FAHIMA AKTHAR vs STATE OF KARNATKA & ANR.

Heard the learned counsel for the petitioner. Perused the records.

Petitioner has filed this petition seeking quashing of the entire further proceedings in C.C.No.4258/2006 pending on the file of JMFC-II Court,

Dakshina Kannada, Mangalore.

Earlier also, the petitioner has approached this Court in Crl.P.No.6494/2016 seeking for the same relief. However, the said petition was

dismissed for non-compliance of office objections.

As the earlier petition has not been disposed of on merits, after hearing both the sides, the matter is taken up for disposal even at the stage of

admission.

The petitioner was arrayed as accused No.2 in C.C.No.574/2004 on the file of the JMFC-II Court, Dakshina Kannada, Mangalore, for the

offences under Sections 324, 427, 504 r/w Section 34 of IPC. As this petitioner was absconding, a split up case has been registered against him

later in C.C.No.4258/2006. However, the original proceeding in C.C.No.574/2004 was concluded by the Trial Court by acquitting accused No.1

after holding trial.

In this regard, it is worth to mention here a decision of the 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 main 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 coaccused held proper.

In another decision reported in 2002(1) KCCR 1 in the case of Muneer Ahmed Qureshi, Muneer @ Gaun Muneer V/s State of Karnataka by

Kumarswamy 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 was quashed.

In view of the above said decisions, it is clear that, if a co-accused who stands on same footing as that of the petitioner has already been

acquitted, same benefit of acquittal has to be extended to the absconding accused also. The rider is that the factual aspect or the allegations made

against both the accused and the acquitted accused shall be inseparable and indivisible in nature.

In order to ascertain whether the allegations are one and the same against this petitioner and acquitted accused, it is just and necessary to have

the brief factual matters of the case.

It is seen that, the charge-sheet has been filed against the petitioner and other acquitted accused alleging that the petitioner and other accused

on 29/30.10.2003 at about 00.20 hours in front of commercial complex, Manjil Bail, Azizuddin road, Mangalore, both of them have intentionally

insulted the complainant, examined as PW.1 by name Peter D''souza and also assaulted him and caused damage to him and thereby committed

offences under Sections 504, 324, 427 r/w Section 34 of IPC.

The Trial Court also framed charges against the accused including the allegations made against this petitioner and ultimately after recording the

evidence of PWs.1 to 3 and also marking four documents as Exs.P1 to P4 and material object No.1-a stone, the Trial Court has come to the

conclusion after appreciating the material on record that, the prosecution has not proved its case against accused No.1 and ultimately acquitted him

vide judgment dated 19.09.2005 which has not been subjected to any appeal or revision by the State.

In view of the above said facts and circumstances, the allegations against the petitioner and the acquitted accused are one and the same and

they are inseparable and indivisible in nature. Even if the trial is ordered to be proceeded against this petitioner, it is sheer waste of judicial time and

the prosecution cannot produce better evidence than the one already produced. It is worth to mention here that, complainant himself has turned

totally hostile to the prosecution in the above said case. In view of the above, benefit of judgment of acquittal as noted above requires to be

extended to the petitioner also. Hence, I pass the following

ORDER

The petition is allowed. Consequently, all further proceeding in C.C.No.4258/2006 pending on the file of JMFC-II Court, Dakshina Kannada,

Mangalore, for the offences under Sections 324, 427, 504 r/w Section 34 of IPC is hereby quashed. In view of disposal of the petition,

I.A.No.1/2017 for stay does not survive for consideration and the same stands dismissed.