Karnataka High Court

Abdul Riyaz vs State By K S Layout Police Station on 30 July, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                        CRL.P No. 6902 of 2024




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 30TH DAY OF JULY, 2024

                                               BEFORE
                            THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                               CRIMINAL PETITION NO. 6902 OF 2024
                   BETWEEN:

                   ABDUL RIYAZ,
                   S/O IBRAHIM BYARI,
                   AGED ABOUT 35 YEARS,
                   R/AT NO.2/376, MEGINAPETE,
                   BANTWALA TALUK, D.K. - 574 243.
                                                                 ...PETITIONER
                   (BY SRI. ABDUL ANSAR P., ADVOCATE)

                   AND:

                   STATE BY K.S.LAYOUT POLICE STATION,
                   BENGALURU.
                   REPRESENTED BY
                   STATE PUBLIC PROSECUTOR,
Digitally signed   HIGH COURT OF KARNATAKA
by NAGAVENI
Location: HIGH     BUILDING - 01.
COURT OF
KARNATAKA                                                       ...RESPONDENT
                   (BY SRI.THEJESH P., HCGP)

                          THIS CRL.P. IS FILED U/S.482 OF CR.P.C., PRAYING TO
                   QUASH     THE   CRIMINAL     PROCEEDINGS    AGAINST    THE
                   PETITIONER IN CC.NO.1520/2020 IS PENDING ON THE FILE OF
                   HONBLE 30th ACMM, BANGALORE, FOR THE OFFENCES P/U/S
                   399, 402 OF IPC.
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                                                NC: 2024:KHC:29968
                                            CRL.P No. 6902 of 2024




     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,

ORDER WAS MADE THEREIN AS UNDER:

CORAM:    HON'BLE MR JUSTICE M.NAGAPRASANNA


                          ORAL ORDER

The petitioner - accused No.2 is before this Court calling

in question the proceedings in C.C.No.1520/2020 registered for

offences punishable under Sections 399 and 402 of the IPC.

2. Heard Sri. Abdul Ansar P., learned counsel

appearing for the petitioner, Sri. Thejesh P., learned HCGP

appearing for the respondent and have perused the material on

record.

3. The petitioner along with others gets embroiled in

Crime for which it being registered on 31.03.2017 for offences

punishable under Sections 399 and 402 of the IPC. The

petitioner at the relevant point in time was not available for

trial and therefore, a split charge sheet is drawn against him.

The concerned Court in terms of its judgment dated 12.01.2023

acquits accused Nos.1, 3 and 4. The only accused remaining in

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the case at hand is accused No.2, the petitioner. The petitioner

is accused No.2. The order passed by the concerned Court to

acquit accused Nos.1, 3 and 4 is as follows:

"16. On perusal of the records it is noticed that the prosecution to prove the guilt of the accused have examined PW1 to PW3. CW1 is examined as PW1, CW6 is examined as PW2 and CW10 is examined as PW3. On perusał of the entire records, the prosecution have examined PW1 to PW3 and marked Ex.P1 to Ex.P3 and MO. 1 to MO.8 in support of their case. PW1 to PW3 are the police officials and PW1 is the complainant and PW2 is the police official who had accompanied in the raid and he has lead the evidence inconsistency with PW1 and PW3 is the person who has registered the case and has made investigation, recording the statement of witnesses and has filed the charge sheet. The prosecution except examining the said witness no other independent witnesses have been examined who had accompanied in the raid and was present in the raid and also in their presence the police have apprehended and seized MO.1 to MO.8. CW2 and CW3 are the panchas to the said incident who had accompanied PW1 and PW2 in the raid and in their presence Ex.P2- mahazar was drawn and the articles MO.1 to MO.8 were seized from the accused persons in their presence. CW2 and CW3 have not been secured by the prosecution to lead the evidence, except the police officials no other independent witness have been examined by the prosecution to prove the guilt of the accused. The prosecution have not secured the presence of CW2 and CW3, in spite of issuance of warrant and having made several efforts to secure CW2 and CW3. CW2 and CW3 are the crucial witnesses to the said incident as they are panchas and they being the independent witnesses in their presence the police have conducted the raid on the accused persons and they have seized the MO.1 to MO.8 in their presence. The prosecution has failed to examine CW2 and CW3 having secured before this court. The Hon'ble Supreme Court in its decision reported in (2013) 13 SCC 1 in the case of Yakub Abdul Razak Memon Vs. State of Maharashtra enumerated conditions for valid panchanama. It is held

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that panchanama is a document having legal bearings which records evidence and findings that an officer makes at the scene of an offence. However, it is not only the recordings of the scene of crime but also of anywhere else which may be related to the crime/offence and from where incriminating evidence is likely to be collected. The documents so prepared needs to be signed by the investigating officer who prepares the same and atleast by two independent and impartial witnesses called 'panchas' as also by the concerned party. The witnesses are required to be not only impartial but also 'respectable'. Respectable here would mean a person who is not dis-reputed. One should also check if the witnesses are in their senses at the time of panchanama proceedings. The primary intention behind the panchanama is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search, with or without warrant and also to ensure that anything incriminating which may be said to have been found in the premises or location searched was really found there and was not introduced or planted by the officers of the search party. The legislative intent is to control and to check these mal practices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of articles.

17. On any deviation from the procedure, the entire panchanama cannot be discarded and the proceedings are not vitiated. If any deviation from the procedure occurs due to a practical impossibility, then that should be recorded by the IO in his file so as to enable him who answered during the time of his examination as a witness in the court of law.

18. In this case, panch witnesses not appeared and deposed before the court with regard to panchanama. The procedure enumerated by the Hon'ble Supreme Court has not been followed by the Investigating Officer while drawing the panchanama. In a case under section 399 and 402 of Indian Penal Code, the evidence of panch witnesses and panchanama plays pivotal role. There is no evidence of independent witnesses to prove the drawing of panchanama in this case. The prosecution has to prove the guilt of the accused beyond reasonable doubt though the prosecution has lead the evidence of

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PW1 to PW3 the police officials. The said evidence of PW1 to PW3 have not been corroborated by the evidence of independent witnesses who are CW2 and CW3. The prosecution having failed to examine CW2 and CW3 the independent witnesses and the evidence of PW1 to PW3 is not sufficient to prove the guilt of the accused persons beyond reasonable doubt as there is no evidence against the accused persons and the prosecution having failed to prove the guilt of the accused persons as such the accused No.1, 3 and 4 are entitled for benefit of doubt. Hence, the prosecution has failed to prove the alleged offences against the accused No. 1, 3 and 4, accordingly, I answered points No. 1 and 2 in the 'Negative'.

19. Point No.3:- For the above reasons, I proceed to pass the following:

ORDER

Acting under Section 235(1) of Cr.P.C.. accused No.1, 3 and 4 are acquitted for the offences punishable under Sections 399 and 402 of IPC.

The bail bonds and surety bonds of accused No.1, 3 and

4 shall stands cancelled.

Note:- Office is hereby directed to preserve entire case file along with MO.1 to MO.8. in connection with the split up case registered against absconding accused.

The personal bond and surety bond of the accused shall remain in force for a period of six months as per Section 437(A) of Cr.P.C."

4. The offences are the ones punishable under

Sections 399 and 402 of the IPC. If the prosecution has failed

in production of material incriminating to link the offences to

accused Nos.1, 3 and 4, the same would enure to the benefit to

the petitioner, accused No.2 as well.

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5. Permitting further trial against this petitioner would

only be a waste of judicial time, which is too precious today for

permitting further trial to be conducted in the case of the

petitioner only to be acquitted.

6. 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

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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, 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

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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."

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.

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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 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

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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 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.

18. In that view of the matter, present proceedings initiated against petitioner is liable to be quashed.

Hence, I proceed to pass the following:

ORDER

(i) Criminal petition is hereby allowed.

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(ii) Proceedings in C.C.No.1170/2007 pending on the file of Addl. Civil Judge & JMFC, Bantwal, in Cr.No.130/2006 registered by Bantwal Rural Police Station, is hereby quashed insofar petitioner is concerned.

In view of criminal petition having been disposed of on merits, I.A.No.1/2017 for stay does not survive for consideration and same stands rejected."

The Co-ordinate Bench was considering a case where the

co-accused who had escaped trial had not surrendered or was

not arrested by the police.

7. In the light of there being no evidence against any

of the accused and the split up charge against the petitioner

being tried now before the learned Sessions Judge would

become an exercise in futility. In the teeth of there being no

evidence or a specific charge against this petitioner, that was

not charged against others, I deem it appropriate to obliterate

the proceedings against the petitioner.

8. For the aforesaid reasons, I pass the following: