NAGARAJ POOJARY vs STATE OF KARNATAKA

Heard the learned counsel for petitioner and the learned High Court Government Pleader.

The petitioner has sought for quashing of a split up chargesheet filed against him which culminated in S.C.No.111/2014 arising out of Crime

No.138/2006 pending on the file of III Additional Sessions and Special Judge, D.K. Mangaluru, for the offences punishable under Sections 143,

147, 148, 353, 332, 307 read with Section 149 of IPC and Section 2(A) of KPDLP Act, 1981.

The respondent-Police have lodged a chargesheet against as many as 25 accused persons in Crime No.138/2006 and a Sessions Case was

registered against all of them in S.C.No.72/2009. Subsequently, the accused No. 23 was secured and separate Sessions Case was registered

against him in .S.C.No.15/2010. Some of the accused persons were shown absconding. Accused No.3, the present petitioner was also as shown

absconding and remaining accused persons as noted above i.e. accused Nos. 5,7 to 11, 12,14, 17,18 and accused Nos.4, 13, 15, 19, 20 to 22,

24 and 25 were all tried in the above said S.C.No.72/2009 and 15/2010 and ultimately, after trial, the said accused persons were acquitted by the

Trial Court.

The prosecution, in order to bring home the guilt of above said accused persons, examined as many as 29 witnesses, PWs 1 to 29, got marked

33 documents as Exhibits P1 to P33 and material objects MOs. 1 to 13.

The Trial Court, after appreciating the oral and documentary evidence on record, acquitted the above said accused persons.

The learned counsel for petitioner strenuously contends that, the petitioner also stand on par with the accused persons who are already acquitted

by the Trial Court in the aforesaid two Session cases. No purpose would be served even the accused is ordered to face the trial. It is a sheer

waste of judicial time.

In view of the aforesaid submission, the Court has to see whether the allegations made against the petitioner and other acquitted persons are of

similar, inseparable and indivisible in nature, in such an eventuality, the Court can quash the proceedings against the petitioner also.

In this regard, in my opinion, it is worth to note 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 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 coaccused held proper.

In another decision reported in 2002(1) KCCR 1 in the case of Muneer Ahmed Qureshi, Muneer @ Gaun Muneer Vs. 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.

As could be seen from the above said decisions, even against the absconding accused also, the Court can exercise the powers under Section

482 of Cr.P.C. and quash the proceedings if the proceedings against the accused amounts to abuse of process of the Court and no purpose would

be served and it is waste of judicial time.

In the above said background, the Court has to examine whether the allegations made against the accused persons in S.C.No.72/2009 arising

out of Crime No.138/2006 are all similar and inseparable and indivisible in nature.

The prosecution case as could be seen from the chargesheet is that, on 1.12.2006 all the accused persons named in the chargesheet formed

into an unlawful assembly, holding deadly weapons like club, reaper, stone, with a common intention to commit an act of rioting and caused

obstruction in the public place, prevented the police from discharging their duties and at that time, the procession of dead body of one Sukananda

Shetty being taken by the BJP political leaders from Kulai towards Mulki in Mangaluru National High way road. In that context, due to some

political rivalry, all the accused persons shouted saying that they will kill ''bearys'' (a particular community). Afterwards, they proceeded on the

road near Mulki Police station and tried to destroy the police station, pulled away CW1-Dayananda, the Superintendent of Police, who was in the

uniform and also prevented the other police from discharging their duties. It is also further alleged that they snatched SLR rifle from the possession

of CW9-Raju K. Nair. They also damaged the tiles, sheets in the police station and caused damages to the extent of Rs.30,000/-. Though, CW1

has addressed the accused persons to disperse themselves and even ordered for laticharge, inspite of the said order, the mob did not disperse, but

being provoked, they also assaulted some police officials and committed the offences as alleged against them. It is alleged that they have done all

those acts with an intention to murder CW1 by assaulting him with a reaper and other deadly weapons which were in the hands of the accused

persons. On these allegations, the police have registered a case for the offences under Sections 143, 147, 148, 353, 332, 307 read with Section

149 of IPC and also under Section 2(A) of KPDLP Act, 1981.

The Trial Court has also framed charges against the accused persons against whom the trial was held including the allegations referred to

against the absconding and other accused persons, particularly, including the allegations made against this petitioner. While answering the charges,

the Court has framed points for consideration. In those points for consideration also, the whole allegations made against all the accused persons

have been considered by the Trial Court.

The Trial Court, after examining the evidence of the prosecution witnesses has come to the conclusion that the prosecution has failed to prove

the offences alleged against the accused persons beyond reasonable doubt.

On careful perusal of the entire appreciation of the evidence by the Trial Court and also the allegations made against all the accused persons,

this Court is of the opinion that the allegations and the proof given by the prosecution against the acquitted accused persons are similar and

inseparable in nature. There is no separate, special or specific or distinct allegations made against this petitioner where the Court can consider

whether he can be tried independently and individually. If the answer of the Court is in the negative, the benefit of the acquittal judgment rendered

by the Trial Court is also to be extended so far as the petitioner is concerned.

Under the above said circumstances, as rightly contended by the learned counsel, no useful purpose would be served if the trial is ordered to

be held against the petitioner. It is sheer waste of time. Prosecution cannot produce better evidence than the one already produced in the trial

Court which has been already considered by the Trial Court in proper perspective.

It is also submitted by the learned High Court Government Pleader that, no appeal has been preferred by the State against the judgment

passed in S.C.Nos.72/2009 and 15/2010 on the file of the III Additional Sessions and Special Judge, D.K. Mangaluru.

In the above said circumstances, I proceed to pass the following:

ORDER

Petition is allowed. Consequently, S.C.No.111/ 2014 registered against the petitioner (arising out of Crime No.138/2006) for the offences

punishable under Sections 143,147,148,307,353,332 read with Section 149 of IPC and under Section 2(A) of KPDLP Act, 1981, pending on

the file of III Additional Sessions and Special Judge, D.K., Mangaluru, is and all further proceedings therein are hereby quashed.