Karnataka High Court
Ashwini N vs State Of Karnataka on 5 June, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 8364 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 8364 OF 2023 (482-)
BETWEEN:
ASHWINI N
D/O HARISHANKAR
AGED ABOUT 29 YEARS,
R/AT NO 50/7(3),
SAMARPANA RESIDENCY 2,
OPP VIVEK ENGINEERING WORKS,
SHANTINAGARA, MANGALURU - 565 015.
...PETITIONER
(BY SRI. B LETHIF, ADVOCATE)
AND:
1. STATE OF KARNATAKA
Digitally signed BY BYADARAHALLI POLICE STATION,
by NAGAVENI REP. BY SPP, HIGH COURT BUILDING,
Location: HIGH BANGALORE - 560 001.
COURT OF
KARNATAKA
2. THE POLICE INSPECTOR
W/N WING, CCB N T PETE
BENGALURU CITY - 560 001.
...RESPONDENTS
(BY SRI. THEJESH P, HCGP)
THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH
THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER IN
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CRL.P No. 8364 of 2023
SPL.C.NO.1876/2021 ON THE FILE OF XXXIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE
(NDPS), BENGALURU FOR THE OFFENCES PUNISHBALE U/S
8(c), 21(c), 22(c), 27(a), 20(ii) (B), 23(c) OF N.D.P.S. ACT OF
BYADARAHALLI POLICE STATION, BENGALURU CITY WHICH IS
PRODUCED AT ANNEXURE-A.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is accused No.7 before this Court calling in
question continuation of proceedings in Spl.C.No.1876/2021,
pending before the XXXIII Additional City Civil and Special
Judge, Bengaluru, for the offences punishable under Sections
8(c), 21(c), 22(c), 27(a), 20(ii)(B) and 23(c) of the Narcotic
Drugs and Psychotropic Substances Act, 1985.
2. Heard Sri B. Lethif, learned counsel for petitioner and
Sri Thejesh P., learned High Court Government Pleader for the
respondents.
3. The petitioner along with others get embroiled in a
crime in Crime No.224/2021 for the aforesaid offences. The
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special Court in Special Case No.5/2023 in terms of its
judgment dated 28.04.2023, acquits accused Nos.1 to 5, at
which point in time, the petitioner - accused No.7 was not
available for trial as he was allegedly absconding. As he was
absconding, a split charge sheet was drawn against other
accused who were absconding. Despite the acquittal of
accused Nos.1 to 5 in the aforesaid special case No.5/2023, the
trial continues against the petitioner, is what has driven him to
this Court in the subject petition.
4. Learned counsel for the petitioner submits that the
special Court in Spl.C.No.5/2023 has rendered such reasons to
acquit accused Nos.1 to 5, which would enure to the benefit of
the petitioner and the findings is in compliance of all the
mandatory requirements and rigor of the statute. Therefore,
he submits that this petitioner would also be acquitted on the
findings rendered by the special Court. He seeks for allowing
the petition.
5. Learned High Court Government Pleader would submit
that the petitioner was absconding during trial and therefore,
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the separate charge sheet is drawn. The petitioner has to
come out clean in the manner in which accused Nos.1 to 5 have
undergone the trial. He would seek for dismissal of the
petition.
6. I have given my anxious consideration to the
submissions made by the learned counsel for the parties and
have perused the material on record.
7. Eight accused persons were tried in Spl.C.No.5/2023 is
a matter of record. The petitioner - accused No.7 was
absconding at the relevant point in time, due to which the
concerned Court has drawn a separate charge sheet i.e., split
charge sheet against the petitioner. The concerned Court tried
the other accused and acquitted them of the offences in terms
of its judgment dated 28.04.2023. The reason for acquittal can
be gathered from paragraph Nos.68 to 73 of the order, which
reads as follows:
".... ..... ....
68. So, from the overall evidence of P.W.1, it is
very much clear that though he received the information
directly from the informant, who happens to be the
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complainant, P.W.1 being the office in-charge of the
police station, did not proceed to record the information
into writing and he has not registered any case and has
not submitted any FIR. So, there is utter violation of the
provisions of Section 154 of Cr.P.C. by P.W.1. In view of
the admissions given by P.W.1 that he has no records to
show that the informant came to the police station to give
information about the storage of Narcotic Drugs at room
No.11 of Prasiddhi PG, a doubt arises here with regard to
the very information collected by P.W.1 itself.
69. In this regard, it was much argued on behalf of
the accused that as per the judgment rendered by the
Hon'ble Supreme Court in the case of Lalita Kumari Vs.
Government of U.P., registration of FIR is mandatory.
under Section 154 of Cr.P.C., if the information discloses
commission of cognizable offences and no preliminary
enquiry is permissible in such a situation. A police officer
cannot avoid his duty of registering the offence if
cognizable offices is disclosed. If the police officer who did
not register the FIR. if information is received by him
discloses cognizable offence, an action can be taken
against such erring officers. So, it is the main argument of
the accused that registration of the complaint is delayed
in this case as no FIR was registered immediately on
22.06.2021 at 1.00 p.m., when P.W.1 received the
information about the cognizable offences. It is also much
argued that P.W.1 himself has deposed that he has
received the credible information about storage of
Narcotic Drugs at room No.11 of Prasiddhi PG and as
such, even there was no necessity on the part of P.W.1 to
make enquiry with regard to the truthfulness of the
information given by the informant. So, registration of the
FIR immediately after receiving the information with
regard to cognizable offence is mandatory in this case.
However, the records show that the FIR is came to be
registered only at 8.15 p.m. on 22.06.2021 and there is
delay of about 8 hours 15 minutes in registering the FIR.
This delay is not properly explained and as such, there is
possibility of creating things in the FIR, to which the
complainant P.W.1 himself is a party to the investigation,
cannot be ruled out.
70. In this case the accused have taken a specific
defence that the accused were arrested 2-3 days earlier
to 22.06.2021. Accused No.1 and 5 suggested that they
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were arrested on 18.06.2021 at 8.27 p.m. from their
residence at Prasar Bharathi Layout, Bengaluru and were
taken to CCB office. The other accused have made
suggestions that they were apprehended by CCB police on
18.06.2021 from VSR Residency, HSR layout and were
detained at CCB police station. The accused have also
produced internet downloaded copies of location of their
mobile phones between 17.06.2021 and 22.06.2021 and
made suggestions to P.W.1 to P.W.3 and P.W.5 that
location of the mobile phones of the accused are showing
as CCB for all the 3 days and their mobile phones have
never shown the place of Prasiddhi PG situated at Najaiah
layout, East-West college, Bharathnagar.
71. No doubt, P.W.1 to P.W.3 and P.W.5 have
denied the suggestions. But these documents are not
produced through any service provider of the mobile
phones of the accused persons and the contents of the
documents Ex.D.1 to Ex.D.3 and Ex.D.5 to Ex.D.7 are not
proved before the Court. Even the document produced by
the accused i.e. seizure mahazar drawn at VSR Residency
on 21.06.2021 did not disclose the names of accused
No.1 to 5 for having been arrested or apprehended by
CCB police. On the other hand a criminal case is
registered against one Gurutej Singh and Mohammed
Idris, who are not accused in this case. So, the defence
taken by the accused is not established before the Court.
72. In order to rebut this piece of argument, it was
much argued on behalf of the accused that the question
of giving rebuttal evidence will arise only if the
prosecution has proved its case beyond all reasonable
doubt. Unless and until the prosecution initially
establishes its case beyond all reasonable doubt, the
accused are always entitled to get benefit of doubts and
the question of leading any rebuttal evidence will not arise
for consideration. It was also much argued that the
accused has got a right of silence, which is a
Constitutional right and the same could be applied to the
cases triable under the NDPS Act also.
73. As observed above, there are material doubts
with regard to the very information collected by P.W.1
with regard to (a) storage of Narcotic Drugs at room
No.11 of Prasiddhi PG; (b) writing the information in the
prescribed register maintained in the police station; (c) in
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submitting a copy of the said writing containing the
information to the higher authorities; (d) in seeking
permission for conducting raid, search and seizure; (e) in
securing permission from the higher authorities to
conduct raid, search and seizure etc., (f) in conducting
the personal search of the accused persons as under
Section 50 of the NDPS Act. So all these material
contradictions and doubts will certainly go to establish
that the prosecution has failed to prove its case beyond
reasonable doubt against the accused persons and as
such, the claim of the prosecution that the accused did
not produce any evidence in rebuttal holds no water at
this stage."
In the light of the aforesaid findings, the same would
enure to the benefit of the petitioner and the continuation of
the proceedings against the petitioner is completely contrary to
the law. It would be an exercise in futility to permit further
trial, which would be of no utility and be a waste of judicial
time.
8. The view of mine, in this regard, is fortified by the
judgment of this Court dated 02.09.2022 passed in
Crl.P.No.7720/2022, which reads as follows:
"4. The learned Sessions Judge, by his order dated
01.12.2021, acquits accused Nos.1 to 11, 14, 16 to 18 and 21
in S.C.No.103/2018. At the relevant point in time, when the
trial was on, the petitioner was not available for trial, as he
was allegedly absconding and a split charge sheet was issued
against the petitioner in S.C.No.87/2019 in terms of an order
of the learned Sessions Judge dated 10.06.2019. The
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continuation of proceedings in S.C.No.87/2019 is what drives
the petitioner to this Court in the subject petition.
5. Learned counsel, Sri. Lethif B., appearing for the
petitioner would contend that the allegations are the ones
punishable under Sections 143, 147, 148, 448, 323, 324, 427,
395, 149 of the IPC. The said allegation is necessarily to be
common against all the accused and it is infact common
against all the accused. The acquittal order passed by the
concerned Court is on the basis of the complainant himself
turning hostile. In the teeth of the fact that the complainant
himself turned hostile, the Court holds that the prosecution has
failed to prove the guilt beyond all reasonable doubt and
therefore, the petitioner is entitled to be the same order as is
passed by the concerned Court acquitting the aforesaid
accused.
6. Learned HCGP would however refute the
submission to contend that the petitioner would escape trial,
should necessarily face trial and considered for acquittal by the
concerned Court and this Court should not interfere at this
juncture, as a person, who has escaped trial should not be
shown any indulgence under section 482 of Cr.P.C .
7. I have given my anxious consideration to the
respective submissions made by the learned counsel and have
perused the material on record.
8. The afore-narrated facts are not in dispute. The
allegation against the petitioner are the ones punishable under
Sections 143, 147, 148, 448, 323, 324, 427, 395, 149 of the
IPC. The allegation was against 22 accused and the offences
alleged were common, the allegations are also common. The
concerned Court, by its order dated 01.12.2021, acquits
accused Nos.1, to 11, 14, 16 to 18 and 21 by rendering the
following reason:
REASONS
9. Poin"t No.1 to 5: The P.W.1 has
stated that on 15.09.2013 at about 8.30 p.m. when
P.W.4 was insider the Bar, somebody picked up
quarrel with him and those persons damaged the
Bar and hence, he sustained injuries. He has also
stated that, the P.W.2 also sustained injuries in the
incident and both of them taken treatment in the
Wenlock hospital. The P.W.2, P.W.4 and Babanna
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sustained injuries and therefore, he filed the first
information before the Police. He has deposed that
the police came to the Bar and drawn the
panchanama in Ex.P.2. The P.W.2 has deposed that
when he was in the Bar of P.W.1 many people
assembled and one of them thrown stone towards
him and therefore, himself and P.W.4 sustained
injuries and took treatment in the hospital.
10. P.W.3 has deposed that on 15.09.2013
at about 8.30 p.m. the P.W.4 was inside the Bar,
about 25 persons came to the Bar and there was
quarrel between P.W.4 and those 25 persons. He
has deposed that such 25 persons damaged the Bar
and he took treatment in Wenlock hospital for the
injuries sustained in the incident. The P.W.1 to 3
have not stated the name of any of the accused of
this case and even not identified the accused. The
prosecution treated these witnesses hostile and
cross examined. The P.W.1 to 3 have totally denied
the allegation that the accused of this case have
quarrelled with P.W.4, assaulted P.W.7 to 7,
damaged the Bar and committed dacoity of
Rs.2,000/- from the Bar.
11. The P.W.4 to 7 have totally denied the
incident itself. The P.W.8 and P.W.9 have deposed
that they have not witnesses the incident. The
P.W.4 to 9 have been cross examined by the
prosecution and even in the cross-examination the
P.W.4 to 9 denied the allegation made by the
prosecution. Therefore, there is no evidence against
the accused that they have formed unlawful
assembly, committed criminal trespass in the Bar of
P.W.1, voluntarily caused hurt to P.W.1 to 7 and
committed dacoity of Rs.2,000/- from the Bar of
P.W.1. Hence, the accused cannot be convicted for
the offences alleged against them because of
insufficient evidence. Accordingly, I answer these
points in the Negative and proceed to pass the
following:
ORDER
Acting under Section 232 of Code of Criminal
Procedure the accused No.1 to 11, 14, 16 to 18 and
21 are acquitted for the offences punishable under
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Section 143, 147, 148, 448, 323, 324, 395, 427
r/w 149 of Indian Penal Code.
Their bal bond stands cancelled.
Office is directed to retain the material
objects as they are required in split up cases."
9. The reason for acquitting the other accused as
afore-quoted is the fact that the complainant himself had
turned hostile and other witnesses had not supported the
charge sheet. If the complainant had turned hostile and it
resulting in acquittal of the aforesaid accused, it cannot but be
said that the same would be applicable to the petitioner as
well, notwithstanding the fact that he was not available for
trial. It is not the case of sending the petitioner for trial for the
very same offences and result being the same as is ordered on
01.12.2021 in S.C.No.103/2018. It would be an exercise in
futility to permit further trial, which would be of no utility and
be a waste of judicial time.
10. 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:
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"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, 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
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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."
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
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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 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
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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 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
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(i) Criminal petition is hereby allowed.
(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.
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."
In the light of the allegations against the petitioner and
other accused being similar; accused Nos.1 to 5 having been
acquitted, and the afore-extracted judgment of this Court, the
petitioner is entitled to succeed in the subject petition for the
very same reasons rendered by this Court (supra).
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9. For the aforesaid reasons, the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The proceedings against the petitioner/accused
No.7 in Spl.C.No.1876/2021 pending before the
XXXIII Additional City Civil and Sessions Judge and
Special Judge (NDPS), Bengaluru, stands quashed.
Sd/-
JUDGE
NVJ
