SADIQ KHAN v. STATE OF KARNATAKA

Judgment

2. SHAFIULLA @ JAVID S/O. FIAZ ULLA AGED ABOUT 25 YEARS R/AT PATANWADI SURESH STREET 4TH CROSS, SYEDWADI CHANNAPATNA TOWN (BY SRI. MOHAMMED OWAIS SULTAN, ADV.) AND: STATE OF KARNATAKA BY IJOOR POLICE RAMANAGARAM DIST - 562 159 REP. BY S.P.P. HIGH COURT BANGALORE (BY SRI.VINAY MAHADEVAIAH, HCGP) Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA …PETITIONERS …RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 28.11.2017 PASSED BY THE 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, IN CRL.A.NO.11/2013 AND JUDGMENT AND ORDER DATED 16.03.2013 PASSED BY ADDITIONAL CIVIL - 2 - NC: 2024:KHC:50593 CRL.RP No. 91 of 2018 JUDGE AND JMFC, RAMANAGARA IN C.C.NO.123/2011 BY ALLOWING THIS CRIMINAL REVISION PETITION. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL ORDER Heard Sri Mohammed Owais Sultan, learned counsel for the revision petitioners and Vinay Mahadevaiah, learned High Court Government Pleader respondent.

2. Revision Petitioners are accused Nos.1 and 3 namely, Sadiq Khan and Shafulla, who suffered an order of conviction in C.C.No.123/2011 for the offences punishable under Sections 457 and 380 of IPC and ordered to undergo simple imprisonment for one year for the offence punishable under Section 457 of IPC with a fine amount of Rs.1,000/- with a default sentence of three months and one year simple imprisonment for the offence punishable under Section 380 of IPC with a fine amount of Rs.1,000/- with a default sentence of three months, confirmed in Crl.A.No.11/2013. - 3 - NC: 2024:KHC:50593 CRL.RP No. 91 of 2018

3. The facts in brief which are utmost necessary for disposal of the revision petition are as under:

4. A complaint came to be lodged with Ijoor Police, Ramanagar District contending that on 27.12.2009 during the night hours, within the limits of Ijoor Police Station, the present revision petitioners along with three more accused persons broke open the door-lock of the backdoor of CW.1 Hussain Sab, who was residing in K.H.B. Colony of Ijoor, Ramanagar, entered into the house and committed theft of gold and silver articles which were valued in a sum of Rs.1,58,700/-.

5. The police have registered the case and investigated the matter inter alia arrested the accused persons, and based on the voluntary statement given by them, recovered the stolen articles and filed the charge sheet. Presence of the accused persons were secured and charges were framed. Accused persons pleaded not guilty therefore, trial was held. - 4 - NC: 2024:KHC:50593 CRL.RP No. 91 of 2018

6. In order to bring home the guilt of the accused, six witnesses were examined on behalf of the prosecution as PW.1 to 6 and 6 documents were placed on record as Exs.P1 to P6 besides marking 8 material objects as MO.1 to 8 comprising of two necklaces, two pair hear studs, two finger rings, small golden chain and one pair of silver leg chain.

7. Detailed cross-examination of the complainant, recovery mahazar witnesses and spot mahazar witnesses did not yield any positive materials so as to disbelieve the version of the prosecution witnesses. There was no explanation whatsoever forthcoming with regard to the recovery of MO.1 to 8 from the custody of the accused persons.

8. In the accused statement also there is no explanation nor any written submissions placed on record on behalf of the accused. There was no defence evidence either. - 5 - NC: 2024:KHC:50593 CRL.RP No. 91 of 2018

9. One witness was examined as Court witness as CW.1 and three mahazars were marked as Exs.C1 to C3.

10. On conclusion of the recording of evidence and recording the accused statement, learned trial Magistrate heard the parties and convicted accused No.1 to 5 and sentenced them as referred to supra.

11. Among them, accused No.5 had undergone custody period of two years three months and two days and therefore, he was set at free.

12. Accused No.1 and 3 filed common appeal in Crl.A.No.12/2013 challenging the order of conviction and sentence whereas accused No.2 and 4 filed separate appeals in Crl.A.Nos.11/2013 and 13/2013.

13. Learned Judge in the First Appellate Court heard the appeals in common and by the judgment dated 28th November 2017 dismissed all the appeals and confirmed the order of conviction and sentence. - 6 - NC: 2024:KHC:50593 CRL.RP No. 91 of 2018

14. Being further aggrieved by the order of trial Magistrate confirmed by the First Appellate Court, accused Nos.1 and 3 are before this Court.

15. Learned counsel the petitioners Sri Mohammed Owais Sultan reiterating the grounds urged in the revision petition vehemently contended that the alleged recovery is not from the present revision petitioners and very fact that the trial Court has undertaken the responsibility to examine Kempa Puttaiah, who was the Investigating Officer in some other case, wherein the present petitioners have been arrested, and their statements and the mahazar drawn therein has been marked as Exs.C1 to C3 has resulted in miscarriage of justice as the prosecution did not cite CW.1 as witness which is inherent lacuna which stood vitiate the entire trial and sought for allowing the revision petition.

16. Alternatively, Sri Mohammed Owais Sultan has contended that in the event this Court upholding the order of conviction, taking note of the fact that no other criminal - 7 - NC: 2024:KHC:50593 CRL.RP No. 91 of 2018 cases are pending against the accused, custody period already undergone by them may be treated as period of imprisonment by enhancing the fine amount reasonably and at present, revision petitioners are leading happy marital life and as they are respectable citizens in the society.

17. Per contra, Sri Vinay Mahadevaiah learned HCGP opposes the revision grounds by contending that accused persons are admittedly having criminal antecedents as they were caught by CW.1 in respect of some other case and they have suffered an order of conviction and therefore no leniency can be shown to them and sought for dismissal of revision petition in toto.

18. Having heard the parties in detail, this Court perused the materials on record meticulously.

19. On such perusal of material on record, admittedly CW.1 apprehended the present petitioners along with the other accused persons in respect of some other crime as could be seen from Exs.C1 to C3. During the course of - 8 - NC: 2024:KHC:50593 CRL.RP No. 91 of 2018 such investigation, he also comes to know about the theft that has been committed in the house of PW.1.

20. Pursuant to such voluntary disclosure, Mo.1 to 8 have been recovered. No doubt the prosecution did not cite CW.1 as a witness in the charge sheet. At the most, this could only be a technical error same can be classified as irregular, which stood vitiate the trial as is found in Section 460 of Cr.PC and not an irregularity which stood vitiate the proceedings as is found in Section 461 of Cr.PC.

21. Therefore, the contentions urged on behalf of revision petitioners that the trial stood vitiated cannot be countenanced in law. Having said thus, it is also noticed that since there was no explanation whatsoever forthcoming from the revision petitioners and recovery of the stolen articles is from the custody of the accused persons based on voluntary statement, the offence under Section 380 of IPC stood established by the prosecution, which requires no interference by this Court, that too in - 9 - NC: 2024:KHC:50593 CRL.RP No. 91 of 2018 the revisional jurisdiction. Accordingly, conviction order of the revision petitioners needs to be maintained.

22. Having thus, learned High Court Government Pleader is unable to point out what are the pending criminal cases or the conviction orders that has been suffered by the revision petitioners. Under such circumstances, taking note of the fact that the accused persons are in custody during the time of trial, period of custody undergone by them is to be treated as period of imprisonment by enhancing the fine amount in a sum of Rs.25,000/- each which would meet the ends of justice in the case on hand.

23. Accordingly, following Order is passed: ORDER (i) Criminal Revision Petition is allowed in part. (ii) While maintaining the order of conviction passed against the revision petitioners - accused No.1 and 3 by the trial Magistrate, confirmed by the First Appellate Court for the offences punishable under Sections 457 - 10 - NC: 2024:KHC:50593 CRL.RP No. 91 of 2018 and 380 of IPC, custody period already undergone by them is treated as period of imprisonment by enhancing amount in a sum of Rs.25,000/- each which shall be payable on or before 31.12.2024, failing which the order of imprisonment ordered learned Magistrate confirmed by the first Appellate Court stands restored automatically. (iii) If the fine amount is deposited, a sum of Rs.40,000/- is ordered to be paid as compensation to PW.1 and if he is not alive, his legal representatives under due identification by the trial Magistrate. (iv) Office is directed to return the Trial Court Records with a copy of this Order, forthwith. Sd/- (V SRISHANANDA) JUDGE MKM List No.: 1 Sl No.: 54