Criminal Petition No. 13803 of 2024 · The High Court
Case Details
- 1 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR CRIMINAL PETITION NO.13803 OF 2024 (482(Cr.PC) / 528(BNSS) BETWEEN: ANSER PASHA @ ANSAR PASHA S/O LATE SYED RAHIM AGED ABOUT 56 YEARS R/AT 575 WARD NO.10 7TH CROSS, TANJAVOOR MOHALLA KUNIGAL TOWN TUMAKURU DISTRICT – 572 130. (BY SRI. A MAHESH CHOWDHARY, ADVOCATE) AND: …PETITIONER STATE OF KARNATAKA KUNIGAL POLICE STATION, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE – 560 001. (BY SRI. THEJESH.P, HCGP) …RESPONDENT THIS CRL.P IS FILED U/S 482 CR.P.C (U/S 528 BNSS) PRAYING TO QUASH THE CHARGE SHEET IN CC.NO.30/2003 RE-NUMBERED AS CC.NO.1793/2024 (CR.NO.363/1994) FOR THE OFFENCES VIDE ANNEXURE-A AND ALL CONSEQUENT PROCEEDINGS AS BEING ERRONEOUS, ILLEGAL AND BAD IN THE EYES OF LAW. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, petitioner – accused seeks quashing of the proceedings in C.C.No.1793/2024 (Old C.C.No.30/2003) arising out of Crime No.363/1994 registered by the respondent – police, pending on the file of Senior Civil Judge and JMFC, Kunigal, for offence punishable under Section 307 of IPC. 2. Heard learned counsel for the petitioner and learned HCGP for respondent and perused the material on record. 3. A perusal of the material on record will indicate that the petitioner – Anser Pasha was arraigned as accused No.3 in C.C.No.30/2003 along with three others, who were arraigned as accused Nos.1, 2 and 4 in the charge sheet in C.C.No.77/1996
Facts
pursuant to FIR in Crime No.363/1994. The offence alleged against the petitioner and other accused are under Section 307 of IPC. 4. In this context, learned counsel for the petitioner invited my attention to the judgment dated 22.07.2005 passed in S.C.No.30/2003 as against accused Nos.1, 2 and 4 in order to point out that in view of the acquittal of the aforesaid accused, the petitioner who is accused No.3 in C.C.No.77/1996 prior to same - 3 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 being split up in C.C.No.30/2003 (renumbered as C.C.No.1793/2024) would be entitled to seek parity as held by this Court in the case of Mohan Vs. State of Karnataka and Another - Crl.P.No.5376/2024 dated 19.09.2024, in which it was held that acquittal of co-accused by the Sessions Court would enure to the benefit of the petitioner as under: “The petitioner - accused No.6 is knocking at the
Legal Reasoning
doors of this Court in the subject petition calling in question a split charge sheet drawn against him in S.C.No.96/2022 registered for offences punishable under Sections 399 and 402 of the IPC. 2. Heard Sri. Lakshmikanth K., learned counsel appearing for the petitioner and Smt. Sowmya R., learned HCGP appearing for the respondents. 3. Facts in brief, germane, are as follows: On the night of 14.02.2015, an alleged incident leads the petitioner along with others for registration of a crime for offences punishable under Sections 399 and 402 of the IPC in Crime No.306/2015. The petitioner is arrayed as accused No.6. The police after investigation file a charge sheet in the said matter and the concerned Court registers S.C.No.423/2015. The petitioner - accused No.6 at the relevant point in time was not available for trial and therefore, the concerned Court tried the other accused and acquitted them on the score that the prosecution has failed to prove the guilt beyond all reasonable doubt. On account - 4 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 of non-availability of the petitioner, the concerned Court draws up a split charge sheet in S.C.No.96/2022 and now is wanting to continue the trial for the aforesaid offences. 4. Learned counsel appearing for the petitioner submits that the petitioner would also get acquitted, if trial is permitted in the case at hand and therefore, seeks quashment of the same on the score of parity. 5. Learned HCGP would however refute the submissions to contend that the petitioner has escaped trial and should not be shown any indulgence and he should come out clean in a full blown trial, as the other accused have come out clean. She would seek dismissal of the petition. 6. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record. 7. The afore-narrated facts are not in dispute. The petitioner not being available for trial at the relevant point in time is a matter of record. Therefore, it becomes necessary to notice what is the finding qua the acquittal of other accused by the Court of Sessions in terms of its judgment dated 08.08.2022. The reason so rendered are as follows: "17. No doubt, as submitted by the learned Public Prosecutor, during the course of cross examination of PW-1 to 3, except denial, nothing is elicited whether there is any enmity between these accused and PW-1 to 3 to incriminate in this case. But, this proceeding came to be initiated at suomoto at their own instant. Even, according to - 5 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 the the case of the prosecution, these accused were preparing for committing dacoity in the public place at about 9-15 pm. When such being the case, in the absence of corroborative evidence, by any one of the independent panch witness or eyewitnesses, solely based on the evidence of these police officers PW-1 interested to 3, who are witnesses, it cannot be held that the prosecution has proved the guilt of the accused beyond reasonable doubt. Therefore, the prosecution has not placed any consisting and corroborative evidence to prove any of the alleged charges levelled against this accused No.4. Hence, it creates a serious doubt about the involvement of this accused in the alleged incident. Under all these circumstances, in my considered view, the prosecution has utterly failed to prove the guilt of the accused No.4 by producing consisting and corroborative evidence beyond reasonable doubt. Therefore, without any alternative, the benefit of doubt should be extended to these accused No.4 and he is entitled for acquittal. In view of the aforesaid reasons, I answer point Nos. 1 and 2 in the "Negative" 18. POINT NO.3:- In the result, for the reasons stated above, I proceed to pass the following:-
Decision
ORDER The accused No.4 is found not guilty. Hence, by acting under section 235(1) of Cr.P.C., the accused No.4 is hereby acquitted for the offences punishable under sections 399 and 402 of Indian Penal Code. The bail bond of the accused No.4 and his surety stand canceled. The original record and also M.O.1 to 5 may be retained till disposal of the split up case registered against accused Nos.1 to 3, 5 and 6." 8. The offence alleged is preparation for commission of a dacoity, it is a collective act of all the accused as is alleged. Therefore, the acquittal of accused Nos.1 to 5 would undoubtedly enure to the benefit of the petitioner, as eventually he would get acquitted. Therefore, - 6 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 permitting further trial against the petitioner for the eventuality of getting acquitted in the light of the acquittal of accused Nos.1 to 5 would only be a waste of precious judicial time. Therefore, I deem it appropriate to obliterate the proceedings against the petitioner. 9. 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: to be is shown “The petitioner is the accused in the case and he 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 - 7 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 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 the one that was produced by prosecution case. the Therefore, in that view of the matter, the proceeding is quashed.” earlier in 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: the inherent the accused or “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 the appearance of production by the State, for passing orders regarding undergoing sentence. As such, considering these peculiar facts and circumstances, it is deemed proper to exercise 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 the non-appealing accused accused No.1, who 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.” including is said 14. In this background, when the facts on hand are examined, it would clearly indicate that not only complainant but also other witnesses including - 8 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 identifying present before the accused before 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- Though, P.W.1 – complainant had accused. admitted that he has lodged a compliant as per Ex.P-1 and had also admitted that he has given a statement 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 the accused persons 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. 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 - 9 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 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 in S.C.No.12/2007, 94/2007 and 26/2008 and had been acquitted. to 33, who15 were tried 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 Therefore, no against purpose would be served even if the present petitioner is ordered to be tried by the trial Court. the present petitioner. 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 if benefit of would be caused 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. to prosecution - 10 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 rendered based on 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 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, for if considered, acquittal of co-accused also. it would entile 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. (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, for consideration and same stands rejected.” for stay does not survive I.A.No.1/2017 - 11 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 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. 10. 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. 11. For the aforesaid reasons, I pass the following: i. Criminal Petition is allowed. ORDER ii. Proceedings in S.C.No.96/2022 pending before the LVIII Additional City Civil and Sessions Judge, Bangalore (CCH-59), stand quashed, qua the petitioner.” 5. In the instant case, it is an undisputed fact that accused Nos.1, 2 and 4 have been acquitted by the Sessions Court and consequently, by applying the doctrine of parity, proceedings against the petitioner – accused No.3 in C.C.No.30/2003 which is re-numbered as C.C.No.1793/2024 in which petitioner is arraigned as the sole accused also deserves to be quashed. - 12 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 6. I.A.No.1/2025 is filed by one Rajanna seeking impleadment in the present petition on the ground that he is the son of the defacto complainant, late Kariyappa @ Rangaiah, upon whose demise the petitioner was entitled to contest the present petition on behalf of the original complainant. In support of his submission, he places reliance upon the order dated 13.12.2024 passed in Crl.P.No.13159/2024 filed by the petitioner herein in which the prayer for grant of regular bail was rejected by this Court. 7. The said application – I.A.No.1/2025 is opposed by the petitioner, who has filed his statement of objections interalia contending that apart from the fact that the impleading applicant was neither proper nor necessary party to the present petition, the petitioner herein was subsequently enlarged on bail by this Court in this very petition vide order dated 10.01.2025. It was further contended that the petitioner herein was originally arraigned as accused No.3 in C.C.No.30/2003, which was split up and re- numbered by arraigning the petitioner as sole accused in C.C.No.1793/2024 and in the light of the acquittal of the remaining accused Nos.1, 2 and 4 in S.C.No.30/2003, the petitioner would be entitled to get the impugned proceedings quashed by applying the - 13 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 doctrine of parity and as such, the impleading applicant did not have locus standi to seek impleadment, much less contest the present petition. It was therefore contended that there is no merit in the impleadment application and that the same is liable to be dismissed. 8. A perusal of the material on record will indicate that the main ground urged by the impleading applicant to seek impleadment is that he is the son of the deceased original complainant and that the petitioner herein has been denied bail by this Court in Crl.P.No.13159/2024 dated 13.12.2024; in this context, it is relevant to state subsequently, in the present petition this Court enlarged the petitioner herein on bail vide order dated 10.01.2025, which reads as under: “I.A.No.1/2025 is filed by the applicant seeking to implead him as party – respondent No.2 in the present petition. 2. Learned counsel for the petitioner seeks time to file objections. In addition thereto, learned counsel for the petitioner submits that by virtue of the judgment of acquittal dated 22.07.2005 passed in S.C.No.30/2003 by FTC-III, Tumkur, in respect of accused Nos.1 and 4, petitioner – accused No.3 would also be entitled to seek quashing of the impugned proceedings insofar as he is concerned by applying / invoking doctrine of parity. It is also submitted that the petitioner is in judicial custody for the last 2½ months and any further detention would violate - 14 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 Article 21 of the Constitution of India and as such, necessary directions may be issued to release the petitioner on bail as sought for in I.A.1/2024. In support of his contentions, learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court in the case of Arnab Manoranjan Goswami vs. State of Maharashtra and others – (2021) 2 SCC 427. 3. Per contra, learned HCGP seeks time to file necessary objections. 4. In the peculiar / special facts and circumstances of the instant case, in particular, acquittal of accused Nos.1 and 4 who are said to have committed the alleged overt act of stabbing for the offence punishable under Section 307 of IPC and the allegations made against the petitioner are to the effect that the petitioner along with accused No.2 said to have held the original complainant at the time of accused Nos.1 and 4 alleged to have stabbed the victim – de facto complainant, I am of the view that the petitioner who is in judicial custody for more than 2½ months would be entitled to interim bail for a limited period of two weeks from today and petitioner is directed to be enlarged on bail in C.C.No.30/2003 re-numbered as C.C.No.1793/2024 pending before the Court of Senior Civil Judge and JMFC, Kunigal, arising out of Crime No.363/1994 of Kunigal Police Station, registered for an offence punishable under Section 307 of IPC, subject to the following conditions: a) Petitioner shall execute a personal bond for a sum of Rs.1,00,000/- with two sureties for the likesum, to the satisfaction of the jurisdictional Court; b) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses; c) The petitioner shall not involve in similar offences in future; - 15 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 5. The apprehension urged by the learned counsel for the impleading applicant that if the petitioner is released on interim bail, he would cause threat to the life and property of the impleading applicant can be allayed by directing the petitioner not to do any act, deed or thing so as to harm or cause inconvenience to the impleading applicant. Re-list on 17.01.2025. Office objections to be complied with by the next date of hearing. Hand delivery of this order is permitted.” 9. It is also pertinent to note that I have already come to the conclusion that in view of the undisputed fact that the petitioner herein was originally arraigned as accused No.3 in C.C.No.30/2003, which was split up and re-numbered by arraigning the petitioner as sole accused in C.C.No.1793/2024 and in the light of the acquittal of the remaining accused Nos.1, 2 and 4 in S.C.No.30/2003, the petitioner would be entitled to get the impugned proceedings quashed by invoking and applying the doctrine of parity. Under these circumstances, I am of the view that there is no merit in the application, I.A.No.1/2025, which is accordingly dismissed. 10. In the result, I pass the following: ORDER (i) The petition is hereby allowed. - 16 - NC: 2025:KHC:11388 CRL.P No. 13803 of 2024 (ii) The proceedings in C.C.No.30/2003 re- numbered as C.C.No.1793/2024 (Main case in C.C.No.30/2003) arising out of FIR in Crime No.363/1994 registered by the respondent – Police, pending on the file of Senior Civil Judge and JMFC, Kunigal, for offence punishable under Section 307 of IPC insofar as the petitioner is concerned are hereby quashed. Sd/- (S.R.KRISHNA KUMAR) JUDGE Srl. / SV