Karnataka High Court
Mr Nowshad vs The State By Mangalore Rural Ps on 24 May, 2023
Bench: M.Nagaprasannapresided Bymnpj
-1-
CRL.P No. 6142 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 6142 OF 2022
BETWEEN:
MR NOWSHAD
S/O UMARABBA
AGED ABOUT 32 YEARS
R/O 2/81/3, GAANADA BETTU
KEMPUGUDDE
KANNUR VILLAGE AND POST
MAGNALORE
DAKSHINA KANNADA - 574 143.
...PETITIONER
(BY SRI ABDUL ANSAR P., ADVOCATE)
AND:
Digitally signed
by PADMAVATHI 1. THE STATE BY
BK
MANGALORE RURAL PS
Location: HIGH
COURT OF REPRESENTED BY
KARNATAKA STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
AMBEDKAR BEEDHI - 01
2. RAYYANA
AGED ABOUT 26 YEARS
W/O MUHAMMAD ISAQ
R/O 1-32, VALACCHIL OLD ROAD
ADHAR POST AND VILLAGE
-2-
CRL.P No. 6142 of 2022
MANGALORE
DAKSHINA KANNADA - 575 007.
...RESPONDENTS
(BY SMT. K.P.YASHODA, HCGP FOR R-1;
SRI ABDUL MAJIDA KHAN, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE PROCEEDINGS IN SPLIT
UP C.C.NO.264/2022 (ORIGINAL C.C.NO.262/2019) AGAINST
THE PETITIONER PENDING ON THE FILE OF J.M.F.C. - III,
MANGALURU, D.K. FOR THE OFFENCE P/U/S 498A OF IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question
continuation of proceedings in C.C.No.264/2022 against the
petitioner for the offences punishable under Sections 498A r/w.
34 of the IPC.
2. Heard Sri Abdul Ansar P., learned counsel for
petitioner, Smt. K.P.Yashodha, learned High Court Government
Pleader for respondent No.1 and Sri Abdul Majida Khan, learned
counsel for respondent No.2.
CRL.P No. 6142 of 2022
3. Facts in brief, germane for consideration of the lis are
as follows:
Respondent No.2 is the complainant and petitioner is
accused No.2, brother in-law of the complainant. Owing to
certain allegations of torture, the complainant registers a
complaint on 18.06.2018 against the husband along with the
present petitioner. The police after investigation file a charge
sheet on 01.11.2018 in C.C.No.262/2019. The matter was set
for trial. The petitioner was not available for trial, as he was
absconding and therefore, the concerned Court by its order
dated 17.02.2022 split the charge sheet against the petitioner
and registered a case in C.C.No.264/2022. After splitting up of
the charge sheet against the petitioner, the concerned Court
after completion of trial, in terms of its order dated 08.04.2022,
acquits accused No.1 - husband of all the offences alleged.
The said acquittal has become final according to the learned
counsel for the petitioner. What drives the petitioner to this
Court now is, the continuation of the proceedings in
C.C.No.264/2022 on the split up charge sheet laid against the
petitioner.
CRL.P No. 6142 of 2022
4. Learned counsel appearing for the petitioner would
contend that the entire allegations in the complaint is against
accused No.1 and if accused No.1 - husband is acquitted of all
the offences alleged by respondent No.2, the present petitioner
- brother in-law, against whom no direct allegations are made
in also entitled to the same benefit that is rendered in the case
of the husband - accused No.1.
5. Learned High Court Government Pleader though would
refute the submissions of the learned counsel for petitioner
contends that the petitioner has escaped trial, no indulgence is
to be shown at the hands of this Court and the petitioner
should undergo trial and has to get acquitted in a full blown
trial as made in the case of accused No.1 and seeks dismissal
of the petition.
6. I have given my anxious consideration to the
submissions made by the learned counsel appearing for the
respective parties and have perused the material on record.
CRL.P No. 6142 of 2022
7. The afore-narrated facts are not in dispute and
therefore, requires no reiteration. The charge sheet laid
against the husband - accused No.1 in C.C.No.262/2019 ends
in acquittal. The order of acquittal assumes significance and
therefore, it is extracted for the purpose of quick reference.
"PÁgÀtUÀ¼ÀÄ
8. CA±À £ÀA.1: FUÁUÀ¯Éà w½¹zÀAvÉ C©üAiÉÆÃd£ÉAiÀĪÀgÀÄ vÀªÀÄä ¥ÀæPÀgÀtªÀ£ÀÄß
¸Á©ÃvÀÄ¥Àr¸À®Ä ¦AiÀiÁðzÀÄzÁgÀgÁzÀ ZÁ¸Á.1 gÀªÀgÀ£ÀÄß C¸Á.1 gÀªÀgÀ£ÀÄß
«ZÁgÀuÉUÉƼÀ¥Àr¹zÀÄÝ, CªÀgÀÄ vÀ£Àß ¸ÁPÀëöåzÀ°è ¢£ÁAPÀ:14.07.2017 gÀAzÀÄ vÀ£Àß ªÀÄvÀÄÛ
1 £Éà DgÉÆæAiÀÄ «ªÁºÀªÀÅ ªÀÄĹèA ¸ÀA¥ÀæzÁAiÀÄzÀAvÉ £ÀqÉ¢zÀÄÝ, «ªÁºÀªÁzÀ £ÀAvÀgÀ
vÁ£ÀÄ DgÉÆævÀgÆ É A¢UÉ PÀtÆßj£À°ègÀĪÀ CªÀgÀ ªÀÄ£ÉAiÀÄ°è ªÁ¹¸ÀÄwÛzÀÄÝ, DUÁUÀ
aPÀÌ¥ÀÄlÖ dUÀ¼ÀUÀ¼ÀÄ vÀ£Àß ªÀÄvÀÄÛ 1 £Éà DgÉÆæAiÀÄ £ÀqÀÄªÉ DUÀÄwÛzÀÝgÀÆ ¸ÀºÀ
«ªÁºÀªÁzÀ ¢£À¢AzÀ E°èAiÀĪÀgÉUÉ DgÉÆævÀgÀÄ vÀ£ÀߣÀÄß ZÉ£ÁßV
£ÉÆÃrPÉÆArgÀÄvÁÛgÉ ºÁUÀÆ DgÉÆævÀgÀÄ ªÀgÀzÀQëuÉ PÀÄjvÀÄ vÀ£ÀUÉ ªÀiÁ£À¹PÀªÁV
ªÀÄvÀÄÛ zÉÊ»PÀªÁV »A¸ÉAiÀÄ£ÀÄß ¤ÃrgÀĪÀÅ¢®è JAzÀÄ ºÁUÀÆ vÁ£ÀÄ F WÀl£ÉUÉ
¸ÀA¨AzsÀ¥ÀlÖAvÉ ¥ÉưøÀjUÉ AiÀiÁªÀÅzÉà ºÉýPÉAiÀÄ£ÀÄß ¤ÃrgÀĪÀÅ¢®è JAzÀÄ ¸ÁPÀëöå
£ÀÄr¢gÀÄvÁÛgÉ. C®èzÉÃ, ¤¦.1: zÀÆgÀÄ ªÀÄvÀÄÛ ¤¦.2: vÀQëÃgÀÄ ¸ÀܼÀzÀ ªÀĺÀdgï
zÁR¯ÉUÀ½UÉ vÁ£ÀÄ UÁæªÀiÁAvÀgÀ ¥Éưøï oÁuÉAiÀÄ°è ¸À» ªÀiÁrzÀÄÝ, CªÀÅUÀ¼À°è K£ÀÄ
§gÉ¢zÉ JA§ÄzÀÄ vÀ£ÀUÉ UÉÆwÛ®è JAzÀÄ ºÁUÀÆ ¥ÉưøÀgÄÀ vÀ£Àß ¸ÀªÀÄPÀëªÀÄ ¤¦.2
zÁR¯ÉAiÀÄ£ÀÄß vÀAiÀiÁj¹gÀĪÀÅ¢®è JAzÀÄ ¸ÁPÀëöå £ÀÄr¢gÀÄvÁægÉ. C¸Á.1 gÀªÀgÀÄ
C©üAiÉÆÃd£ÉUÉ ¥ÀæwPÀÆ®ªÁV ¸ÁPÀëöå £ÀÄr¢zÀÝjAzÀ C©üAiÉÆd£ÉAiÀĪÀgÀÄ C¸Á.1
gÀªÀgÀ£ÀÄß ¥ÀæwPÀÆ® ¸ÁQë JAzÀÄ ¥ÀjUÀt¹ ¥ÁnøÀªÁ®Ä ªÀiÁrzÀÄÝ, ¥Ánà ¸ÀªÁ°£À°è
vÁ£ÀÄ DgÉÆæAiÉÆA¢UÉ gÁf ªÀiÁrPÉÆArgÀĪÀÅzÁV M¦àPÉÆArgÀÄvÁÛgÉ. §ºÀıÀ: D
PÁgÀtPÁÌV C¸Á.1 gÀªÀgÀÄ C©üAiÉÆÃd£ÉAiÀÄ ¥ÀæPÀgÀtPÉÌ ¥ÀæwPÀÆ® ¸ÁPÀëöå £ÀÄr¢gÀĪÀÅzÀÄ
PÀAqÀÄ §gÀÄvÀÛzÉ."
If the reasons rendered by the concerned Court for
acquitting accused No.1 is taken note of, the petitioner can
hardly be prosecuted further. Therefore, in the light of the
acquittal of accused No.1 - husband of the offence under
Section 498A r/w. 34 of the IPC, the petitioner - brother in-law
CRL.P No. 6142 of 2022
of the complainant can hardly be convicted for the offence
alleged.
8. The view of mine, in this regard, is fortified by the
judgment rendered by a Co-ordinate Bench of this Court in
Crl.P.4796/2017 wherein the Co-ordinate Bench considering
identical set of facts has held as follows:
"12. Having heard the learned Advocates
appearing for parties and on perusal of records it
would disclose that petitioner/accused was never
traced and non-bailable warrant issued against him
was never executed. Hon'ble Apex Court in the case
of CENTRAL BUREAU OF INVESTIGATION vs
AKHILESH SINGH reported in AIR 2005 SCC 268
has held quashing of charge and order discharging
co-accused can be passed, if the proceedings
initiated against co-accused is on similar allegations
and if said judgment had reached finality. It is also
held that discharge of a co-accused by the High
Court by holding that no purpose would be served in
further proceeding with the case, is just and proper.
In another ruling in MOHAMMED ILIAS vs. STATE
OF KARNATAKA reported in (2001) 3 Kant LJ
551 this Court has held as under:
"The petitioner is the accused in the case
and he is shown to be the absconding.
Therefore, the case against the petitioner
was split up and charge-sheet was laid
against other available accused Nos.1 and
3 for committing an offence punishable
under Sections 498A and 307 IPC r/w 34
Indian Penal Code, 1860. After the trial,
CRL.P No. 6142 of 2022
the Sessions Judge acquitted the accused
Nos.1 to 3. The petitioner was arrested
and proceedings were revived against him
in the split charge sheet.... In the instant
case also, the full pledged trial was held
against accused Nos.1 to 3, in respect of
the same offence. In the second round of
trial against the petitioner, the evidence
to be produced cannot be different from
the one that was produced by the
prosecution in the earlier case. Therefore,
in that view of the matter, the proceeding
is quashed."
13. Yet, in another ruling THE STATE OF
KARNATAKA vs. K.C.NARASEGOWDA reported in
ILR 2005 Kar. 1822 this Court has held to the
following effect:
"As the case before the Sessions Judge is
not a pending case, he cannot keep the
file any longer pending nor he can close
the case as he has to await appearance of
the accused or the production by the
State, for passing orders regarding
undergoing sentence. As such,
considering these peculiar facts and
circumstances, it is deemed proper to
exercise the inherent jurisdiction under
Section 482 of Cr.P.C. instead of
jurisdiction under Section 385 of Cr.P.C.
in the interest of justice. As the entire
material evidence of the prosecutions is
one and the same, as against all the
accused including the non-appealing
accused No.1, who is said to be
absconding, there is no second opinion
that he is also entitled for the same
benefit of doubt as he is extended for his
co-accused. Accused acquitted by giving
benefit of doubt."
CRL.P No. 6142 of 2022
14. In this background, when the facts on
hand are examined, it would clearly indicate that not
only complainant but also other witnesses including
the inmates of ambulance in which they were
travelling on the date of incident, had turned hostile
in the proceedings which was continued against co-
accused. Though, P.W.1 - complainant had admitted
that he has lodged a compliant as per Ex.P-1 and
had also admitted that he has given a statement
identifying the accused before the Investigation
Officer, he did not identify the accused persons
present before Court. In fact, statements given by
him as per Exs.P-2 to P-4 when confronted, he
denied the same and had also denied the suggestion
put by the public prosecutor that he had furnished
the statements as per Exs.P-2 to P-4 as false. P.W.2
to P.W.8 had not identified the accused persons
present before the jurisdictional Sessions Court. In
fact, they have not even identified the statements
made by them before the Investigating Officer and
nothing worthwhile has been elicited in their cross-
examination to disbelieve their evidence. Thus,
taking into consideration said evidence available on
record Sessions Court had arrived at a conclusion
that evidence of the witnesses examined by
prosecution would not come to their assistance. In
fact, witnesses to the seizure panchnama - Ex.P-40,
who were examined as P.W.16 and P.W.17, have
also turned hostile and they have stated that police
had called them a year back to the police station and
when they went to the police station, they had not
seen any accused persons in police station. However,
they admit police having taken their signatures on
the papers and contents of it were not known to
them.
15. It is in this background, trial Court on
appreciation of entire evidence had acquitted all the
accused persons by holding that prosecution had
failed to prove the offence alleging accused persons
CRL.P No. 6142 of 2022
beyond reasonable doubt attracting the ingredients
of provisions of the offence alleged against them. In
fact, Sessions Court has observed that there was
certain communal disturbance in Dakshina Kannada
district and other places at Bantwal Taluk and to
please on community of people, the Investigating
Officer might have falsely implicated the accused
persons in a false case or to avoid the blame to be
received from the public or other community people
and such possibilities cannot be ruled out. In this
background, when prayer of petitioner sought for in
the present petition is examined, it can be noticed
that contents of supplementary charge sheet filed
against the petitioner is similar, identical and in fact,
it is replica of charge made against accused Nos.1 to
23 and 25 to 33, who15 were tried in
S.C.No.12/2007, 94/2007 and 26/2008 and had
been acquitted.
16. In that view of the matter, this Court is of
the firm view that judgment rendered by trial Court
insofar as it relates to accused Nos.1 to 23 and 25 to
33 is similar and identical to the charge made against
the present petitioner. This Court does not find any
independent or separate material having been placed
by the prosecution against present petitioner to put
him on trial once again and directing the petitioner-
accused to undergo the order of trial, which
ultimately would fetch same result as that of accused
Nos.1 to 23 and 25 to 33. When allegation made
against accused Nos.1 to 23 and 25 to 33 is
compared with the allegation made against present
petitioner, it has to be necessarily held that they are
identical, similar and inseparable in nature and no
independent decision can be taken against the
present petitioner. Therefore, no purpose would be
served even if the present petitioner is ordered to be
tried by the trial Court.
17. In view of the afore stated facts and the
law laid down, as discussed hereinabove, it would
- 10 -
CRL.P No. 6142 of 2022
emerge that there would be no harm or injustice that
would be caused to prosecution if benefit of acquittal
order is passed in favour of accused - petitioner,
since accused Nos.1 to 23 and 25 to 33 against
whom similar allegation had been made is already
acquitted. Though, it is contended by Sri. Rachaiah,
learned HCGP appearing for the State that petitioner
should not be extended said benefit, since he is an
absconder, by relying upon judgment of Coordinate
Bench this Court is not inclined to accept said
contention for single reason that said judgment had
been rendered based on the judgment of Apex Court
in the case of DEEPAK RAJAK vs. STATE OF WEST
BENGAL reported in (2007) 15 SCC 305 where
under Apex Court after noticing the facts obtained in
the said case, had held that benefit of acquittal,
should be extended to the appellant, since co-
accused had been acquitted and held that a
departure can be made in cases where accused has
not surrendered "after conviction" in addition to
not filing an appeal against the conviction. As such,
noticing earlier position of law laid down it was held
by the Apex Court that in case of acquittal of a
accused for same offence on same set of facts and
on similar accusations, if considered, it would entile
for acquittal of co-accused also."
If the facts obtaining in the case at hand; the reasons on
which the learned Magistrate acquits accused No.1; the said
order of acquittal having become final, and the order passed by
the Co-ordinate Bench (supra), a trajectory of all the aforesaid
would lead to an unmistakable conclusion that the petitioner
cannot be permitted to undergo trial and I deem it appropriate
- 11 -
CRL.P No. 6142 of 2022
to obliterate the proceedings against the petitioner accepting
the subject petition filed under Section 482 of the Cr.P.C.
9. For the aforesaid reasons, the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The proceedings against the petitioner/accused
No.2 in split up C.C.No.264/2022
(C.C.No.262/2019) pending before the JMFC - III,
Mangaluru, D.K., stands quashed.
Sd/-
JUDGE
NVJ
CT:SS
