Karnataka High Court
Sri. Prem Kishan vs State Of Karnataka on 21 November, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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WP No. 23090 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 23090 OF 2023 (GM-RES)
BETWEEN:
SRI. PREM KISHAN,
S/O LATE BHASKAR T ANCHAN,
AGED 44 YEARS,
RESIDING AT 8/10(21),
"MAHASHAKTHI NILAYA",
BALLI COMPOUND,
2ND B CROSS ROAD,
KODICAL,
MANGALORE - 575 006.
...PETITIONER
(BY SRI. VINOD KUMAR M., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY MANGALORE RURAL POLICE STATION,
MANGALORE - 575 006.
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
Digitally signed by B K HIGH COURT OF KARNATAKA,
MAHENDRAKUMAR BANGALORE - 560 001.
Location: HIGH
COURT OF
KARNATAKA
2. SRI. ACHYUTA M,
S/O BABU,
AGED 59 YEARS,
RESIDING AT NO.1/71/47,
PADAVINANGADY
BHATRAKUMERU,
MANGALORE - 560 034.
...RESPONDENTS
(BY SRI.VENKATSATYANARAYAN A., HCGP FOR R1)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C.
PRAYING TO QUASHING THE ENTIRE PROCEEDINGS IN C.C.
NO.1153/2018 (CRIME NO.06/2010) OF MANGALORE RURAL POLICE
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WP No. 23090 of 2023
STATION, PENDING ON THE FILE OF JMFC II COURT, MANGALORE,
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A, 304B OF
INDIAN PENAL CODE PRODUCED AT ANNEXURE-A AND E, IN SO FAR
AS THE PETITIONER IS CONCERNED, HOLDING THAT IT IS AN
ABUSE OF PROCESS OF LAW AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDERS
The petitioner who is charge sheeted for the offence
punishable under Sections 498A and 304B of IPC is before this
Court.
2. The case of the prosecution is that, the
petitioner/accused No.1 is the son of accused No.2 and accused
No.3 is the daughter of accused No.2 and accused No.4 is the
husband of accused No.3 and accused No.5 is the driver of the
car. The marriage of accused No.1 with the deceased was
solemnized on 31.12.2008. After the marriage, accused No.1
went to Ghana leaving his wife(deceased) in the house of
accused No.2 and during her stay she was subjected to cruelty
by accused Nos.2 to 5 and also demand was made to bring
money from the parental home. Accused No.1 took the
deceased Sowmya to Ghana on 21.10.2009 and she committed
suicide by shooting with a gun.
3. The charge sheet was split up since accused No.1
was absconding. The trial Court after conducting the trial and
after appreciating the prosecution evidence, recorded a
categorical finding that the prosecution has failed to establish
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that accused Nos.2 to 5 along accused No.1 in furtherance of
common intention subjected the deceased Sowmya to cruelty
and also demanded to bring dowry and thereby caused the
death of Sowmya. The judgment of the acquittal passed in
favour of accused Nos.2 to 5 has attained finality.
4. Heard the learned counsel for the petitioner and
learned HCGP for respondent No.1 -State.
5. The specific allegation of subjecting the deceased to
cruelty during her stay in India after her marriage was against
accused Nos.2 to 5 and after she went to Ghana, there is no
allegation that the petitioners subjected the deceased to
cruelty. The incident of the deceased committing suicide took
place outside India.
6. Section 188 of Cr.P.C deals with offences
committed outside India, by a citizen of India, and the
cognizance of the offence shall be taken only with the previous
sanction of the Central Government.
7. The alleged incident of the wife of the petitioner
committing suicide was in Ghana, and the cognizance of the
offence alleged against the petitioner can be taken only with
previous sanction of the Central Government as stated under
Section 188 of Cr.P.C. Therefore, the cognizance taken in the
absence of sanction as stated under Section 188 of Cr.P.C
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stands vitiated. The allegation against the accused No.1 and
other accused are similar and are not severable.
8. Perusal of the charge sheet material indicates that
the charges against the Petitioner and accused Nos.2 to 5 are
similar and they are not distinct and separate.
9. It is settled law that when there are no separate
and distinct allegations made against the petitioner herein and
other accused persons, and when other accused persons are
acquitted, it would amount to abuse of process of law, if the
prosecution is ordered to be continued against the petitioner.
10. It is also a settled law the judgment of acquittal of
co-accused would not be admissible within the meaning of
Sections 40 to 44 of the Evidence Act and as such, the benefit
of acquittal cannot be extended to the co-accused. However,
the said proposition of law is applicable when the material
prosecution witnesses have not been examined.
11. The prosecution examined all 13 witnesses as
P.Ws1 to 13 and marked documents at Ex.P.1 to P.23. Though
the prosecution witnesses supported the case of the
prosecution, however the evidence tendered by them did not
establish the guilt of accused Nos.2 to 5 beyond reasonable
doubt.
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12. Having regard to the fact that all the prosecution
witnesses were examined and the prosecution having failed to
prove its case beyond reasonable doubt resulting in acquittal of
co-accused, it would be a futile exercise, if the petitioner is
subjected to trial since the probability of his conviction is
remote and bleak. So as to prevent the abuse of process of law
and to maintain parity, it would be appropriate to quash the
impugned proceedings. Accordingly, I pass the following:
ORDER
i. Writ Petition is allowed.
ii. The impugned proceedings in C.C.No.1153/2018 on
the file of JMFC-II Court, Mangalore stands quashed and the
petitioner/accused No.1 is acquitted of the offences alleged
against him in Crime No.06/2010 registered by the Mangaluru
Rural Police Station.
Sd/-
JUDGE
RKA
