENTION DESTRUCTION AND LOSS OF PROPERTY ACT AS PER ANNEXURE-A.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though matter is listed for orders, by consent of learned counsel appearing for parties, it is taken up for final disposal.
2. Petitioner, who has been arraigned as accused No.16 in the first charge sheet which came to be filed in C.C.No.1630/2003 is before this Court for quashing of the proceedings pending against him in C.C.No.310/2014 (split up charge sheet) contending interalia that in respect of all other accused, jurisdictional Courts have acquitted them after a full fledged trial and petitioner who stands on same footing as that of acquitted accused is entitled for same relief of acquittal by applying the principles of parity. Hence, he seeks for allowing the petition.
3. Sri S.Rachaiah, learned High Court Government Pleader appearing for the respondent-State sought to contend that in the event of this Court quashing the proceedings which are initiated against petitioner who is accused for the offences punishable under Sections 143, 147, 148, 341, 504, 506, 323, 324 and 427 read with Section 149 of IPC and Section 2(A) of Karnataka Prevention, Destruction and Loss of Property Act, 1981, it would send a wrong message in the Society as it would amount to granting a premium by way of acquittal for having absconded from trial. Hence, he prays for rejection of the petition.
4. Having heard learned counsel appearing for the parties and on perusal of case papers, it would disclose that case of the prosecution before trial Court was that on 13.04.2003 at about 10.15 p.m. near Mukve junction on the road situate near bus stop when CW.1 was proceeding on his scooter by putting Om plate, after attending Mahalingeshwara Temple Car Festival, accused persons by forming an unlawful assembly with an intention to commit offence had wrongfully restrained him and after having abused him with foul and filthy language, accused No.1 assaulted him with wooden club on right leg, accused No.2 assaulted him with iron rod on right hand, accused No.3 assaulted him with hand on back of the neck and accused Nos.4 to 6 instigated accused Nos.1 to 3 to assault him. They also caused damage to the scooter in which CW.1 was traveling and thereby he had suffered financial loss. It was also alleged that all the accused had threatened to murder CW.1.
5. On the basis of complaint so lodged by CW.1, jurisdictional Police registered an FIR in Crime No.50/2003 for the offences aforestated against Ashraff and 15 other accused persons. After completion of investigation, charge sheet came to be filed in C.C.No.1630/2003 and present petitioner was arraigned as Accused No.16. On account of accused Nos.10, 12 and 15 including the petitioner/accused No.16 absconding, split up charge sheet was ordered to be filed against them and trial was proceeded against other accused persons. After evaluating evidence, learned Magistrate by judgment dated 22.08.2008 (Annexure-E) acquitted accused Nos.1 to 9, 11 and 13 for said offences on the ground that prosecution had failed to prove the guilt of accused persons beyond reasonable doubt and also noticing the fact that CWs.1 and 2 had turned hostile and CW.1 had admitted that he and other accused persons had compromised the matter. Insofar as accused Nos.10, 12 and 15 who were absconding and against whom split up charge sheets had been filed came to be tried in C.C.No.14/2008 by jurisdictional Magistrate and after evaluating evidence, learned Magistrate acquitted said accused persons by judgment dated 27.04.2010 passed in C.C.No.14/2008 (second split up charge sheet).
6. It is the contention of Mr.D.P.Prasanna, learned counsel appearing for petitioner that at no point of time, petitioner had been arraigned as accused either at the initial stage of filing of FIR or had been summoned and produced or appeared before the learned Magistrate and he had no notice of the pending proceedings and as such, petitioner had not appeared before trial Court. The fact remains that in FIR except name of Ashraf, other 15 persons who had been arraigned as accused persons were shown to be as unknown. Subsequently, petitioner (Accused No.16) is said to have appeared before the learned Sessions Judge and obtained bail.
7. Learned HCGP is justified in submitting that petitioner, who had appeared before the learned trial Judge and enlarged on bail, had thereafter remained absent. NBW issued against petitioner could not be executed and petitioner could not be secured and it is for this reason split up charge sheet was ordered to be filed against present petitioner and accused Nos.10, 12 and 15 by learned Magistrate. Since all other accused persons who had faced trial had surrendered before the trial Court and are enlarged on bail, if the present petitioner is allowed to take advantage of his absence, it would definitely send a wrong message in the society. To put it differently, accused persons would fail to appear before the trial Courts for being tried in accordance with law and after noticing that other accused persons have been acquitted, would approach this Court for quashing the proceedings against him on the ground of parity.
8. In the light of judgment passed in C.C. No.1630/2003 and C.C. No.14/2008 which would indicate that allegations were against the other accused persons and even otherwise, prosecution witnesses having turned hostile, learned trial Judge has arrived at a conclusion that prosecution had failed to prove guilt of the accused beyond reasonable doubt. The allegations made against accused Nos.1 to 9, 11 and 13 and 10, 12 and 15 are similar and identical to the allegations made against present petitioner (accused No.16). Hence, continuation of proceedings against petitioner would definitely be onerous. Even otherwise, if trial is ordered to be continued against petitioner and taken to its logical end, it would not serve any fruitful purpose, particularly in the background of complainant himself having turned hostile on the ground that he has compromised the matter with accused persons, it would only be an exercise in futility, inasmuch as prosecution witnesses have turned hostile in two trials referred to hereinabove in respect of other accused. Same situation would unfold in the present case also and as such, it would be waste of precious judicial time.
9. In that view of matter, this Court is of the considered view that continuation of proceedings against petitioner would not only be an abuse of process of law, but would also be waste of precious judicial time. As such, petitioner would be entitled to the relief sought for.
10. Hence, the following:
ORDER i. Criminal petition is allowed.
ii. Proceedings pending in C.C.No.310/2014 on the file of Senior Civil Judge and ACJM, Puttur, Dakshina Kannada District registered for offences punishable under Sections 143, 147, 148, 341, 504, 506, 323, 324, 427 readwith Section 149 IPC and under Section 2(A) of Karnataka Prevention of Destruction and Loss of Property Act, 1981 is hereby quashed and petitioner is acquitted of the said offences.
iii. Petitioner is directed to pay costs of Rs.10,000/- to State on or before 21.04.2019.
iv. Receipt for having paid costs shall be produced in this proceeding on or before 22.04.2019.
v. List this petition for further orders on 24.04.2019 if above direction is not complied.
Sd/- JUDGE akc