Karnataka High Court
Shri Basavaraj S/O Yallappa ... vs The State Of Karnataka on 1 August, 2023
Bench: M.Nagaprasannapresided Bymnpj
-1-
NC: 2023:KHC-D:8052
CRL.P No. 104281 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 104281 OF 2022 (482)
BETWEEN:
SHRI. BASAVARAJ S/O YALLAPPA MELAMATTI,
AGE. 23 YEARS, OCC. STUDENT,
R/O. NALLANATTI-591218,
TAL. GOKAK, DIST. BELAGAVI.
... PETITIONER
(BY SRI. SHEKHARGOUDA M NAGANURI &
SRI. ANAND KUMAR ASHTEKAR, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
SUB URBAN POLICE STATION, DHARWAD,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
VISHAL 2. MAHANTESH S HIREMATH,
AGE. 46 YEARS, OCC. SERVICE,
NINGAPPA R/O. AAO SP OFFICE, HUBBALLI,
PATTIHAL DIST. DHARWAD-580024.
... RESPONDENTS
Digitally signed by (BY SRI. V S KALASURMATH, HCGP)
VISHAL NINGAPPA
PATTIHAL
Date: 2023.08.04 THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
10:53:37 +0530 SEEKING TO QUASHING THE PROCEEDINGS AGAINST THE
PETITIONER/ACCUSED NO.4 IN C.C.NO.2036/2021 SUB URBAN
POLICE STATION CRIME NO.159/2021) PENDING ON THE FILE OF
PRINCIPAL CIVIL JUDGE AND J.M.F.C., DHARWAD FOR THE
OFFENCES PUNISHABLE U/SECTIONS 419, 465, 468, 471, 420, 109
R/W SEC. 34 OF IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
-2-
NC: 2023:KHC-D:8052
CRL.P No. 104281 of 2022
ORDER
The petitioner is before this Court calling in question
proceedings in C.C. No.2036/2021 registered for the
offences punishable under Sections 419, 465, 471, 420,
109 read with Section 34 of IPC.
2. Heard the learned counsel for the parties.
3. Facts in brief, germane, are as follows:
A complaint comes to be registered on 05.05.2021
which becomes a crime in Crime No.159/2021 for the
afore quoted offences. The name of the petitioner did not
figure in the complaint or in the crime so registered. The
Police conducted investigation and filed a charge sheet.
During the filing of the final report - the charge sheet, the
name of the petitioner is roped in as accused No.4. The
filing of the charge sheet against the petitioner is what
drives the petitioner to this Court in the subject petition.
4. The learned counsel appearing for the petitioner
would contend that the offences alleged against the
NC: 2023:KHC-D:8052
CRL.P No. 104281 of 2022
petitioner - accused No.4 and accused No.5 are identical
and against accused No.5, this Court has quashed the
proceedings in Criminal Petition No.100820/2022.
5. The learned HCGP though would seek to refute
the submissions of the learned counsel for the petitioner,
but would submit that this Court had quashed the
proceedings against accused No.5 and against accused
No.4, the offences alleged are identical.
6. I have given my anxious considerations to the
submissions advanced on both the learned counsel and
have perused the material on record.
7. The petitioner was not named in the complaint
nor an accused in the FIR, he is for the first time roped in
as an accused in the charge sheet, it is germane to notice
column No.17 - the summary of the charge which reads
as follows:
"F ¥ÀæPÀgÀtzÀ°è PÁ®A: 12gÀ°è £ÀªÀÄÆzÀ ªÀiÁrzÀ DgÉÆæ
£ÀA:1 ²ªÀ¥Àà ¥sÀQÃgÀ¥Àà ¥ÀqÉ¥Àà£ÀªÀgÀ £ÉÃzÀݪÀ£ÄÀ ¸À£ï 2020 £ÉÃ
¸Á°£À ¥Éưøï E¯ÁSÉAiÀÄ J¦¹ ºÀÄzÉÝUÀ¼À £ÉêÀÄPÁwUÁV Cfð
NC: 2023:KHC-D:8052
CRL.P No. 104281 of 2022
¸À°è¹ £ÀAvÀgÀ ¥ÀæªÉñÀ ¥ÀjÃPÉëAiÀÄ°è 1:5 gÀAvÉ CºÀðvÉ ¥ÀqÉzÀÄ,
zÉÊ»PÀ ¥ÀjÃPÉëUÁV DAiÉÄÌAiÀiÁVzÀÝjAzÀ ¸ÀzÀjAiÀĪÀ£ÀzÀÄ ¢£ÁAPÀ :
19.12.2020 gÀAzÀÄ £ÀqÉÃzÀ zÉÊ»PÀ ¸ÁªÀÄxÀåð ªÀÄvÀÄÛ
zÉúÀzÁqsÀåðvÉ ¥ÀjÃPÉë [ET/PST] UÉ ºÁdgÁV
CºÀðvÉAiÀiÁUÀ¨ÉÃQvÀÄÛ. DzÀgÉà ¸ÀzÀj DgÉÆæ £ÀA : 1 ²ªÀ¥Àà
¥sÀQÃgÀ¥Àà ¥Àr¥Àà£ÀªÀgÀ FvÀ£ÀÄ vÁ£ÀÄ AiÀiÁªÀÅzÉà jÃwAiÀÄ°è ¥Á¸À
ªÀiÁr ¸ÀgÀPÁj GwtðªÁUÀĪÀÅ¢¯Áè CAvÁ ªÀÄ£ÀUÆ É AqÀÄ, ¸ÀzÀj
¥ÀjÃPÉëAiÀÄ£ÀÄß vÁ£ÀÆ AiÀiÁªÀÅzÉà jÃwAiÀÄ°è ¥Á¸À ªÀiÁr ¸ÀgÀPÁj
£ËPÀjAiÀÄ£ÀÄß VnÖ¹PÉƼÀî¨ÉÃPÉA§ zÀÄgÀÄzÉÝñÀ¢AzÀ ºÁUÀÆ
zÀĪÀiÁðUÀðzÀ ªÀÄÄSÁAvÀgÀ £ËPÀj VnÖ¹PÉÆÃqÀgÉà vÀ¥ÀÄà CAvÁ
UÉÆwÛzÀÝgÀÆ ¸À»vÀ, PÁ®A 12 gÀ°èAiÀÄ 5£Éà DgÉÆævÀ£ÁzÀ
ªÀÄAdÄ£ÁxÀ ªÀÄzÀ£À PÀjUÁgÀ EvÀ£À ¥ÀjZÀAiÀÄzÀ ªÀÄÄSÁAvÀgÀ 3
£Éà DgÉÆævÀ£ÁzÀ §¸ÀªÀgÁd zÀ±ÀgÀxÀ zÉêÀgÀªÀĤUÉ ºÉý CªÀ£À
¥ÀjZÀAiÀÄzÀªÀ£ÁzÀ 4£Éà DgÉÆæAiÀiÁzÀ §¸ÀªÀgÁd AiÀÄ®è¥Àà
ªÉîªÀÅnÖAiÀÄ UɼÉAiÀÄ£ÁzÀ ºÁUÀÆ F ¥ÀæPÀgÀtzÀ 2£ÉÃ
DgÉÆævÀ£ÁzÀ D£ÀAzÀ zÀ±ÀgÀxÀ PÀļÀÆîgÀ¤UÉ ¸ÀzÀj zÉÊ»PÀ
¸ÁªÀÄxÀåð ªÀÄvÀÄÛ zÉúÀzÁqsÀåðvÉ ¥ÀjÃPÉë [ET/PST] UÉ ºÁdgÁV
¥Á¸ï ªÀiÁr¹ PÉÆqÀ®Ä ºÉýzÀÄÝ C®èzÉà ¸ÀzÀj ¥ÀjÃPÉëAiÀÄ£ÀÄß
DgÉÆæ £ÀA : 2£ÉÃzÀªÀgÀÄ ¥Á¸À ªÀiÁr¹zÀgÉà CªÀ¤UÉ ºÀt
¤ÃqÀĪÀÅzÁV ºÉýzÀAvÉ ¸ÀzÀj 1£Éà DgÉÆævÀ£ÀÄ E£ÀÄß½zÀ
£Á®ÆÌ d£À DgÉÆævÀgÀ eÉÆvÉ ¸ÀAUÀ£ÀªÀÄvÀ ªÀiÁrPÉÆAqÀÄ, ªÀiÁ£Àå
¦æ¤ì¥sÀ¯ï ¹eÉ (Q«) ªÀÄvÀÄÛ eÉJAJ¥sÀ¹ £ÁåAiÀiÁ®AiÀÄ
zsÁgÀªÁqÀgÀªÀgÀ ªÁå¦ÛAiÀÄ zsÁgÀªÁqÀ G¥À£ÀUÀgÀ ¥Éưøï oÁuÁ
ºÀ¢ÝAiÀÄ ¥ÉÊQ zsÁgÀªÁqÀ Dgï J£ï ±ÉnÖ QæÃqÁAUÀtzÀ°è ¢£ÁAPÀ :
19.12.2020 gÀAzÀÄ DgÉÆæ £ÀA : 2£ÉÃzÀݪÀ£ÀÄ zÉÊ»PÀ
¸ÁªÀÄxÀåð ªÀÄvÀÄÛ zÉúÀzÁqsÀåðvÉ ¥ÀjÃPÉëUÉ DgÉÆæ
£ÀA.1£ÉÃzÀªÀ£ÀAvÉ £Àn¹ ºÁegÁV ¥ÀjÃPÉë ¥Á¸À ªÀiÁrzÀÄÝzÀjAzÁ
DgÉÆæ £ÀA.1£ÉÃzÀݪÀ¤UÉ ¸ÀgÀPÁj £ËPÀjUÉ CºÀð£ÁVgÀÄvÁÛ£É.
§A¢zÀÄÝ EgÀÄvÀÛzÉ. F CºÀðvÉ ¥ÀqÉAiÀÄ®Ä 1£Éà DgÉÆævÀ£ÀÄ
ªÀiÁvÀ£ÁrPÉÆAqÀ MlÄÖ gÀÆ.2.30.000/- ºÀtªÀ£ÀÄß DgÉÆæ £ÀA
: 2,3,4 ºÁUÀÆ 5 £ÉÃzÀݪÀjUÉ ¤ÃrzÀÝ£ÀÄß CªÀÅUÀ¼À£ÄÀ ß vÀªÀÄä°èAiÉÄÃ
ºÀAaPÉÆAqÀÄ RZÀÄð ªÀiÁr G½zÀ ªÀ±À¥Àr¹PÉÆAqÀ MlÄÖ
1,50,000/- ºÀt ¸ÀªÉÄÃvÀ ¹QÌzÀÄÝ EgÀÄvÀÛzÉ. F ªÀÄÆ®PÀ
NC: 2023:KHC-D:8052
CRL.P No. 104281 of 2022
¸ÀgÀPÁj PÉ®¸ÀªÀ£ÀÄ VnÖ¹PÉƼÀî®Ä DgÉÆæ £ÀA.1£ÉÃzÀªÀ£ÀÄ
ºÁUÀÆ CPÀæªÀĪÁV PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁV vÀªÄÀ ä ¯Á¨sÀPÁÌV
DgÉÆæ £ÀA.2 jAzÀ 5£Éà ¸ÀgÀPÁgÀPÉÌ ªÀAa¹zÀ C¥ÀgÁzÀ.
PÀ®A.419,465,468,471,420,109 ¸ÀºÀPÀ®A.34 L¦¹."
8. A perusal at the summary of the charge sheet
would clearly indicate that the offences against the
petitioner and accused No.5 are in common as there is no
pointed allegation independently alleged against the
petitioner in the summary of the charge sheet. Therefore,
it becomes necessary to notice the judgment rendered by
the Co-ordinate Bench qua accused No.5. The Co-ordinate
Bench has held as follows:
"The FIR was lodged by the 2nd respondent alleging
that on 19.12.2020, the accused No.2 impersonated
accused No.1 and appeared in the physical test conducted
for selection to the post of 'Police Constable'. The Police,
after investigation, submitted the charge sheet arraigning
the present petitioner as accused No.5 on the basis of the
statement of co-accused and also the voluntary statement
of accused No.5 that he has facilitated accused No.2 in
impersonating accused No.1 and received a sum of
Rs.40,000/- towards his share out of which he has spent
Rs.20,000/-. The learned Magistrate after accepting the
charge sheet, took cognizance of the offences punishable
NC: 2023:KHC-D:8052
CRL.P No. 104281 of 2022
under Sections 419, 465, 468, 471, 420, 109 read with
Section 34 of IPC.
2. Learned counsel appearing for the petitioner
submits that the charge sheet filed on the basis of the
statement of co-accused and the voluntary statement in
the absence of corroborative material is impermissible. In
support, he places reliance on the decision of the Hon'ble
Supreme Court in the case of Surinder Kumar Khanna
vs. Intelligence Officer, Directorate of Revenue
Intelligence1.
3. On the other hand, the learned HCGP
appearing for the respondent-State submits that the
statement of the co-accused, the voluntary statement of
the accused No.5 and also the recovery of Rs.20,000/-
from the custody of accused No.5, clearly establishes that
the accused No.5 facilitated accused No.2 in
impersonating accused No.1 and the Police after
investigation have rightly filed the charge sheet and the
same does not warrant any interference.
4. I have examined the submissions made by
the learned counsel for the parties.
5. The charge sheet was filed on the basis of
the statement of accused Nos.1 and 2 and also on the
voluntary statement of accused No.5 who is alleged to
have confessed that he has facilitated accused No.2 in
impersonating accused No.1 and has received a sum of
Rs.40,000/- towards his share. The charge sheet material
(2018 ) 8 SCC 271
NC: 2023:KHC-D:8052
CRL.P No. 104281 of 2022
also discloses a sum of Rs.20,000/- was recovered from
the accused No.5. However, there is no corroborative
material produced alongwith charge sheet accept the
statement of the co-accused and the voluntary statement.
The Hon'ble Supreme Court in the case of Surinder
Kumar Khanna supra has held as follows:
"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
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."
6. The Hon'ble Supreme Court in the aforesaid
case has held that the Court cannot start with the
NC: 2023:KHC-D:8052
CRL.P No. 104281 of 2022
confession of a co-accused person and 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 confession
in order to receive assurance to the conclusion of the guilt
which the judicial mind is about to reach on the said other
evidence.
7. In the present case, the charge sheet filed
only on the basis of the statement of the co-accused and
the voluntary statement of the accused No.5. In the
absence of any corroborative material to substantiate the
allegation that the accused No.5 facilitated the accused
No.2, the charge sheet filed is without any substance.
Accordingly, I pass the following:
ORDER
Criminal petition is allowed.
The impugned proceedings in C.C. No.2036/2021
pending on the file of the Principal Civil Judge and JMFC,
Dharwad insofar it relates to the petitioner-accused No.5
is hereby quashed.
9. The allegation against accused No.5 was also a
receipt of Rs.20,000/-, as is alleged against accused No.4,
the petitioner. In the light of quashment of the
proceedings against accused No.4 on allegations being
NC: 2023:KHC-D:8052
CRL.P No. 104281 of 2022
same, it would enure to the benefit of the petitioner as
well. In the light of what is aforesaid, the following:
ORDER
Criminal petition is allowed.
The impugned proceedings in C.C. No.2036/2021
pending on the file of the Principal Civil Judge and JMFC,
Dharwad insofar it relates to the petitioner-accused No.4 is
hereby quashed.
Sd/-
JUDGE
Rsh/Ct:Bck
