IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.1027 OF 2016 Between:
State of Karnataka by Ashok Nagar Police Bengaluru City Represented by State Public Prosecutor High Court Building Bengaluru – 560050.
... Petitioner (By Sri. Thejesh .P – HCGP) And:
Ameen Pasha Ekbal Pasha Aged about 32 years No.Nil, 1st Cross Mekka Mosque Galli Layar Palya, Bengaluru-560050.
... Respondent (By Sri. T Swaroop – Advocate) ****** This Crl.R.P. is filed under Section 397 r/w Section 401 of the Code of Criminal Procedure, praying to, set aside the order dated 02.04.2016 passed by the LVI Additional City Civil and Sessions Judge, Bengaluru City in S.C.No.323/2011 passed in respect of offences p/u/s 399, 402 of IPC registered in Cr.No.561/2006 of Ashok Nagar Police Station, Bengaluru City.
This petition coming on for orders, this day, the Court made the following:
O R D E R This petition is filed by the State seeking for a direction to set aside the order dated 02.04.2016 passed by the LVI Addl. City Civil & Sessions Judge, Bengaluru City in S.C.No.323/2011 discharging the accused – respondent herein of the alleged offences under Sections 399 and 400 of IPC.
2. Heard Shri Thejesh P, learned HCGP for the petitioner – State and Shri T. Swaroop, learned counsel for the respondent – Accused No.1. Respondent – Accused is present in court.
3. The case of the prosecution is that on receiving credible information, when the police rushed to the spot near burial ground at Hosur Road as on 17.11.2006 at about 3.30 a.m., they found the accused persons preparing to commit dacoity armed with deadly weapons. At once, the police are said to have surrounded the said place and apprehended the accused persons and seized from their possession deadly weapons such as button knives, cycle chain, long, etc. Thereafter they registered a case in Crime No.561/2006 for the offence punishable under Sections 399 and 400 of IPC against the accused persons and the Investigating Officer after completing the investigation, filed a charge sheet. The Committal Court passed an order committing the case for trial to the court of Sessions. S.C.No.602/2010 in respect of the co-accused No.4 ended in acquittal and S.C.No.104/2007 in respect of co-accused Nos.3 and 5 too ended in acquittal. The case in respect of the respondent – Accused No.1 was split up and registered as S.C.No.323/2011. In view of the order of acquittal of the co-accused Nos.3, 4 and 5, the court below passed an order dated 2.4.2016 closing the case against the respondent – Accused No.1 as well. It is this order passed in S.C.No.323/2011 dated 02.04.2016 discharging the respondent from the alleged offences which is under challenge by the petitioner – State in this revision petition.
4. Learned HCGP for the State has taken me through the charge-sheet laid against this accused in S.C.No.323/2011 in respect of the alleged offence under Sections 399 and 400 IPC. It is his contention that merely because the co-accused Nos.3, 4 and 5 have been acquitted of the offences leveled against them, the said benefit cannot be extended to the present respondent – Accused No.1 as well, in view of the fact that the present accused is required to face trial. He contends that the procedure prescribed under the Cr.P.C. has not been followed. In that, when the trial of the case has not been taken to its logical end, it was not in the jurisdiction of the court below to have closed the case against Accused No.1. Even when the accused was still absconding, the court below ought not to have proceeded to close the case but should have sent the file to enter the same in the register of long pending cases as provided under the Cr.P.C.
Further, even in the absence of the accused, evidence of witnesses ought to have been recorded by the court below which could be utilized at the time of trial after the arrest of the absconding accused.
Hence, the learned Government Pleader for the State contends that the accused ought not to have been discharged of the offences leveled against him and hence he prays that the petition be allowed and the impugned order passed by the court below in S.C.No.323/2011 dated 2.4.2016 be set aside.
5. Learned counsel Shri T. Swaroop appearing for the respondent – accused contends that the court below, relying on a Division Bench judgment of this court in the case of STATE OF KARNATAKA, BY SUB- INSPECTOR OF POLICE, BAGEPALLY POLICE vs. VADDE YERRA VENKATARAMANA @ RAJU AND OTHERS (ILR 2003 KAR 3958) wherein it is held that ‘even if the presence of accused is secured, the evidence against the accused in this case is very minimal and a conviction would have been impossible, case will have to be closed’, has rightly discharged the accused – respondent herein who remained absconded. Hence, the learned counsel contends that the judgment of the court below discharging the accused, needs no interference.
6. On going through the contentions advanced by the learned counsel for the parties and the material on record, though the accused has now been secured and is very much present before court, I find that no useful purpose would be served in directing the court below to conduct trial against the accused since there is neither any material to proceed against him nor to convict him for the offence under Sections 399 and 400 IPC. Hence, I proceed to pass the following:
ORDER The revision petition filed by the State under Sections 397 & 401 of Cr.P.C. is hereby rejected. Consequently, the impugned order passed by the court below in S.C.No.323/2011 dated 2.4.2016 discharging the accused – respondent herein from the alleged offences under Sections 399 & 400 IPC, is hereby confirmed.
Sd/-
JUDGE KS