w w w . L a w y e r S e r v i c e s . i n



Nichu @ Nishruth v/s The State of Karnataka by Mangaluru Rural Police Station, Rep by SPP

    W.P. No. 24886 of 2018 (GM-RES)

    Decided On, 13 July 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

    For the Petitioner: B. Lethif, Advocates. For the Respondent: S. Rachaiah, HCGP.



Judgment Text

(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India r/w Sec. 482 of Cr.P.C. praying to call for records and to quash the entire proceedings against the petitioner in C.C.No.2213/2017 (Crime No.165/2013) of Mangaluru Rural Police Station, D.K.District, on the file of the JMFC (Iii Court) Mangaluru, which is produced at annexure-E.)

K.N. Phaneendra, J.

1. The petitioner is arrayed as accused No.6 in CC No.3793/2013 originally, and later Split up case in CC No.2213/2017 came to be registered for the offence punishable under sections 143, 147, 148, 341, 323, 324, 504, 506 read with Section 149 of IPC, on the file of the JMFC III Court, Mangaluru.

2. The petitioner has claim

Please Login To View The Full Judgment!

ed that some of the other accused persons who were tried in the above noted CC No.3793/2013, were acquitted vide judgment dated 12.12.2017 by the JMFC-III Court, Mangaluru. Therefore, the petitioner claims that, the facts and circumstances of this case and the allegations made against the petitioner and the acquitted accused are one and the same and they are inseparable and indivisible in nature. However, due to non availability of the petitioner, a split up charge sheet was filed against him in CC No.2213/2017, pending on the file of the JMFC III Court Mangaluru. Therefore, the petitioner claims that benefit of judgment of acquittal may also be extended to the petitioner and consequently, all further proceedings against him in CC No.2213/2017 pending on the file of the JMFC-III Court, Mangaluru, may be quashed.

3. The benefit of judgment of acquittal whether has to be extended to the absconding accused persons or not, against whom a split up case is registered and consequential quashing of the proceedings can be done only under peculiar circumstances of the case. This point has been extensively dealt with by the Hon'ble Apex Court and this court.

4. In this regard, it is worth to note here a decision of the Hon'ble Apex Court reported in AIR 2005 SC 268 in the case of Central Bureau of Investigation Vs. Akhilesh Singh, wherein, it was held that:

"Quashing of charge and discharge of the accused when an accused who alleged to have hatched conspiracy and who had motive to kill the deceased were already discharged, that matter had attained finality, the discharge of co- accused by High Court by holding that no purpose would be served in further proceeding with case against co-accused held proper."

5. In another decision reported in 2002(1) KCCR 1 in the case of Muneer Ahmed Qureshi, Muneer @ Gaun Muneer Vs. State of Karnataka by Kumaraswamy Layout Police, wherein this Court has held that:

"Entire case of the prosecution as against six accused is practically inseparable and individual one and especially when the Judgment of acquittal is passed, when P.W.1 denies the entire incident or the role of the accused. This reasoning of acquittal would also definitely enure to the petitioner. Even if the petitioner is tried there cannot be any other material other than what is already produced and considered by Trial Court. In such circumstances it will be an exercise in futility to make the petitioner to undergo the ordeal of crime, and then to be acquitted.

Holding that the proceeding against the accused person who was absconding and subsequently against whom a split up charge sheet was filed, is quashed."

6. In the above said backdrop and the dictum of the Hon'ble Apex Court and this court, the only point that requires for consideration of this court is -

"Whether the materials placed before the court against the accused person who has already acquitted and the material available against the petitioner herein, are one and the same and inseparable if juxtapose compared with each other".

If the allegations are indivisible and inseparable in nature, in such an eventuality, the judgment of acquittal can also be extended to the absconding accused persons or against whom, a separate split up charge sheet has been filed. Therefore, it is incumbent upon the court to examine the materials on record to find out whether the petitioners are entitled for such benefit in a given particular case. Therefore, it is just and necessary to ascertain the factual aspects of this case.

7. It is the case of the prosecution that as could be seen from the original charge sheet and as well as the factual matrix that emanate from the judgment recorded by the trial Court is that -

On 7.5.2013 at about 11.00 p.m., when the complainant is on the way to marriage hall called by name Yashaswi Hall in his bike No.KA-19/Y-5806 at that point of time the accused persons who were known to him were came in a Ritz Car bearing No.KA- 19-237 and in a Qualis Car came and obstructed the bike of the complainant and one person came out from the car and assaulted him by wooden piece and stabbed with a knife and thereafter the complainant got shifted to Eye Land Hospital at Mangaluru, and thereafter he requested to take action against the accused in accordance with the law.

8. On the basis of the above said allegations, the respondent Police have registered a case in FIR No.165/2013 and this petitioner is arrayed as accused No.6 in the charge sheet. During trial, accused Nos.1, 2, 4, 5, 7, 8, 10-13 were appeared before the trial Court and faced trial. As the accused Nos.3, 6 and 9 were absconding, split up case in CC No.2213/2017 came to be registered by filing a separate charge sheet.

9. The prosecution in order to prove the guilt of the accused examined as many as 2 witnesses and got marked 5 documents as Exhibits P-1 to P-5. After appreciating the oral and documentary evidence, the Sessions Court has come to the conclusion that, there was no acceptable evidence to prove that the accused have committed the offences charged against them. The court also observed that the material witnesses have not supported the case of the prosecution particularly PWs.1 & 2. Therefore, the court has acquitted the other accused for the alleged offences.

10. On careful perusal of the materials on record, the allegations made against the petitioner and other acquitted accused persons are one and the same and they are inseperable and indivisible in nature. The evidence that has already been placed by the prosecution and appreciated by the trial Court also reveal that the allegations against the petitioners are not distinct and separate from the other acquitted accused persons.

11. Under the above said facts and circumstances of the case, considering the factual aspects of this case, no purpose would be served if the petitioner is once again tried for the same offences as the prosecution cannot put forth any better evidence than the one already placed before the court and appreciated by the trial Court. Hence, the petitioner is also entitled for the benefit of acquittal. If the prosecution is ordered to be continued, same amounts to waste of judicial time and also abuse of process of the court. Hence, I proceed to pass the following:

ORDER

The Petition is allowed. Consequently, all further proceedings in CC No.2213/2017 (Arising out of FIR No.165/2013 of Mangaluru Rural Police Station) pending on the file of the JMFC-III Court, Mangaluru, for the offences under Sections 143, 147, 148, 341, 323, 324, 504, 506 r/w 149 of IPC against the petitioner herein are hereby quashed.
O R