Neelkanth vs The State and Others

K.N. Phaneendra, J.

The present petition is filed seeking remedy of quashing the entire proceedings in C.C. No. 365/2013 against the petitioner registered for the offences punishable under Sections 323, 354, 504 r/w. 34 of IPC.

The brief factual matrix that emanate from the record are that, a lady by name Parvati W/o. Hiru Pawar of Gullolli Tanda, lodged a complaint stating that they have mortgage a house property bearing No. 7-3-65 in favour of the son of the petitioner by name Rahul S/o. Neelkanth Rathod. The said Rahul was also a partner in the Industrial Steel Company of the complainant and he left the partnership business about a year back. It was admitted that there was some transaction between the parties in this regard. In this background, it is alleged that on 05.08.2012 at about 11.00 a.m. One Mr. Prakash went to the house of the complainant and assaulted the complainant and other persons and also husband of the complainant and he also outraged the modesty of that lady by dragging her saree etc. At that time, one Mr. Mohan S/o. Devidas came there along with said Prakash abused the complainant in the filthy language and assaulted her. When the complainant went to the police station, there also Premnath, Mohan, Prakash, all of them joined together and assaulted the son of the complainant. In the complaint, it is stated that the above said persons have done the said act on the instigation of the petitioner/Neelkanth. On the basis of such information the police have registered a case and investigated the matter and submitted the charge sheet. During the course of investigation, the police have recorded the statement of the witnesses by name Shankar Rathod, Vinod, Gundappa, out of them Vinod and Gundappa are the pancha witnesses and other witnesses in fact have not spoken anything about this petitioner/Neelkanth. Therefore, what remains for the consideration is that the contents of the FIR on the statement of the complainant. On meticulous analysis of the entire FIR and the charge sheet except stating in one sentence that the said Prakash and others have assaulted the complainant and his son on the instigation or abetment by Neelkanth. Nothing is there to show in what manner the said Neelkanth has abetted the offences. The said one sentence stated in the complaint is also not supported by any other materials in the charge sheet.

In order to implicate a person punishable under Section 109 of IPC one has to bring home the ingredients of Section 107 of IPC, this provision clearly discloses that,

"107. Abetment of a thing. - A person abets the doing of a thing, who-

First.- Instigates any person to do that thing; or

Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly. - Intentionally aids, by any or illegal omission, the doing of that thing.

Explanation 1. - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act".

The provision clearly indicates that there should be some conspiracy between the persons who have committed the offences and the abettor and in order to show the conspiracy there should be some materials in the charge sheet papers in order to implicate the abettor into the crime by specifically explaining the meeting of the accused persons, planning for committing any illegal act or omission and that should be later acted upon by some or all the accused. Except in one word stating that the other accused persons have committed the offences due to the instigation or abetment by the petitioner nothing else has been stated in any of the statement of the witnesses including the complainant. Therefore, looking to the above said circumstances, even the Court cannot, at this stage, imagine what evidence the complainant may propose to lead before the Court against this petitioner. In order to proceed with the accused there should be sufficient ground to frame charges and hold the trial against the accused, if no intentional facts are available in the complaint or in the charge sheet papers it would be a futile attempt to try the accused before the Court. In such eventuality the valuable right of liberty of a person as guaranteed under the Constitution of India would be paralyzed. It goes without saying that a person should not be called upon to the Court to answer any of the charges unless allegations of the complainant is substantiated by other materials on record and the allegations made in the complaint are sufficient to constitute the offences alleged against him. Unless the ingredients as noted under Section 107 of IPC are brought into the factual matrix no case can be registered against the petitioner.

Though the learned counsel for the respondent No. 2 and learned High Court Government Pleader made attempts to persuade this Court by submitting that the petitioner has taken the defense of alibi, that he was not present on that particular day, it is his burden to prove the same before the trial Court. But plea of alibi or any defense of the accused does not come into the picture at all at this stage because of the simple reason even according to the complainant herself the petitioner was not there on the spot on the date of the incident her claim is only that he is an absentee abettor. Even otherwise the defense of the accused is not at all relevant point to be considered at the initial stages. First of all the Court has to see what is the material proposed to be placed before the Court by the prosecution and whether it is sufficient to involve the petitioner or the accused into the crime and whether necessary ingredients of the offences alleged have been brought into the prosecution papers, if such materials regarding conspiracy are absent there is no question of the accused entering into the defense, at this stage. Under the above said circumstances, I am of the strong opinion, that such proceedings if allowed to be continued it would amount to abuse of process of law. Hence, such proceedings deserve to be quashed against the petitioner. Hence, I proceed to pass the following;

ORDER

The petition is allowed. Consequently, the entire proceedings in C.C. No. 365/2013 (Crime No. 165/2013) pending on the file of the Civil Judge and JMFC at Aland, so far it relates to this petitioner is concerned are hereby quashed.

However, the proceedings shall continue so far as other accused are concerned.