Karnataka High Court
Peerpasha And Ors vs The State Of Karnataka And Anr on 29 October, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.200764 OF 2021
(482(CR.PC)/528(BNSS) )
BETWEEN
1 . PEERPASHA
S/O GOUSMODDIN JAGIRDAR,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE, R/O HAKEEM CHOWK,
VIJAYAPURA - 586 101.
2 . MURTUJSAB
S/O MAHEBOOB SAB JAMADAR
AGED ABOUT 63 YEARS,
OCC: BUSINESS, R/O KAMANKHAN BAZAR,
BADIKAMAN ROAD,
VIJAYAPURA - 586 101.
3 . ALLABAX
S/O SAIFANSAB MULLA,
AGED ABOUT 71 YEARS,
OCC: NIL, R/O J.M ROAD,
HAKEEM CHOWK, VIJAYAPURA - 586 101.
...PETITIONERS
(BY SRI. RAJA VENKATAPPA NAIK, ADVOCATE)
AND
1 . THE STATE OF KARNATAKA
THROUGH PUBLIC PROSECUTOR
DISTRICT AND SESSION COURT,
VIJAYAPURA - 586 101.
2
2 . ABDULRAHEMAN
S/O MOHAMMAD HANEEF,
AGED ABOUT 50 YEARS,
OCC; ADVOCATE, R/O KAVALAGI, TQ.
VIJAYAPURA - 586 101.
DIST. VIJAYAPUR.
...RESPONDENTS
(BY SRI. JAMADAR SHAHABUDDIN, HCGP FOR R1;
SRI. ABDUL RAHEMAN, PARTY-IN-
PERSON/R2)
THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO
ALLOW THE CRIMINAL PETITION SETTING ASIDE THE
IMPUGNED JUDGMENT AND ORDER PASSED BY LEARNED II
ADDL. SESSIONS JUDGE, VIJAYAPUR ALLOWING PARTLY
CRIMINAL REVISION PETITION NO.8/2019 DATED
25.09.2020 WHEREBY COGNIZANCE TAKEN AGAINST 1, 8
AND 9 FOR THE OFFENCE P/U/SEC. 465, 417, 474 OF IPC
IN RESPECT OF ACCUSED NO.1, 8, AND 9 IS ALLOWED
PARTLY AS PER THE ORDER OF TRIAL COURT IN ITS
C.C.NO.171/2006, AND COGNIZANCE TAKEN BY THE
LEARNED TRIAL COURT U/SEC.190(1)(A) OF CR.P.C. IN
RESPECT OF THE OFFENCE P/U/SEC.120(B) R/W SEC.34 OF
IPC IN ITS IMPUGNED ORDER DATED 27.12.2018 IN
C.C.NO.171/2006 AGIANST THE PETITIONER NO.2 AND
3/ACCUSED NOS. 8 AND 9 ORDER OF ISSUING SUMMONS
AGAINST THEM U/SEC.204 OF CR.P.C. IS SET ASIDE THE
CONFIRMING REMAINING PART AND PORTION OF THE
IMPUGNED ORDER DATED 27.12.2018 PASSED BY THE
LEARNED TRIAL COURT IN ITS C.C.NO.171/2006 TO BE
QUASHED EXERCISING INHERENT POWERS U/SEC.482 OF
CR.P.C.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18.09.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 18.09.2024
PRONOUNCED ON : 29.10.2024
CAV ORDER
This petition filed by the petitioner Nos.1 to 3 i.e.,
accused Nos.1, 8 and 9 under section 482 of Cr.P.C. for
quashing the criminal proceedings and order passed by
the II Additional Session Judge, Vijaypura, by allowing
criminal petition in part, in CRP.No.8/2019 dated
25.09.2020 and taking cognizance as against accused
Nos.1 and 8 (and also accused No.9 who is dead), as
per the order of Magistrate in CC.No.171/2006, for
having taken cognizance for the offences punishable
under section 120(B) r/w Sec.34 of IPC, vide order
27.12.2018 as against petitioners/accused Nos.1 and 8
and issuing process.
2. Heard the learned counsel appearing for the
petitioner, learned HCGP for the state and respondent
No.2 party in person.
3. The respondent No.2 filed the complaint
under Section 200 of Cr.P.C against 12 accused persons
including this petitioners for the offences punishable
under Sections 201, 302, 471, 120A, 120B, 167 r/w
149 of IPC, contending that, one Sahebjadi who was
elder sister of the mother of the complainant, was
resident of Kavalagi village, the complainant along with
his mother and Sahebjadi were residing together and
the said Sahebjadi had landed properties in various
survey numbers, in Sy.Nos.64 measuring 4 acres,
Sy.No.63/2 measuring 13 acres 6 guntas, Sy.No.71
measuring 21 acres 15 guntas and VPC No.4 in the
Kotyal village, there was civil litigation pending, hence
the said Sahebjadi residing at Vijaypur for 13 years.
She has contacted one Shivanagouda patil and he got
executed sale deed in respect of 20 acres of land in
Kotyal village from Sahebjadi under misrepresentation,
without any consideration. After death of Shivanagouda
his son Shrishail Patil continued his contact with
Sahebjadi and Sahebjadi residing in the house of
accused Nos.1 and 2 at Vijayapura. The said Shrishail
Patil and Nabisab started forcing the Sahebjadi to
execute the sale deed in respect of remaining property
without consideration but she has refused. In that
connection the accused Nos. 1 to 5 colluded with each
other and committed murder of Sahebjadi on
30.01.2004 and buried the body in the grave yard.
Even they have got created a gift deed of the said
properties of Sahebjadi in collusion with the accused
Nos.8 and 9 by forging signature and mutated the
name of the accused No.1 in collusion with revenue
officials. The complainant approached the police they
have not taken any action. Hence, he has constrained
to file private complaint.
4. After receipt of private complaint, the same
was registered as PCR.No.1/2004 and referred to the
police under Section 156(3) of Cr.P.C. for the offences
under Sections 465, 417, 474 of IPC and the police
have filed the charge sheet for the above said offences
against accused No.1 and dropped the charge sheet
against the accused Nos.2 to 12 including sections 302
& 201 of IPC.
5. After the filing of charge sheet the learned
Magistrate took cognizance in criminal case C.C.No.
171/2006 and process was issued, the accused No.1
appeared before the court. The complainant has filed
protest petition for dropping the charges of sections
302 & 201 of IPC and also taking cognizance for some
of the offences. The trial court allowed the complainant
to sworn statement and later passed the order by
taking cognizance against the accused Nos.2 and 3 by
acting under Section 319 of Cr.P.C. vide order dated
09.03.2016.
6. It is further alleged on the complainant that
the Trial court/Magistrate passed another order dated
27.12.2018 by dismissing the protest petition and
ordered for merging the protest petition into
CC.No.171/2006 by exercising power under Section
210(2) of Cr.P.C., against the said order. The accused
persons/accused Nos.1, 8 and 9 have filed revision
petition before the Session Judge, in Crl.R.P.No.8/2019
for taking cognizance on various grounds. And
subsequently the Session Judge allowed the petition in
part and set aside the order of issuing process under
Section 204 of Cr.P.C., as against accused Nos.8 and 9.
However the impugned order as against accused No.1
has been confirmed vide order dated 25.09.2020.
7. Being aggrieved with the order of taking
cognizance against accused No.1 confirmed by the
Session Judge in the revision petition, the petitioner
filed this petition before this court.
8. The counsel for the petitioner has contended
that, the mother of the respondent No.2 one Zeharabi
filed suit for partition and separate possession on
11.04.1997 in respect of land in Sy.No.64 measuring 4
acres in Kavalagi village, in Sy.No. 126, measuring 21
acres 38 guntas, in Sy.No.127, measuring 21 acres 30
guntas both in Kotyal village, in Sy.No. 63/2 measuring
13 acres 16 guntas, in Sy.No.71 measuring 21 acres 15
guntas. The suit was dismissed and the RA.No.16/1997
also dismissed. And after 14 years complainant who is
son of the Zeharabi converted the civil case into
criminal case, and he has filed complaint on 13.07.2004
and referred to the police and FIR was registered on
28.07.2004 in Crime No.117/2004. and the police have
filed charge sheet by dropping the names of accused
persons and there is no offence proved.
9. The further case of the petitioner is that the
Zeharabi filed RSA before the High Court in RSA
463/2004 which was dismissed. The civil suit filed by
her in OS.No.271/2005 for seeking declaration to
declare gift deed executed by Sahebjadi in favour of the
respondent No.2 is null and void and not binding. The
said Zeharabi filed a review petition in respect of RSA,
it is also dismissed. And subsequently, the respondent
No.2 said to be filed complaint to the Magistrate and
got referred to the police, where the police after
registering FIR, filed B report, the same was challenged
by the complainant and cognizance taken by the
Magistrate against accused No.1 for the offences under
Section 465, 417, 474. Subsequently on the protest
petition, Section 120B of IPC has been invoked by the
learned Magistrate against the accused No.1 and issued
summons, the accused Nos.1 and 3 who were already
set aside by the Session Judge but directing to continue
the case against accused No.1 is not correct. It is also
contended after the mother of the respondent No.1
suffered the decree before the Hon'ble Supreme Court
and thereafter once again the complainant filed this
petition to harass the accused persons and among
other grounds prayed for allowing petition.
10. The respondent party-in-person appeared
and objected the petition contending that, the accused
persons have committed murder of Sahebjadi for the
purpose of knocking of the property. The police filed the
charge sheet where the forgery was proved. There is
prima facie case placed on record for having committed
offence by accused No.1 forging the signature of the
deceased in the documents. It is further contended that
the protest petition filed by the respondent No.2 where
he is given evidence in support of protest petition.
There are some witnesses examined and matter is still
pending before magistrate court, therefore at this stage
petition cannot be allowed. The evidence is already
commenced, summons has been issued, PW.1 to P.W.3
already partly examined, therefore prayed for rejecting
the application.
11. Having heard the arguments, perused the
records which reveals it is not in dispute the mother of
the respondent No.2, Zeharabi filed a suit against the
Sahebjadi for partition in OS.No.103/1990, and the suit
came to be dismissed on 11.04.1997. Later Regular
appeal filed before the district court in RA 16/1997 and
the same was dismissed 30.01.2004. Subsequently, the
regular second appeal in RSA No.463/2004 was filed
which also came to be dismissed on 30.09.2004.
Thereafter, a review petition also filed in
RP.No.340/2005 which also came to be dismissed on
08.08.2007, thereafter the mother of the respondent
No.2 filed special leave petition before the Hon'ble
Supreme Court in SLP No.25584/2004 which also came
to be dismissed on 23.08.2012. Later a restoration
petition also filed which also came to be dismissed on
23.08.2013.
12. The learned counsel has contended that
once the mother of the respondent No.2 failed to get
the relief, in the civil dispute and after 13 years, the
complaint came to be filed by falsely implicating the
petitioner. On perusal of the records the respondent
No.2 filed the private complaint for the various offences
including sections 302, 201 of IPC, apart from forging
the gift deed in the name of the Sahebjadi etc., The
complaint came to be referred to the police under
Section 156(3) of Cr.P.C and police registered the FIR
for the offences under sections 201, 302, 417, 167,
120A & B of IPC. Subsequently, the police have filed
the charge sheet by differing 302 of IPC and charge
sheet came to be filed only for the offences under
Sections 465, 417, 474 of IPC against the accused
No.1. Thereafter the Trial court took the cognizance for
the above said offences against accused No.1. Later the
trial court took the cognizance against accused Nos.2
and 3 for 120B read with 34 of IPC along with the
accused No.1. Subsequently the Session Judge set
aside taking cognizance against accused nos.2 and 3
but upheld, the taking of cognizance against accused
No.1/present petitioner which is under challenge.
13. It is also admitted fact the petitioner
approached this court in Crl.P.No. 15863/2013, which
came to be dismissed on 11.07.2014. The petitioner
taken all the contention in this petition and co-ordinate
bench of this court dismissed the petition and observed
the said contention can be used as defence in the trial.
14. On careful reading of the documents and
trial court records which reveals that the trial court
after considering the records taken cognizance against
the petitioner for the offences punishable under
Sections 417, 465, 474 of IPC. It is case of the
respondent that petitioner have murdered deceased
Sahebjadi by creating forged gift deed etc., the gift
deed and the documents already sent to FSL. The FSL
report received which confirms forgery. The trial court
after framing charge already recorded evidence of 3
witnesses PW.1 to 3 and in view of the stay granted by
this court evidence is not proceeded by the prosecution.
15. Once the evidence of the prosecution is
already commenced, some of the witnesses examined,
documents marked, instead of cross examining them
petitioner filed petition before this court,. and once co-
ordinate bench has already rejected contention of the
petitioner and dismissed the petition filed by this
petitioner in Crl.P.No.15863/2013 on 11.07.2014, once
again this court cannot interfere by the order passed by
this court. If at all any defence available by the
petitioner and the contentions are to be made in the
trial, therefore question of quashing criminal proceeding
against petitioner does not arises. After dismissal of
the petition by this court, the petitioner moved the
discharge application and thereafter revision petition
and filed the present petition which is nothing but
second round litigation for the same contention taken
by the petitioner. The sessions judge rightly allowed
the revision petition in part taking cognizance against
accused Nos.2 and 3 quashed and cognizance against
petitioner under Section 120-B read with 34 of IPC has
been quashed. Once the Sessions Judge, allowed the
revision petition in part and summons was issued only
against accused Nos.8 and 9 for 120-B of IPC which
was already set-aside by the Sessions Judge, therefore,
once again this court cannot quash the Criminal
proceedings against accused No.8. Such being the
case, there is no reason for this court to interfere in the
order passed by the Session Judge against accused
No.1 which is a recent judgment. Hence, the petition is
devoid of merits and is liable to be dismissed.
Accordingly, petition filed by the
petitioner/accused No.1 filed under Section 482 of
Cr.P.C., is hereby dismissed.
As regards to the accused No.8, the Sessions
Judge already set aside the order of summoning the
accused No.8 in Crl.R.P.No.8/2019 dated 25.09.2020.
Therefore, the petition of accused No.8 does not
survive for consideration. Hence, it is hereby
dismissed.
Office is directed to transmit the trial court
records to the Kalburagi bench and in turn the registry
of Kalburagi Bench is directed to send the trial court
records to the concerned court along with the copy of
this order to proceed in accordance with the law.
Sd/-
(K.NATARAJAN)
JUDGE
SRK
CT:SK
