Karnataka High Court
Sri Sunil Kumar @ Silent Sunil vs Additional Commissioner Of Police on 7 November, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 24.09.2025
Pronounced on : 07.11.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.14198 OF 2024 (GM - RES)
BETWEEN:
SRI SUNIL KUMAR @ SILENT SUNIL
S/O KRISHNA
AGED ABOUT 36 YEARS
RESIDING AT NO.S-24
FORTUNE ICON APARTMENT
JODIDHAR ASWATHAPPA LAYOUT
SAHAKARNAGAR, BENGALURU - 560 092.
... PETITIONER
(BY SRI MAYUR D.BHANU, ADVOCATE A/W
SRI SHAMANTH GOWDA J., AND
SRI CHARAN N.S., ADVOCATES)
AND:
1. ADDITIONAL COMMISSIONER OF POLICE
(EAST), BENGALURU CITY - 560 001.
2. DEPUTY COMMISSIONER OF POLICE
(ULSOOR DIVISION)
BENGALURU CITY - 560 001.
2
3. ASSISTANT COMMISSIONER OF POLICE
(YELAHANKA SUB-DIVISION)
BENGALURU CITY - 560 001.
4. THE STATE BY
POLICE INSPECTOR AND
STATION HOUSE OFFICER
YELAHANKA POLICE STATION
BENGALURU - 560 092.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL. SPP)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE
CR.P.C., PRAYING TO QUASH THE ORDER BEARING
NO.CRM(3)/COP/263/2017 DATED 07.3.2017 PRODUCED AS
(ANNEXURE A1) PASSED BY RESPONDENT NO. 1 AND
CONSEQUENT ORDER, DATED 9.3.2017 IN CRIME NO.58/2017 ON
THE FILE OF THE XLIV ACMM, BENGALURE PRODUCED AS
(ANNEXURE C), AND ALL FURTHER PROCEEDINGS THERETO AS
ILLEGAL AND AB INITIO VOID AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 24.09.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner-accused No.12 is before this Court calling in
question the entire proceedings in Spl.C.C.No.414 of 2017, arising
out of Crime No.58 of 2017 for offences punishable under Sections
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399, 402, 109, and 120B of the IPC, Sections 25, 27 and 30 of the
Arms Act, 1959 and Sections 3(1)(ii), (2) and (4) of the Karnataka
Control of Organized Crimes Act, 2000 (hereinafter referred to as
'KCOCA' for short).
2. Facts in brief, germane, are as follows:
2.1. A complaint is registered on 05-02-2017 which becomes
a crime in Crime No.42 of 2017 before the Yelahanka police station,
which leads to arrest of an accused by name Satisha. The
petitioner and another, one Rohit in the same crime were taken into
custody on 07-02-2017, 2 days after the registration of the crime.
On 19-02-2017, the police is said to have received information at
around 1.00 a.m. that about 8 to 10 persons have gathered and
were conspiring to commit robbery of money and jewels. At about
1.40 a.m. the police confronted those accused, out of whom, 4 ran
away and 4 get apprehended. Now comes the registration of the
crime in Crime No.58 of 2017 - the subject crime, for offences
punishable under Sections 399 and 402 of the IPC read with
Sections 27 and 30 of the Indian Arms Act, against 8 persons on a
complaint so registered by the Police Inspector, Yelahanka Police
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Station. On the basis of the registration of the crime, voluntary
statements of accused Nos.1 and 2 were recorded and those
persons mention the name of the petitioner to be a part of the
group on the night of 19-02-2017. On 07-03-2017, the police
invoke the provisions of the KCOCA and submit a requisition before
the learned Magistrate for inclusion of offence under Section 3 of
the KCOCA in the impugned crime No. 58 of 2017. The concerned
Court permits its inclusion. Investigation then leads to filing of the
charge sheet on 11-05-2017 and an additional charge sheet on 07-
08-2017 for offences punishable under Sections 3(1)(ii), (2) and (4)
of the KCOCA and Sections 109 and 120B of the IPC as against the
petitioner.
2.2. The accused No.11 in Crime No.58 of 2017 call the
inclusion of KCOCA in question before this Court in W.P.No.16771 of
2017. The coordinate bench of this Court, in terms of its order
dated 08-06-2023, allowed the petition and quashed the inclusion
of KCOCA, holding that there were no ingredients to include the
offence under KCOCA. Further, against the same accused, accused
No.11, this Court in Crl.P.No.9819 of 2023 has quashed the
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proceedings. The petitioner, on the very same grounds, as that of
accused No.11 one K.S.Rohit, is before this Court, seeking
quashment of the entire proceedings in Spl. Case 414 of 2017,
which arises out of Crime No.58 of 2017.
3. Heard Sri Mayur D Bhanu, learned counsel appearing for
petitioner and Sri B N Jagadeesha, learned Additional State Public
Prosecutor appearing for respondents.
4. The learned counsel appearing for the petitioner would
submit that the requisition of the Assistant Commissioner of Police
seeking approval of inclusion of KCOCA is on the face of it illegal. In
the absence of any report being made, to indicate primary
ingredients of KCOCA, the Authorities could not have invoked the
same. On these primary submissions, several submissions are built
up by the learned counsel for the petitioner, but what is underlying
is that, inclusion of KCOCA qua the other accused is quashed by the
coordinate bench and this Court, in Crl.P.No.9819 of 2023 has
quashed the proceedings in the subject crime qua accused No.11.
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5. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
6. The issue projected need not detain this Court for long or
delve deep into the matter, except for noting the findings rendered
by the coordinate bench while considering the approval granted
under KCOCA and the quashment of the crime against accused
No.11. One K.S.Rohit, accused No.11 had challenged the inclusion
of the provisions of KCOCA in W.P.No.16771 of 2017. The
coordinate bench, by its order dated 08-06-2023 allows the petition
and sets aside the inclusion by the following order:
".... .... ....
11. The Act of 2000 was designed to control,
prevent and cope with criminal activity by organized
crime syndicate or a gang. The consequences of
invocation of the provisions of the Act of 2000 are drastic
due to the non-application of many of the provisions of
the Criminal Procedure Code, 1973 such as relating to
anticipatory bail, the stringent procedure for regular bail
etc., the reverse burden imposed on the accused under
Section 23 of the Act of 2000, the punishment prescribed
etc. It is clear that the heart of the legislation is to deter
Organized Crime Syndicates to indulge in unlawful
activities. It is for this reason that the request of an
Investigating Officer to invoke the provisions of the Act
of 2000 goes through many sieves at the highest level.
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The Hon'ble Supreme Court of India in the case of Kavita
Lankesh v. State of Karnataka and others [2021 SCC Online
SC 956] has held:
"27. At the stage of granting prior approval under
Section 24(1)(a) of the 2000 Act, therefore, the
competent authority is not required to wade through the
material placed by the Investigating Agency before him
along with the proposal for grant of prior approval to
ascertain the specific role of each accused. The
competent authority has to focus essentially on the
factum whether the information/material reveals the
commission of a crime which is an organized crime
committed by the organized crime syndicate. In that,
the prior approval is qua offence and not the offender as
such. As long as the incidents referred to in earlier
crimes are committed by a group of persons and one
common individual was involved in all the incidents, the
offence under the 2000 Act can be invoked. This Court
in Prasad Shrikant Purohit [Prasad Shrikant Purohit v.
State of Maharashtra, (2015) 7 SCC 440] in paragraphs
61 and 98 expounded that at the stage of taking
cognizance, the competent Court takes cognizance of
the offence and not the offender. This analogy applies
even at the stage of grant of prior approval for
invocation of provisions of the 2000 Act. The prior
sanction under Section 24(2), however, may require
enquiry into the specific role of the offender in the
commission of organized crime, namely, he himself
singly or jointly or as a member of the organised crime
syndicate indulged in commission of the stated offences
so as to attract the punishment provided under Section
3(1) of the 2000 Act. However, if the role of the offender
is merely that of a facilitator or of an abettor as referred
to in Sections 3(2), 3(3), 3(4) or 3(5), the requirement
of named person being involved in more than two
charge-sheets registered against him in the past is not
relevant. Regardless of that, he can be proceeded under
the 2000 Act, if the material collected by the
investigating agency reveals that he had nexus with the
accused who is a member of the organised crime
syndicate or such nexus is related to the offence in the
nature of organised crime. Thus, he need not be a
person who had direct role in the commission of an
organised crime as such."
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12. The Hon'ble Apex Court in Zakir Abdul Mirajkar
(supra) held:
"18. The above definition of organized
crime, as its elements indicate, incorporates two
other concepts namely, a continuing unlawful
activity and an organized crime syndicate. Hence,
it becomes necessary to understand the ambit of
both those expressions. The ingredients of a
continuing unlawful activity are:
a. The activity must be prohibited by law for
the time being in force;
b. The activity must be a cognizable act
punishable with imprisonment of three years or
more;
c. The activity may be undertaken either
singly or jointly as a member of an organized
crime syndicate or on behalf of such a syndicate;
d. More than one charge-sheet should have
been filed in respect of the activity before a
competent court within the preceeding period of
ten years; and
e. The court should have taken cognizance
of the offence.
19. The elements of the definition of "organized
crime syndicate" are :
a. A group of two or more persons;
b. Who act singly or collectively, as a
syndicate or gang; and
c. Indulge in activities of organized crime.
20. Both Section 2(1)(d) while defining
"continuing unlawful activity" and Section 2(1)(e) while
defining "organized crime" contain the expression "as a
member of an organized crime syndicate or on behalf of
such syndicate". While defining an organized crime
syndicate, Section 2(1)(f) refers to "activities of
organized crime".
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21. Section 3 provides for the punishment for
organized crime. Sub Section (1) of Section 3 covers
"whoever commits an offence of organized crime". Sub
Section (2) covers whoever conspires or attempts to
commit or advocates, abets or knowingly facilitates the
commission of an organized crime or any act
preparatory to organized crime. Sub Section (3) covers
whoever harbours or conceals or attempts to harbour or
conceal any member of an organized crime syndicate.
Sub Section (4) covers any person who is a member of
an organized crime syndicate. Sub Section (5) covers
whoever holds any property derived or obtained from
the commission of an organized crime or which has been
acquired through the funds of an organized crime
syndicate. Section 4 punishes the possession of
unaccountable wealth on behalf of a member of an
organized crime syndicate."
13. Thus, to understand whether the petitioner was a
member of an organized crime syndicate, it is necessary to
reflect upon a few provisions of the Act of 2000.
14. The word "Abet" is defined under Section 2(a) of
the Act of 2000 as follows:
(a) "Abet", with its grammatical variations and
cognate expressions, includes, -
(i) communication or association with any person
with the knowledge or having reason to believe
that such person is engaged in assisting in any
manner, an organized crime syndicate;
(ii) passing on or publication of, without any lawful
authority, any information likely to assist an
organized crime syndicate and the passing on or
publication of or distribution of any document or
matter obtained from an organized crime
syndicate; and
(iii) rendering of any assistance, whether financial or
otherwise, to an organized crime syndicate;"
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15. Section 2(d) of the Act of 2000 defines the words
"Continuing unlawful activity", as follows:
(d) "Continuing unlawful activity" means an
activity prohibited by law for the time being in force, which is a
cognizable offence punishable with imprisonment of three
years or more, undertaken either singly or jointly, as a
member of an organized crime syndicate or on behalf of
such syndicate in respect of which more than one charge-
sheet have been filed before a competent Court within the
preceding period of ten years and that Court has taken
cognizance of such offence;"
16. Section 2(e) of the Act of 2000 defines an
"Organized crime" as follows:
(e) "Organized crime" means any continuing unlawful activity
by an individual, singly or jointly, either as a member of an
organized crime syndicate or on behalf of such syndicate, by
use of violence or threat of violence or intimidation or
coercion, or other unlawful means, with the objective of
gaining pecuniary benefits, or gaining undue economic or other
advantage for himself or any other person or promoting
insurgency.
17. Section 2(f) of the Act of 2000 defines an
"Organized crime syndicate" as follows:
(f) "Organized crime syndicate", means a group
of two or more persons who acting either singly or
collectively, as a syndicate or gang, indulge in
activities of organized crime.
18. Therefore for invocation of Section 3 of the
Act of 2000, it must be specifically established that a
person is a part of an organized crime syndicate which
indulges / indulged in organized crime as defined under
the Act of 2000. If the impugned order is perused, it is
stated that the petitioner was accused in Crime
No.42/2017 where a charge sheet was filed in C.C.
No.17840/2017 for the offences punishable under
Sections 341, 504, 506, 120B, 212 read with Section 34
of IPC and Sections 27 and 30 of the Arms Act. The
accused in this case were (1). Mr. Satish @ Nagashettihalli
Satish (2). Mr. Rohit @ Onte (petitioner) (3). Mr Sunil
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Kumar @ Silent Sunil (4). Mr. Sridhar Murthy @ Agni Shridhar
(5). Mr. Syed Aman @ Ahamadulla Shariff (6). Mr. N.
Narasimhamurthy @ Kumar (7). Mr. M. Sathish, (8). Mr. M.C.
Umesh (9). Mr. R. Vishnuvardhan @ Vishnu. They had filed
Crl. P. Nos.9648/2017, 9767/2017, 9768/2017, 9762/2017,
3024/2017 and 9833/2017 before this Court challenging the
charge sheet in Crime No.42/2017 and the order taking
cognizance. In the meanwhile, Crime No.58/2017 was
registered against (1).Mr. Mohan Kumar, (2). Mr. Nagaraju (3).
Mr. Raju (4). Mr. Basavaraju (5). Mr. Abhi Gowda (6). Mr.
Chethu (7). Mr. Prakash (8). Mr. Mahesh. It is stated that
during the investigation of Crime No.58/2017, it was found that
a person named Mr. Pramod @ Cariappa K.M. was supplying
country made pistols to Mr. Nagaraj and Mr. Mohan Kumar to
operate as a gang. It is further stated that during the
investigation of Crime No.42/2017, Mr. Satish @
Nagashettihalli Satish on the instruction of Mr. Sunil
Kumar used Mr. Rohit (petitioner) for political gain. It is
stated that in the investigation, it was revealed that Mr.
Rohit (petitioner) was acting at the behest of Mr.Sunil in
threatening a businessman named Tata Ramesh. It is
also claimed that during investigation, a search warrant
was procured to search the house of Mr. Agni Sridhar and
search was carried out on 07.02.2017 and four pistols,
four daggers and other incriminating material were
seized and a case in Crime No.51/2017 was registered
against him. It is stated that the petitioner had procured
a pistol from Mr. Syed Amman and Mr. Agni Sridhar. It
was further stated that during preliminary investigation it
was found that Mr. Sunil Kumar and Mr. Rohit (petitioner)
along with other criminals were masquerading as
activists of 'Karunada Sene', a frontal organization
headed by Mr. Agni Sridhar and that his gang members
were involved in criminal activities and used criminal
force in settling civil disputes. It is further stated that
during investigation, Mr. Mohan @ double Meter Mohan
was in Parappana Agrahara Central Prison during 2003 to
2006 and came in contact with Mr. Sunil Kumar and Mr.
Rohit (petitioner) and became their active follower and
formed a crime syndicate. It is alleged that Mr. Mohan
Kumar on behalf of the Syndicate procured illegal
weapons which were seized in Crime No.58/2017. It is
also alleged that the voluntary statement of Mr. Mohan
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Kumar and Mr. Nagaraj revealed that petitioner and Mr.
Sunil Kumar hatched a criminal conspiracy to eliminate
one of their enemies named Mr. Mani. Therefore, the
respondent Nos.3 and 4 have alleged that Mr. Mohan, Mr.
Sunil, Mr. Agni Sridhar, petitioner are all members of an
organized crime syndicate.
19. The petitioner has placed on record the list of
other cases filed against Mr. Mohan, Mr. Nagaraj, Mr.
Sunil Kumar and the petitioner which are as below.
ACCUSED NO.1 - MR.MOHAN KUMAR
Sl. Docu- Police Cr.No's SC NO's P/U/S Status Date
No. ments Station
1 1 Wilson 100/07 756/07 302 r/w 34 of IPC Acquitted 30.06.2011
Garden
2 2 Kengeri 256/13 1474/13 143,147,148,302 Acquitted 20.10.2014
r/w 149 of IPC
3 3 Ramanagar 34/15 01/16 302 r/w 34 of IPC Acquitted 09.09.2019
Town
ACCUSED NO.2 - MR.NAGARAJ
Sl. Docu- Police Station Cr.No's SC P/U/S Status Date
No ment
1 4 Kalasipalyam 96/09 82/10 302 of IPC Acquitted 12.07.2012
2 5 Magadi Road 57/12 627/12 392,395 of IPC Acquitted 29.06.2015
3 6 Wilson Garden 161/12 CC12820/1 323,324, r/w Acquitted 05.11.2013
3 34 of IPC
4 7 Wilson Garden 37/14 534/15 399,402 of IPC Acquitted 28.11.2015
5 8 Cotton pet 201/12 1505/12 302 r/w 149 of Acquitted 29.11.2014
(204/12) IPC
6 9 Wilson Garden 203/14 1106/14 141,143,147,14 Acquitted 11.10.2017
8,302 r/w 149
of IPC
7 10 Madiwala 1418/14 SPL 141,143,147,14 Pending
C.196/15 8,448,427,120B
,107,307,302
r/w 149 of IPC
and 26 & 27 of
Arms Act & 3
KCOCA of Act
2000.
8 11 White Field 70/16 147/16 302,201 r/w 34 Pending
of IPC
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ACCUSED NO.11-MR. K S ROHIT KUMAR- Petitioner
Sl. Docu- Police Station Cr.No SC P/U/S Status Date
No. Ments
1. 12 Electronic City 70/07 363/ 399,402 Acquitted 19.02.2008
2007
2. 13 Peenya 748/09 276/ 399,402 Acquitted 22.12.2011
2011
3. 14 Yelahanka 42/17 CRL. 341,504, Quashed 13.06.2018
P.No. 506 & 27,
9648/ 30 of Arms
2017 Act
ACCUSED NO.12 - MR. SUNIL KUMAR
Sl. Docu- Police Cr.No SC P/U/S Status Date
No. ment Station
1. 15 Shankara- 132/2001 121/02 398 Acquitted 12.07.2012
puram
2. 16 Ramanagar 119/08 125/10 399, 402 Acquitted 9.02.2012
3. 17 Subramanya 32/10 595/11 307,353,3 Acquitted 12.07.2012
nagar 99,402 of
IPC &
25(3) of
Arms Act
4. 18 Yelahanka 186/09 740/10 143,147,1 Acquitted 11.01.2013
new Town 48,307,30
2,109,201
r/w 149 of
IPC
5 19 Yelahanka 42/17 CRL P 341,504,5 Quashed 13.06.2018
No. 06 of IPC
9648/17 & 27,30 of
Arms Act
6. 20 Hennur 410/09 695/10 143,147,1 Acquitted 12.07.2012
48,307,30
2, r/w 149
of IPC
7 21 Electronic 357/12 670/13 143,147,4 Acquitted 21.07.2018
City 8,302, r/w
149 of IPC
20. No doubt if the respondents are able to
demonstrate that there was more than one charge sheet
against any member of any organized crime syndicate or on
behalf of any such crime syndicate, then the offence under
Section 3 of the Act of 2000 is attracted. However, a reading of
the provisions of the Act of 2000 makes it clear that any
person, if he is a member of an organized crime syndicate can
be prosecuted for an offence under Section 3, even if he has
not committed any offence but his syndicates have committed
an offence and more than one charge sheet is filed and
cognizance is taken. Therefore a person can be accused of an
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offence under the Act of 2000 even if he had no direct role in
the commission of an organized crime as such. If according to
the respondent No.4, the petitioner, Mr.Sunil Kumar, Mr. Mohan
Kumar and Mr.Nagaraj formed an organized syndicate crime,
the respondent No.4 is bound to place on record all material to
establish that they were an organized crime syndicate. If the
list of cases filed against the above persons is perused, a case under
Section 3 of Act of 2000 is already invoked against Mr.Nagaraj by
Madiwala Police Station, meaning thereby that he is a member of a
different syndicate. The cases filed against Mr.Mohan Kumar have all
ended in his acquittal and of the three cases filed against the
petitioner, he is acquitted in two and later the third case, namely,
Crime No.42/2017 is quashed by this Court in Crl.P. No.9648/2017
and connected cases vide order dated 13.06.2018 after the impugned
order. Similarly, out of seven cases filed against Mr.Sunil
Kumar, he was acquitted in six cases and the Crime
No.42/2017 was quashed by this Court after the impugned
order. In so far as the cases filed against Mr. Sridharmurthy @ Agni
Sridhar is concerned, the petitioner was not a co-accused in those
cases.
21. In the present case, except the self serving
statement of the respondent Nos.3 and 4 that the petitioner,
Mr. Mohan Kumar, Mr. Nagaraj, Mr. Sunil Kumar and Mr. Agni
Sridhar all formed an organized crime syndicate, there is no
specific finding as to how the petitioner was part of such
organized crime syndicate and what was the basis for treating
him as a member of such crime syndicate. It is a matter of fact
that Crime No.42/2017 in which charge sheet was filed in C.C.
No.17840/2017 was quashed by this Court in Crl. P
No.9648/2017 and connected criminal petitions vide order
dated 13.06.2018. Therefore, by the time a request was made
for grant of approval under Section 24(1)(a) of the Act of 2000,
and 10 years preceding thereto, there were no offences
registered against Mr. Sunil Kumar or the petitioner or Mr.
Mohan Kumar or Mr. Nagaraj as all the cases in which they
were arrayed as accused, they were acquitted.
22. In that view of the matter, unless there is a
specific material as to how the petitioner was a member of an
organized crime syndicate and the basis of such a belief, the
grant of prior approval under Section 24(1)(a) of the Act of
2000 is faulty and deserves to be interfered with. However,
the respondent Nos.3 and 4 are entitled to furnish a fresh
request for grant of approval under Section 24(1)(a) of the Act
of 2000 by setting out reasons as to how the petitioner is
treated as a member of an organized crime syndicate and as to
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the basis to proceed against him for an offence punishable
under Section 3 of the Act of 2000.
In view of the above, the petition is allowed in part and the
Order dated 07.03.2017 passed by respondent No.1 granting prior
approval under Section 24(1)(a) of the Karnataka Control of Organized
Crime Act, 2000 is set aside. The Order dated 09.03.2017 passed by
the Trial Court in Crime No.58/2017 permitting the insertion of Section
3 of the Act of 2000 against the petitioner is set aside. Consequently,
the charge sheet filed by respondent Nos.3 and 4 against the
petitioner herein, in Spl.C. No.414/2017 pending trial before the
Principal City Civil and Sessions Judge, Bengaluru, for the offence
punishable under Section 3 of the Act of 2000 is set aside for the
present. It is open for respondent Nos.3 and 4 to make a fresh
request to respondent No.1 setting out the reasons and the basis to
treat the petitioner as a member of an organized crime syndicate. The
respondent No.1 may thereafter apply his judicious mind and dispose
off the same in accordance with law within a period of 30 days from
the date of receipt of a certified copy of this Order."
(Emphasis supplied)
7. The petitioner, as observed, is accused No.12. The
allegation against the petitioner is the same, as that of accused
No.11 one K.S.Rohit who was the petitioner in the aforesaid
petition. Therefore, the findings rendered in the case of K.S.Rohit
supra, would become applicable on all its fours to the case of the
petitioner as well. Thus, the inclusion of the provisions of KCOCA in
the case of the petitioner is rendered unsustainable.
8. This Court, in Crl.P.9819 of 2023, has quashed the entire
proceedings qua accused No.11/K.S.Rohit. As observed
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hereinabove, the offences against K.S.Rohit and that of the
petitioner are similar. The allegation is, that they were involved in
preparation or commission of dacoity, as obtaining under Sections
399 and 402 of the IPC. Both of them, were in police custody, at
the relevant point in time. Therefore, those offences could not have
been laid against either K.S.Rohit or the petitioner herein. In those
circumstances, this Court quashed the proceedings against
K.S.Rohit, holding that it was an admitted fact that K.S.Rohit was in
police custody and has been dragged into the crime only on the
voluntary statement of the co-accused. This Court, by order dated
21-06-2024, holds as follows:
".... .... ....
6. The afore-narrated facts are not in dispute. Two crimes
emerge where the petitioner becomes an accused. The first one
is registered on 08.02.2017 in Crime No.42/2017 for offences
punishable under Sections 341, 504, 506 read with Section
34 of the IPC. He is remanded to Police custody for a period of
14 days, which would come to an end at 5.00 p.m. on
21.02.2017. The second one comes as a suo motu crime in
Crime No.58/2017 against the petitioner for the aforesaid
offences. The offences punishable are under Sections 399 and
402 of the IPC read with Sections 27 and 30 of the Arms Act.
Additionally, a communication was sent to the Competent
Authority seeking permission to invoke Section 3 of the Act. The
permission was granted. After grant of permission, the offences
under the Act were also invoked against the petitioner and
others. That comes to be challenged before this Court in Writ
Petition No.16771/2017. This Court grants an interim order of
17
stay of invocation of the provisions of the Act. Pending writ
petition, charge sheet is filed against the petitioner and others
in the said case for the offences under Sections 109, 120B, 399,
402 of the IPC and under Sections 25, 27 and 30 of the Arms
Act. Cognizance is taken by the concerned Court against the
petitioner, accused No.11. Accused Nos. 9 and 10 were dropped
from the charge sheet as sufficient material to charge them was
not available. A co-ordinate Bench of this Court in terms of its
order dated 08.06.2023 allows Writ Petition No.16771/2017
partly setting aside the approval granted by the competent
authority to invoke Section 3 of the Act. The co-ordinate Bench
qua the petitioner observes as follows:
"ACCUSED NO.11 - MR. K S ROHIT KUMAR -Petitioner
Sl. Docu- Police Cr.No. SC P/U/S Status Date
No. Ments Station
1. 12 Electronic 70/07 363/ 399, 402 Acquitted 19.02.2008
City 2007
2 13 Peenya 748/09 276/ 399, 402 Acquitted 22.12.2011
2011
3. 14 Yelahanka 42/17 CRL. 341, Quashed 13.06.2018
P.NO. 504,
9648/ 506 &
2017 27,
30 of
Arms Act
22. In that view of the matter, unless there is a specific
material as to how the petitioner was a member of an organized
crime syndicate and the basis of such a belief, the grant of prior
approval under Section 24(1)(a) of the Act of 2000 is faulty and
deserves to be interfered with. However, the respondent Nos.3
and 4 are entitled to furnish a fresh request for grant of approval
under Section 24(1)(a) of the Act of 2000 by setting out reasons
as to how the petitioner is treated as a member of an organized
crime syndicate and as to the basis to proceed against him for an
offence punishable under Section 3 of the Act of 2000.
In view of the above, the petition is allowed in part and the
Order dated 07.03.2017 passed by respondent No.1 granting prior
approval under Section 24(1)(a) of the Karnataka Control of
Organized Crime Act, 2000 is set aside. The Order dated
09.03.2017 passed by the Trial Court in Crime No.58/2017
18
permitting the insertion of Section 3 of the Act of 2000 against the
petitioner is set aside. Consequently, the charge sheet filed by
respondent Nos.3 and 4 against the petitioner herein, in
Spl.C.No.414/2017 pending trial before the Principal City Civil and
Sessions Judge, Bengaluru, for the offence punishable under
Section 3 of the Act of 2000 is set aside for the present. It is open
for respondent Nos.3 and 4 to make a fresh request to respondent
No.1 setting out the reasons and the basis to treat the petitioner
as a member of an organized crime syndicate. The respondent
No.1 may thereafter apply his judicious mind and dispose off the
same in accordance with law within a period of 30 days from the
date of receipt of a certified copy of this Order."
Therefore, what are the offences that remain are under
Sections 399, 402, 109 and 120B of the IPC. The crux of the
issue lies in Sections 399 and 402 of the IPC. They read as
follows:
"399. Making preparation to commit dacoity.--
Whoever makes any preparation for committing dacoity,
shall be punished with rigorous imprisonment for a term
which may extend to ten years, and shall also be liable to
fine."
"402. Assembling for purpose of committing
dacoity.--Whoever, at any time after the passing of this
Act, shall be one of five or more persons assembled for the
purpose of committing dacoity, shall be punished with
rigorous imprisonment for a term which may extend to
seven years, and shall also be liable to fine."
Section 399 of IPC deals with preparation to commit
dacoity and Section 402 of IPC deals with assembling for
the purpose of committing dacoity. Both these provisions
would require presence of an accused, as they deal with
assembly and preparation. The suo motu crime is registered
on 20.02.2017 at 3.00 p.m. in Crime No.58/2017. The gist of
the crime is as follows:
"ದೂ ನ ಾ ಾಂಶ ೇ ೆಂದ ೆ ಐ ಆದ ಾನು ಾಂಕ 19/02/2017 ರಂದು ಾ ಸು ಾರು
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19
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ಬ! ಸೂ*8 ಮತು* Nಾಕು ಇಟುL"ೊಂಡು, M§âjUÉƧâgÀÄ F ¢£À F gÀ¸ÉÛAiÀÄ°è §gÀĪÀ
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ಡ"ಾಯ ಾ<ೋಣ ಎಂದು ªÀiÁvÀ£ÁrPÉƼÀÄîwÛzÁÝgÉ. JAzÀÄ w½¹zÀgÀÄ D¸Á«ÄUÀ¼ÀÄ qÀPÁAiÀÄw
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20
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ಪ3%"ೊಂಡು =ಾಗು ದ¸ÀÛY ಾ3ದ 4 ಜನ ಆ ೋ ಗಳ ಸ]ೕತ ಾಂಕ : 20/02/2017
gÀAzÀÄ ¨É½UÉÎ 03-00 UÀAmÉUÉ »AwgÀÄV EªÀgÀÄUÀ¼À «gÀÄzÀÞ PÀ®A 399, 402, L¦¹ ªÀÄvÀÄÛ 27,
30, DªÀÄìgï DPïÖ jÃvÁå PÉøÀÄ zÁR°¹gÀÄvÉÛÃ£É EvÁå¢."
Where was the petitioner at juncture is necessary to be
noticed. He was in the Police custody in the very same
Police Station pursuant to an order of the concerned
Court in Crime No.42/2017. This is an undisputed fact as
body warrant is granted by the concerned Court to
produce the petitioner who was in custody in the other
crime. Therefore, it cannot be said that the petitioner
was either a part of preparation or assembly for the
purpose of commissioning of dacoity. How did not
petitioner come into the picture is not on any
investigation but on a suo motu statement of the co-
accused which is not in dispute as could be gathered from
the charge sheet so filed by the Police, which reads as follows:
"ಅಂಕಣ-3 ರ ನಮೂ %ರುವ ಎ-1, ಎ2, ಮತು* ಎ-11 =ಾಗೂ ಎ12 ರವರು ವ?ವ%zತ ಾY
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21
ಮತು* ಎ12 ರವ ೊಂ )ೆ Dರಂತರ ಸಂಪಕsದ ದುX"ೊಂಡು ಾಂಕ 20.02.2017"ೆA ZಂTೆ
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ಬ)ೆ, ಸಲ=ೆ Dೕಡುವgದರ _ೊOೆ)ೆ CªÀgÉÆÃA¢UÉ ಒಳಸಂಚು ನ<ೆ% ತಮ. ಎ8
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ಎ-8 ಮತು* J-13 jAzÀ J-15 ರವ ೊಂ )ೆ ಾಂಕ 19/20.02.2017 gÀAzÀÄ ಮಧ? ಾ
ಸು ಾರು 1.40 ಗಂ ೆಯ 2 PÁgÀÄ 1 eೕಪg, ಶ ಾ€ಸ€, ಗುಂಡುಗಳS ಮತು* EvÀgÉ
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ವ?W*ಗಳನುC ಾಡುವ ಉTೆXೕಶ ಂದ qÀgÉÆÃqÉAiÀÄ ¹zÀÝvÉAiÀÄ°ègÀĪÁUÀ ¸ÁQë-1 gÀªÀjUÉ zÉÆgÉvÀ
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eೕ ೊಂ )ೆ ¥À ಾ BಾYದುX, ಘಟ ಾ ಸzಳದ %WAದ ಎ1 ಂದ ಎ4 ರವರನುC ಬಂ %
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ªÀÄvÀÄÛ J13 jAzÀ J15 gÀªÀgÀ£ÀÄß ¢£ÁAPÀ 26.02.2017 gÀAzÀÄ §A¢¹ CªÀgÀÄ PÀÈvÀåPÉÌ §¼À¹zÀ
¨É¯ÉÆÃgÀ fÃ¥À£ÀÄß ¸ÀºÀ ªÀ±À¥Àr¹ ªÀiÁ®Ä ¥ÀnÖ ¸ÀASÉå 16/2017 gÀ°è C¼ÀªÀr¹PÉÆArgÀĪÀÅzÀÄ.
J-1 ªÀÄvÀÄÛ J-2 DgÉÆævÀgÀÄ PÀæªÀĪÁV gÁªÀÄ£ÀUÀgÀ ¥Éưøï oÁuÉ ªÉÆ.¸ÀA.34/2015
PÀ®A 302 gÉ/« 149 L¦¹ ªÀÄvÀÄÛ ªÉÊmï¦üïïØ ¥Éưøï oÁuÉ ªÉÆ.¸ÀA.70/2016 gÀ°è 120©,
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149 ಐ¦¹ ಪ ಕರಣದ ಅTೇ _ೈ ನ ದX ಎ-16 ಆ ೋ ಯ ಪ ಚಯ ಾY ಅವನ ಬ! ಎ-1
ಮತು* ಎ-2 ರವರು ತಮ. ಅಪ ಾಧ ಕೃತ?ಗಳS ಮತು* ತಮYರುವ >ಾ ಣ uೕ ಯ §UÉÎ
ºÉýPÉÆAqÁUÀ, ¸ÀzÀj J16 DgÉÆæAiÀÄÄ CªÀgÉÆA¢UÉ M¼À¸ÀAZÀÄ £Àqɹ CªÀgÀ C¥ÀgÁzsÀ PÀÈvÀåUÀ½UÉ
¸ÀºÀPÀj¸ÀĪÀ GzÉÝñÀ¢AzÀ DvÀ£À£ÀÄß £ÉÆÃqÀ®Ä §AUÀ¼ÀÆgÀÄ PÉÃAzÀæ PÁgÁUÀȺÀPÉÌ ¨sÉÃn PÉÆqÀÄwÛzÀÝ J-
18 ಆ ೋ ಯ ಮೂಲಕ ಎ-20 ೋ )ೆ ಾಲು ಪKLಸಂ„ೆ? 22/2017ರ
ಆಳವ3%"ೊಂ3ರುವ ಶ ಾ€ಸ€ ಮತು* ಗುಂಡುಗಳನುC ಸರಬ ಾಜು ಾ3%ರುವgದು."
The petitioner is dragged into the web of crime
admittedly on account of voluntary/confession statement
22
of the co-accused. This is what is held by the Apex Court
to be impermissible in law.
7. The Apex Court in the case of DIPAKBHAI
JAGDISHCHANDRA PATEL v. STATE OF GUJARAT reported
in ((2019) 16 SCC 547), has held as follows:
"46. In CBI v. V.C. Shukla [CBI v. V.C. Shukla,
(1998) 3 SCC 410: 1998 SCC (Cri) 761: AIR 1998 SC
1406], a Bench of three learned Judges, after approving
Pakala Narayana Swami [Pakala Narayana Swami v. King
Emperor, 1939 SCC OnLine PC 1 (1938-39) 66 IA 66: AIR
1939 PC 47], had occasion to consider the distinction
between confession and admission. This Court went on to
hold as follows: (V.C. Shukla case [CBI v. V.C. Shukla,
(1998) 3 SCC 410: 1998 SCC (Cri) 761: AIR 1998 SC
1406], SCC pp. 437-38, para 45)
"45. It is thus seen that only voluntary
and direct acknowledgement of guilt is a
confession but when a confession falls short
of actual admission of guilt it may
nevertheless be used as evidence against the
person who made it or his authorised agent
as an "admission" under Section 21. The law
in this regard has been clearly -- and in our
considered view correctly -- explained
in Monir's Law of Evidence (New Edn. at pp.
205 and 206), on which Mr Jethmalani relied
to bring home his contention that even if the
entries are treated as "admission" of the
Jains still they cannot be used against Shri
Advani. The relevant passage reads as
under:
'The distinction between admissions and
confessions is of considerable importance for two
reasons. Firstly, a statement made by an accused
person, if it is an admission, is admissible in
evidence under Section 21 of the Evidence Act,
unless the statement amounts to a confession
and was made to a person in authority in
consequence of some improper inducement,
threat or promise, or was made to a police
23
officer, or was made at a time when the accused
was in custody of a police officer. If a statement
was made by the accused in the
circumstances just mentioned its
admissibility will depend upon the
determination of the question whether it
does not amount to a confession. If it
amounts to a confession, it will be
inadmissible, but if it does not amount to a
confession, it will be admissible under Section 21
of the Act as an admission, provided that it
suggests an inference as to a fact which is in
issue in, or relevant to, the case and was not
made to a police officer in the course of an
investigation under Chapter XIV of the Code of
Criminal Procedure. Secondly, a statement
made by an accused person is admissible
against others who are being jointly tried
with him only if the statement amounts to a
confession. Where the statement falls short
of a confession, it is admissible only against
its maker as an admission and not against
those who are being jointly tried with him.
Therefore, from the point of view of Section
30 of the Evidence Act also the distinction
between an admission and a confession is of
fundamental importance'."
(emphasis in original and supplied)
47. Section 21 of the Evidence Act provides as follows:
"21. Proof of admissions against persons
making them, and by or on their behalf.--Admissions
are relevant and may be proved as against the person who
makes them, or his representative in interest; but they
cannot be proved by or on behalf of the person who makes
them or by his representative in interest, except in the
following cases--
(1) An admission may be proved by or on behalf of
the person making it, when it is of such a nature that, if the
person making it were dead, it would be relevant as
between third persons under Section 32.
24
(2) An admission may be proved by or on behalf of
the person making it, when it consists of a statement of the
existence of any state of mind or body, relevant or in issue,
made at or about the time when such state of mind or body
existed, and is accompanied by conduct rendering its
falsehood improbable.
(3) An admission may be proved by or on behalf of
the person making it, if it is relevant otherwise than as an
admission."
48. Thus, what amounts to an admission can be used
against the maker of the admission or his representative in
interest. As to what constitutes an admission is to be found in
Section 17 of the Evidence Act, which defines "admission" as
follows:
"17. Admission defined.--An admission is a
statement, oral or documentary or contained in
electronic form, which suggests any inference as to any
fact in issue or relevant fact, and which is made by any
of the persons, and under the circumstances, hereinafter
mentioned."
49. In Bharat Singh v. Bhagirathi [Bharat Singh v.
Bhagirathi, AIR 1966 SC 405], the true nature of the
evidentiary value of admission, and whether without
confronting the maker of the admission, it could be used, has
been referred to and this is what this Court had to say: (AIR
p. 410, para 19)
"19. Admissions have to be clear if they are to be
used against the person making them. Admissions are
substantive evidence by themselves, in view of Sections 17
and 21 of the Indian Evidence Act, though they are not
conclusive proof of the matters admitted. We are of opinion
that the admissions duly proved are admissible evidence
irrespective of whether the party making them appeared in
the witness box or not and whether that party when
appearing as witness was confronted with those statements
in case it made a statement contrary to those admissions.
The purpose of contradicting the witness under Section 145
of the Evidence Act is very much different from the purpose
of proving the admission. Admission is substantive evidence
25
of the fact admitted while a previous statement used to
contradict a witness does not become substantive evidence
and merely serves the purpose of throwing doubt on the
veracity of the witness. What weight is to be attached to an
admission made by a party is a matter different from its use
as admissible evidence."
(emphasis supplied)
50. From the statement of the law contained in V.C.
Shukla [CBI v. V.C. Shukla, (1998) 3 SCC 410: 1998 SCC (Cri)
761: AIR 1998 SC 1406] , it becomes clear as to what constitutes
confession and how if it does not constitute confession, it may still
be an admission. Being an admission, it may be admissible under
the Evidence Act provided that it meets the requirements of
admission as defined in Section 17 of the Evidence Act. However,
even if it is an admission, if it is made in the course of
investigation under the CrPC to a police officer, then, it will
not be admissible under Section 162 CrPC as it clearly
prohibits the use of statement made to a police officer
under Section 161 CrPC except for the purpose which is
mentioned therein. Statement given under Section 161,
even if relevant, as it contains an admission, would not be
admissible, though an admission falling short of a
confession which may be made otherwise, may become
substantive evidence."
On the same lines the Apex Court earlier in SURINDER KUMAR
KHANNA v. INTELLIGENCE OFFICER, DIRECTORATE OF
REVENUE INTELLIGENCE reported in ((2018) 8 SCC 271)
has held as follows:
"10. In Kashmira Singh v. State of M.P. [Kashmira
Singh v. State of M.P., (1952) 1 SCC 275: 1952 SCR 526:
AIR 1952 SC 159: 1952 Cri LJ 839], this Court relied upon
the decision of the Privy Council in Bhuboni Sahu v. R.
[Bhuboni Sahu v. R., 1949 SCC OnLine PC 12: (1948-49) 76
IA 147 at p. 155.] and laid down as under: (AIR p. 160,
paras 8-10)
"8. Gurubachan's confession has
played an important part in implicating the
appellant, and the question at once arises,
how far and in what way the confession of
an accused person can be used against a co-
accused? It is evident that it is not evidence
26
in the ordinary sense of the term because,
as the Privy Council say in Bhuboni
Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC
OnLine PC 12 : (1948-49) 76 IA 147 at p.
155.] : (SCC OnLine PC)
'...It does not indeed come within the
definition of "evidence" contained in Section
3 of the Evidence Act. It is not required to
be given on oath, nor in the presence of the
accused, and it cannot be tested by cross-
examination.'
Their Lordships also point out that it
is
'obviously evidence of a very weak
type. ... It is a much weaker type of
evidence than the evidence of an approver,
which is not subject to any of those
infirmities'.
They stated in addition that such a
confession cannot be made the foundation
of a conviction and can only be used in
"support of other evidence". In view of
these remarks, it would be pointless to
cover the same ground, but we feel it is
necessary to expound this further as
misapprehension still exists. The question
is, in what way can it be used in support of
other evidence? Can it be used to fill in
missing gaps? Can it be used to corroborate
an accomplice or, as in the present case, a
witness who, though not an accomplice, is
placed in the same category regarding
credibility because the Judge refuses to
believe him except insofar as he is
corroborated?
9. In our opinion, the matter was put
succinctly by Sir Lawrence Jenkins
in Emperor v. Lalit Mohan
Chuckerbutty [Emperor
v. Lalit Mohan Chuckerbutty, ILR (1911) 38
Cal 559 at p. 588.] where he said that such
a confession can only be used to "lend
27
assurance to other evidence against a co-
accused "or, to put it in another way, as
Reilly, J. did in Periaswami Moopan, In
re [Periaswami Moopan, In re, 1930 SCC
OnLine Mad 86 : ILR (1931) 54 Mad 75 at p.
77.] : (SCC OnLine Mad)
'...the provision goes no further than this--
where there is evidence against the co-accused
sufficient, if believed, to support his conviction,
then the kind of confession described in Section
30 may be thrown into the scale as an additional
reason for believing that evidence.'
10. Translating these observations into
concrete terms they come to this. The proper
way to approach a case of this kind is, first, to
marshal the evidence against the accused
excluding the confession altogether from
consideration and see whether, if it is believed, a
conviction could safely be based on it. If it is
capable of belief independently of the confession,
then of course it is not necessary to call the
confession in aid. But cases may arise where the
Judge is not prepared to act on the other
evidence as it stands even though, if believed, it
would be sufficient to sustain a conviction. In
such an event the Judge may call in aid the
confession and use it to lend assurance to the
other evidence and thus fortify himself in
believing what without the aid of the confession
he would not be prepared to accept."
11. The law laid down in Kashmira
Singh [Kashmira Singh v. State of M.P., (1952) 1 SCC
275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ
839] was approved by a Constitution Bench of this Court
in Haricharan Kurmi v. State of Bihar [Haricharan
Kurmi v. State of Bihar, (1964) 6 SCR 623 at pp. 631-633
: AIR 1964 SC 1184: (1964) 2 Cri LJ 344] wherein it was
observed: (Haricharan case [Haricharan Kurmi v. State of
Bihar, (1964) 6 SCR 623 at pp. 631-633 : AIR 1964 SC
1184 : (1964) 2 Cri LJ 344] , AIR p. 1188, para 12)
"12. As we have already indicated, this
question has been considered on several
28
occasions by judicial decisions and it has been
consistently held that a confession cannot be
treated as evidence which is substantive
evidence against a co-accused person. In
dealing with a criminal case where the
prosecution relies upon the confession of one
accused person against another accused
person, the proper approach to adopt is to
consider the other evidence against such an
accused person, and if the said evidence
appears to be satisfactory and the court is
inclined to hold that the said evidence may
sustain the charge framed against the said
accused person, the court turns to the
confession with a view to assure itself that the
conclusion which it is inclined to draw from the
other evidence is right. As was observed by Sir
Lawrence Jenkins in Emperor v. Lalit Mohan
Chuckerbutty [Emperor v. Lalit Mohan
Chuckerbutty, ILR (1911) 38 Cal 559 at p.
588.] a confession can only be used to "lend
assurance to other evidence against a co-
accused". In Periaswami Moopan, In re [Periaswami
Moopan, In re, 1930 SCC OnLine Mad 86 : ILR
(1931) 54 Mad 75 at p. 77.] Reilly, J., observed that
the provision of Section 30 goes not further than
this: (SCC OnLine Mad)
'...where there is evidence against the co-
accused sufficient, if believed, to support his
conviction, then the kind of confession described in
Section 30 may be thrown into the scale as an
additional reason for believing that evidence.'
In Bhuboni Sahu v. R. [Bhuboni Sahu v. R.,
1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p.
155.] the Privy Council has expressed the same
view. Sir John Beaumont who spoke for the Board,
observed that: (SCC OnLine PC)
'... a confession of a co-accused is
obviously evidence of a very weak type. It does
not indeed come within the definition of
"evidence" contained in Section 3 of the
Evidence Act. It is not required to be given on
oath, nor in the presence of the accused, and it
cannot be tested by cross-examination. It is a
29
much weaker type of evidence than the
evidence of an approver, which is not subject
to any of those infirmities. Section 30,
however, provides that the court may take the
confession into consideration and thereby, no
doubt, makes it evidence on which the court
may act; but the section does not say that the
confession is to amount to proof. Clearly there
must be other evidence. The confession is only
one element in the consideration of all the facts
proved in the case; it can be put into the scale
and weighed with the other evidence.'
It would be noticed that as a result of
the provisions contained in Section 30, the
confession has no doubt to be regarded as
amounting to evidence in a general way,
because whatever is considered by the court is
evidence; circumstances which are considered
by the court as well as probabilities do amount
to evidence in that generic sense. Thus, though
confession may be regarded as evidence in that
generic sense because of the provisions of
Section 30, the fact remains that it is not
evidence as defined by Section 3 of the Act. The
result, therefore, is that in dealing with a case
against an accused person, the court cannot
start with the confession of a co-accused
person; it must begin with other evidence
adduced by the prosecution and after it has
formed its opinion with regard to the quality
and effect of the said evidence, then it is
permissible to turn to the confession in order to
receive assurance to the conclusion of guilt
which the judicial mind is about to reach on the
said other evidence. That, briefly stated, is the
effect of the provisions contained in Section 30. The
same view has been expressed by this Court
in Kashmira Singh v. State of M.P. [Kashmira
Singh v. State of M.P., (1952) 1 SCC 275: 1952 SCR
526 : AIR 1952 SC 159 : 1952 Cri LJ 839] where the
decision of the Privy Council in Bhuboni Sahu
case [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 :
(1948-49) 76 IA 147 at p. 155.] has been cited with
approval."
30
12. The law so laid down has always been followed by this
Court except in cases where there is a specific provision in law
making such confession of a co-accused admissible against another
accused. [ For example: State v. Nalini, (1999) 5 SCC 253, paras
424 and 704 : 1999 SCC (Cri) 691]
13. In the present case it is accepted that apart from
the aforesaid statements of co-accused there is no material
suggesting involvement of the appellant in the crime in
question. We are thus left with only one piece of material
that is the confessional statements of the co-accused as
stated above. On the touchstone of law laid down by this
Court, such a confessional statement of a co-accused cannot
by itself be taken as a substantive piece of evidence against
another co-accused and can at best be used or utilised in
order to lend assurance to the Court."
A coordinate Bench of this Court considering all the other judgments on
the issue rendered by the Apex Court has held in the case of SRINIVASA
@ KULLOA SEENA v. STATE OF KARNATAKA reported in Criminal
Petition No.2007 of 2023 decided on 10th July, 2023, as follows:
" 13. On 10.6.2018, the accused No.4 was arrested at3.05
a.m. On the basis of his voluntary statement, accusedNos.2, 3,
6 and 7 and the petitioner as accused No.1 are arrayed. The
spot mahazar was conducted on 10.6.2018between 7.00 a.m. to
8.15 a.m. Even on the date of spot mahazar, the name of the
petitioner was not mentioned by the eye witness - CW1. On
10.6.2018, the inquest panchanama was conducted at KIMS
hospital between 1.00 p.m. to 3.00p.m, and at the time of
inquest, CW3-father, CW4-sister and CW5 mother, suspected
the name of petitioner on the basis of hear say statement.
14. The voluntary statements of the accused Nos.2, 3,6
and 7 were recorded on 13.6.2018, and the accused No.2 in the
voluntary statement is alleged to have stated that, at the
instance of accused No.1 and other accused, they have hatched
the criminal conspiracy to kill Jayanth son of CW3. Except the
statement of CWs.3 to 5, who suspected the involvement of the
petitioner on hearsay information, and the voluntary statement
of accused No.2, the police have not placed any corroborative
material to substantiate that, at the instance of accused
No.1,the criminal conspiracy was hatched to do away the life of
the deceased Jayanth. The police during the course of
31
investigation, have recorded the statement of many as
47witnesses, and none of the witnesses have spoken about the
involvement of accused No.1 in the commission of the aforesaid
crime.
15. The High Court of Delhi in the case of V K Verma
(supra) at para-66 has held as follows:
"66. From the aforesaid analysis, it is clear that
at the stage of framing of charge, the Ld. Judge is
merely required to overview the evidence in order to
find out whether or not there is sufficient ground for
proceeding against the accused, or in other words,
whether a prima facie case is made out against the
accused. it is also settled that at the time of framing
of charges there is requirement of satisfaction only
regarding the probability of the accused having
committed the offence and not of the proof of his
culpability beyond reasonable doubt, yet while
framing the charge some material must still be
available so as to appeal to the judicial conscience on
which a prima facie case is established against the
accused."
16. The Hon'ble Supreme Court in the case of State of
Rajasthan -vs- Fatehakaran Mehdu (2017) 3 SCC 198
(supra)at para-26 has held as follows:
"26. The scope of interference and exercise of
jurisdiction under Section 397 Cr.PC has been time
and again explained by this Court. Further, the scope
of interference uynder Section397 Cr.PC at a stage,
when charge had been framed, is also well settled. AT
the stage of framing of a charge, the court is
concerned not with the proof of the allegation rather
it has to focus on the material and form an opinion
whether there is strong suspicion that the accused
has committed an offence, which if put to trial, could
prove his guilt. The framing of charge is not a stage,
at which stage final test of guilt is to be applied.
Thus, to hold that at the stage of framing the charge,
the court should form an opinion that the accused is
certainly guilty of committing an offence, is to hold
something which is neither permissible nor is in
consonance with the scheme of the Code of Criminal
Procedure."
32
17. The Hon'ble Supreme Court in the case of Union of
India v. Prafulla Kumar Samal, (1979) 3 SCC 4 while
considering the scope of provisions contained in Section 227
of Cr.PC at para-10 has held as follows:
"10. Thus, on a consideration of the authorities
mentioned above, the following principles emerge:
(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has the
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie
case against the accused has been made out.
(2) Where the materials placed before the
Court disclose grave suspicion against the accused
which has not been properly explained the Court will
be fully justified in framing a charge and proceeding
with the trial.
(3) The test to determine a prima facie case
would naturally depend upon the facts of each case
and it is difficult to lay down a rule of universal
application. By and large however if two views are
equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to
some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge
the accused.
(4) That in exercising his jurisdiction under Section
227 of the Code the Judge which under the present Code is
a senior and experienced court cannot act merely as a Post
Office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the total effect
of the evidence and the documents produced before the
Court, any basic infirmities appearing in the case and so on.
This however does not mean that the Judge should make a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial."
"18. The coordinate Bench of this Court in
Crl.RPNo.1008/2008 (22.10.2008), in identical circumstances, at
paras-11 to 13 has held as follows:
33
11. Except the above statements no other material is
there on record to come to the conclusion that there are
grounds to presume that this petitioner committed the
offence of conspiracy along with all or any of the accused
Nos.1 to 8 in plotting the scheme for murdering the
deceased. Besides this, in support of his contentions Sri. H.P.
Leeladhar, learned counsel for the petitioner has relied upon the
following decisions
1.2008 (2) Crimes 263 (SC) Yogesh @ Sachin Jagdish Joshi Vs.
State of Maharashtra.
2.1996(3) Crimes 85 (SC) Satish Mehra Vs. Delhi Administration
and Another.
3.1998(1) Crimes 219(SC) Central Bureau of Investigation Vs, V.C.
Shukla and Others.
4.1997 CRL.L.J. 2559 L.K. Advani Vs. Central Bureau of
Investigation
12. In first of the above said decisions i.e. in 2008(2) Crimes 263
(SC) it is observed at paragraph 18 as under:-
para 18: "The basic ingredients of the offences of criminal
conspiracy are: (i) an agreement between two or more persons;
(ii) the agreement must relate to doing or causing to be done
either (a) an illegal act; or (b) an act which in not illegal in itself
but is done by illegal means. It is therefore, plain that meeting of
minds of two or more persons for doing or causing to be done an
illegal act or an act by illegal means is sine qua non of criminal
conspiracy. Yet as observed by this Court in Shivanarayan
Laxminarayan Joshi & Ors. Vs. State of Maharashtra, a conspiracy
is always hatched in secrecy and it is impossible to adduce direct
evidence of the common intention of the conspirators. Therefore,
the meeting of minds of the conspirators can be inferred from the
circumstances proved by the prosecution, if such inference is
possible".
If the statements of the said witnesses, are examined in the light
of these observations of the Hon'ble Supreme Court, it could be
seen that they do not disclose the facts from which the commission
of the offence of conspiracy could be inferred against the present
petitioner (A9)
34
13. In he second of the said decisions i.e. 1996(3) Crimes 85
(Satish Mehra Vs. Delhi Administration and Others) the Hon'ble
Supreme Court has observed at para Nos. 12 and 13 as under-
para 12:" The object providing such an opportunity as is envisaged
in section 227 of the Code is enable the Court to decide whether it
is necessary to proceed to conduct the trial. If the case ends there
it gains a lot of time of the Court and saves much human efforts
and cost. If the materials produced by the accused even at that
early stage would clinch the issue, why should the Court shut it out
saying that such documents need be produced only after wasting a
lot more time in the name of trial proceedings. Hence, we are of
the view that Sessions Judge would be within his powers to
consider even materials which the accused may produce at the
stage contemplated in Section 227 of the Code.
para 13: But when Judge, is fairly certain that there is no
prospect of the case ending in conviction the valuable time
of the Court should not be wasted for holding a trial only for
the purpose of formally completing the procedure to
pronounce the conclusion on a future date. We are mindful
that most of the Sessions Courts in India are under heavy
pressure of work-load. If the Sessions Judge is almost
certain that the trial would only be an exercise in futility or
a sheer waste of time it is advisable to truncate or ship the
proceedings at the stage of Section 227 of the Code itself".
In the light of these observation, it could be seen in the instant
case that the statements of the said witnesses even taken at their
face value, do not make out grounds to presume that this
petitioner committed the offences of conspiracy.
19. The coordinate Bench of this Court in
Crl.PNo.10860/2022 (2.1.2023) at para - 14 has held as follows:
14. On perusal of the judgment of the Hon'ble Supreme
Court in the above said cases to the facts and
circumstances of the case, where, except a voluntary
statement of the co-accused saying that this petitioner-
accused came to Bangalore along with accused No.1 in the
year 2017, there is no material collected by the
Investigating Officer to connect the accused with the crime
and even accused Nos.3 to 9 came to Bengaluru at the
instance of accused No.1 for recovery of arrears of
commission and there is no allegation against this petitioner
that this petitioner sent those accused persons and also
accused No.3 contacted accused No.1 after the incident, but
35
not this petitioner and no CDR produced to show that this
petitioner contacted accused Nos.3 to 9 in respect of either
prior to the commission of offence or after the commission
of offence. Therefore, it clearly reveals that the petitioner
being the son of accused No.1 has been falsely implicated
by the CW-2 did not lodge any complaint and he has
narrated the incident only after the commission of incident
by hearing the dame from CW.1, Therefore, considering the
facts as held by the Hon'ble Supreme Court in the case of
State of Haryana Vs/ Bhajan Lal and other cases stated
supra, absolutely, there is no material on record to connect
the accused with the crime either to frame charges under
Section 120B or109 or 302 read with Section 149 of IPC.
Therefore, I am of the view, conducting proceedings against
this petitioner-accused No.2 is nothing but abuse of process
of law and the same is liable to be quashed
20. It is settled law that the confession statement
recorded under Section 25 of the Indian Evidence Act is
inadmissible in law. Section 114 Illustration (b) of the
Indian Evidence Act specifies that, the statement of an
accomplice is unworthy or credit, unless he is corroborated
in material particulars. In the instant case, except the
voluntary statement of accused No.2, who is alleged to
have stated that, the other accused conspired to do away
the life of the deceased, Jayanth, at the instance of accused
No.1, there is no corroborative material placed along with
the charge sheet to establish that, the accused No.1
instigated the other accused to do away the life of the
deceased, Jayanth. In the absence of any corroborative
material, except the statement of co-accused, the
continuation of criminal proceedings will be an abuse of
process of law. In the absence of any prima facie case to
proceed against the accused No.1, the learned Sessions
Judge has committed an error in exercising the power
conferred under Section 227 of Cr.PC and the same is not
sustainable in law. Accordingly, I pass the following:
ORDER
i) Criminal petition is allowed.
ii) The impugned order dated 13.5.2022 passed
in SC No.24/2019 by the learned 68th Addl. City Civil and Sessions Judge at Bengaluru (CCH-68) on the application filed by the accused No.1 under Sections 227 and 228 of Cr.PC is hereby set aside and consequently the application 36 is allowed and the accused No.1 is discharged of the offences alleged against him."
Though several judgments bear reference in the order passed by the coordinate Bench, the judgment in the case of Dipakbhai Jagdishchandra Patel (supra) does not find a place. In the light of admitted fact that the petitioner was in Police custody on the date and time when the crime comes to be registered and since he is dragged in only on the strength of the voluntary statement of the co- accused, the charge against the petitioner would tumble down. The submission of the learned High Court Government Pleader would have become acceptable that this Court should not entertain the petition at this juncture, but the glaring facts clinching enough they are, would enure to the benefit of the petitioner as he should not be permitted to undergo the rigmarole of trial when there being no material against him except the voluntary statement of the co-accused.
8. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The order dated 31.05.2017 passed by the Principal City Civil and Sessions Judge, Bengaluru in Special S.C.No.414/2017 and the relevant charge sheet filed thereto stand quashed qua the petitioner.
(iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against any other accused pending before any other fora."
(Emphasis supplied) 37
9. In the light of the petitioner also suffering similar allegations against him, as that of K.S.Rohit and the coordinate bench quashing the inclusion of KCOCA qua accused No.11 and this Court holding that accused No.11 was in police custody on the night of 19-02-2017 along with the petitioner, all the findings rendered therein would become squarely applicable to the facts obtaining in the case at hand. In that light, despite the vehement opposition of the learned Additional State Public Prosecutor that the petitioner should face trial and come out clean as the charge sheet is filed by the police, I deem it appropriate to follow the judgment of the coordinate bench in W.P.No.16771 of 2017 and so also, the reasons rendered to quash the proceedings qua accused No.11-K.S.Rohit by this Court in Crl.P.No.9819 of 2023 and obliterate the proceedings against the petitioner-accused No.12, as otherwise, it would lead to miscarriage of justice.
10. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.38
(ii) Impugned crime in Crime No.58 of 2017 and all further proceedings taken thereto in Spl.C.C.No.414 of 2017, pending on the file of XLIV ACMM, Bengaluru stands quashed qua the petitioner.
(iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against any other accused pending before any other fora."
Pending applications, if any, also stand disposed.
Sd/-
(M.NAGAPRASANNA) JUDGE bkp CT:SS