Karnataka High Court
Abhishek S. Y. @ Abhi vs The State Of Karnataka on 16 June, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 13731 OF 2024
BETWEEN:
ABHISHEK S.Y. @ ABHI
S/O LATE YOGESH,
AGED ABOUT 21 YEARS,
R/AT SAMUDRAVALLI VILLAGE,
SHANTHIGRAMA HOBLI,
HASSAN TALUK,
HASSAN DISTRICT-01
...PETITIONER
(BY SRI. PRATHEEP K.C., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY HASSAN RURAL POLICE STATION,
HASSAN DISTRICT,
REP. BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
Digitally BENGALURU-560 001.
signed by
CHANDANA
BM 2. SURESH
Location: S/O. LATE THIMMEGOWDA,
High Court AGED ABOUT 55 YEARS,
of Karnataka
R/AT NAGATHAVALLI VILLAGE,
KASABA HOBLI, HASSAN TALUK,
HASSAN DISTRICT-01
...RESPONDENTS
(BY SRI. NAGESHWARAPPA K., HCGP FOR R1;
NOTICE TO R2 SERVED AND UNREPRESENTED)
THIS CRL.P IS FILED U/S 482 CR.PC (FILED U/S 528 BNSS)
PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.5210/2024
(CR.NO.203/2024) FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
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189(2), 191(2), 191(3), 329(4), 54, 109, 103(1), 61(1) AND 190 OF BNS, 2023
BY HASSAN RURAL POLICE, PENDING ON THE FILE OF 1ST ADDL. CIVIL
JUDGE AND JMFC AT HASSAN IN SO FAR AS PETITIONER HEREIN IS
CONCERNED.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition the petitioner seeks for the following reliefs:
“WHEREFORE, it is prayed that this Hon’ble Court
may be pleased to quash the entire proceedings in
C.C.No.5210/2024 (Cr.No.203/2024) for the
offences punishable U/S 189(2), 191(2), 191(3),
329(4), 54, 109, 103(1), 61(1) and 190 of BNS 2023
by Hassan rural police, pending on the file of 1st
Addl. Civil Judge and JMFC at Hassan in so far as
petitioner herein is concerned in the interest of
justice and equity.”
2. Heard the learned counsel for the petitioner and
respondent No.2 served unrepresented.
3. A perusal of the material on record will indicate that the
2nd respondent/complainant filed the instant complaint against the
petitioner/accused No.7 and other accused for the offences
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punishable under Sections 189(2), 191(2), 191(3), 329(4), 54, 109,
103(1), 61(1) and 190 of BNS 2023.
4. The said complaint was registered as an FIR in
Cr.No.203/2024 and after investigation, charge sheet has been
filed which is currently pending in C.C.No.5210/2024 before the
Trial Court for the offences punishable under Sections 103(1),
189(2), 190, 191(2), 191(3), 329(4), 54, 61(1) and 190 of BNS 2023.
5. A perusal of the material will indicate that neither the
FIR nor the charge sheet nor the statement of witnesses would
indicate the presence or participation of petitioner/accused No.7 in
the incident in question. In fact the petitioner is sought to be
arraigned as accused No.7 only on the basis of the alleged
voluntary statement of co-accused which is impermissible in law as
held by the Hon’ble Apex Court in the case of Surinder Kumar
Khanna Vs. Intelligence officer, Directorate of Revenue
Intelligence – (2018) 8 SCC 271 wherein it held as under:
Special leave to appeal granted. This appeal
challenges the correctness of judgment and order
dated 21-12-2016 passed by the High Court of
Punjab and Haryana at Chandigarh in Surinder
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Kumar Khanna v. Directorate of Revenue
Intelligence by which the High Court affirmed the
conviction of the appellant for the offences
punishable under Section 21(c) read with Section
29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (“the NDPS Act“, for short).
2. According to the prosecution:
2.1. On a specific information that narcotic
drugs were going to be transported from Jammu
side to Chandigarh via Hoshiarpur in a white-
coloured Indica car bearing Registration No. PB
02 AJ 7288, the officers of Directorate of Revenue
Intelligence (for short “DRI”) laid picket at toll
barrier at Hoshiarpur-Garhshankar Road. At 1035
hrs, they intercepted an Indica car of white colour
which was coming from Hoshiarpur side bearing
Registration No.PB 02 AJ 7288. The car was
being driven by one Raj Kumar alias Raju
whereas one Surinder Pal Singh was sitting next
to him. To ensure safe search of the car and
personal search of occupants, the car was taken
to the office of Superintendent, Central Excise
Range, Model Town, Hoshiarpur. The officers of
DRI served notice under Section 50 of the NDPS
Act upon said Raj Kumar alias Raju and Surinder
Pal Singh.
2.2. As desired by said suspects, their
personal searches and that of the car were
conducted in the presence of independent
witnesses and Shri S.J.S. Chugh, Senior
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Intelligence Officer. Personal searches of the
suspects did not result in recovery of any
incriminating material. However, when the car was
searched, four packets wrapped with yellowish
adhesive tapes were found concealed in the door
of dickey of the car. The gross weight of those
four packets came to 4.300 kg.
2.3. Each of those packets was containing
white-coloured granules/powder which gave a
very pungent smell. The pinch of each packet was
tested, which showed the presence of heroin. The
recovered heroin weighing 3.990 kg was valued at
Rs 19,95,000. Those four packets were taken into
possession. Two representative samples of 5 gm
each were taken out from each of the packets as
per rules. Indica car was also seized by the
officers of DRI. Statements of both the suspects
were recorded. From their statements, it
transpired that four packets of heroin had been
taken from one Mr Goldy r/o Vijaypur, Jammu and
those packets were to be delivered to a person of
African origin near PGI, Chandigarh.
2.4. Initially a complaint under Sections 21,
22, 23, 28, 29 and 60 of the NDPS Act was lodged
against said Raj Kumar alias Raju and Surinder
Pal Singh. During investigation, the involvement of
the present appellant in the drug racket was said
to have been made out. After the appellant was
arrested, a supplementary complaint was
presented against him and the matter was taken
up with the main complaint. After hearing
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arguments, charges were framed against said Raj
Kumar alias Raju and Surinder Pal Singh and the
appellant for the offences under Sections 21, 29
and 60 of the NDPS Act.
3. The prosecution, in support of its case,
examined four witnesses. After hearing
submissions, the trial court convicted and
sentenced all three accused. The appellant was
convicted under Section 21(c) read with Section
29 of the NDPS Act and was sentenced to
undergo rigorous imprisonment for 12 years and
to pay a fine of Rs 1 lakh, in default whereof to
undergo further rigorous imprisonment for three
years. Similar orders for conviction and sentence
were recorded against other two accused, namely,
Raj Kumar alias Raju and Surinder Pal Singh. All
three convicted accused preferred appeals,
namely, Criminal Appeal No. D-955-DB-2013 was
filed by Raj Kumar alias Raju and Surinder Pal
Singh while Criminal Appeal No. D-798-DB-2014
was preferred by the appellant. Both these
appeals were heard together by the High Court.
4. As regards the appellant, it was
observed by the High Court that he was
specifically named by co-accused Raj Kumar alias
Raju and Surinder Pal Singh in their statements.
Apart from such statements nothing was produced
on record to indicate the involvement of the
appellant. The High Court, however, found that
the case against the appellant was made out. It
was observed:
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“Offence of abetment under Section 29 of
the NDPS Act stood established against accused
Surinder Kumar Khanna, showing that he was
involved in drug trafficking. He was specifically
named by accused Raj Kumar @ Raju and
Surinder Pal Singh in their statements. Such
statements of accused Raj Kumar @ Raju and
Surinder Pal Singh recorded under Section 67 of
the NDPS Act are admissible in evidence and are
not hit by Section 25 of the Evidence Act because
the officers of DRI, who had apprehended Raj
Kumar @ Raju and Surinder Pal Singh, travelling
in an Indica car and effecting recovery from them
do not come within the definition of police
officers.”
The High Court thus affirmed the order of
conviction as recorded against the appellant but
reduced the sentence to rigorous imprisonment for
a period of 10 years and to pay a fine of Rs 1 lakh,
in default whereof to undergo further rigorous
imprisonment for 1½ years. Similar orders of
sentence were passed in respect of other co-
accused, namely, Raj Kumar alias Raju and
Surinder Pal Singh.
5. In this appeal, challenging the
correctness of the conviction and sentence
rendered as against the appellant, it was
submitted by Mr Jayant Bhushan, learned Senior
Advocate that apart from the so-called statements
of co-accused Raj Kumar alias Raju and Surinder
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Pal Singh there was nothing against the appellant
and that he was neither arrested at the site nor
was the contraband material in any way
associated with him. Mr Maninder Singh, learned
Additional Solicitor General appearing for the
respondent, however, supported the judgment of
conviction and sentence rendered against the
appellant. He placed on record call data reports
showing that around the time when the co-
accused was arrested, the appellant was in touch
with a person named Chaudhary from Dubai. The
learned Additional Solicitor General however fairly
accepted that apart from the statements of the co-
accused there was nothing to link the appellant
with the said convicted accused. The call data
reports also did not indicate that around the time
when co-accused were apprehended, the
appellant was in touch with either of them.
6. For the present purposes, we will
proceed on the footing that the statements of co-
accused were recorded under and in terms of
Section 67 of the NDPS Act. As regards such
statements, a Bench of two Judges of this Court
after referring to and relying upon the earlier
judgments, observed in Kanhaiyalal v. Union of
India – (2008) 4 SCC 668: (SCC p. 682, para 45)
“45. Considering the provisions of Section
67 of the NDPS Act and the views expressed by
this Court in Raj Kumar Karwal case – (1990) 2
SCC 409 with which we agree, that an officer
vested with the powers of an officer in charge of a
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police station under Section 53 of the above Act is
not a “police officer” within the meaning of Section
25 of the Evidence Act, it is clear that a statement
made under Section 67 of the NDPS Act is not the
same as a statement made under Section 161 of
the Code, unless made under threat or coercion. It
is this vital difference, which allows a statement
made under Section 67 of the NDPS Act to be
used as a confession against the person making it
and excludes it from the operation of Sections 24
to 27 of the Evidence Act.”
7. Later, another Bench of two Judges of
this Court in Tofan Singh v. State of – (2013) 16
SCC 31 was of the view that the matter required
reconsideration and therefore, directed that the
matter be placed before a larger Bench. It was
observed in Tofan Singh as under: (SCC pp. 57-
58, paras 40-42)
“40. In our view the aforesaid discussion
necessitates a re-look into the ratio of Kanhaiyalal
case – (2008) 4 SCC 668 . It is more so when this
Court has already doubted the dicta
in Kanhaiyalal in Nirmal Singh Pehlwan [Nirmal
Singh Pehlwan v. Inspector, Customs, (2011) 12
SCC 298 wherein after noticing
both Kanhaiyalal as well as Noor Aga v. State of
Punjab, (2008) 16 SCC 417 this Court observed
thus: (Nirmal Singh Pehlwan case SCC p. 302,
para 15)
’15. We also see that the Division Bench
in Kanhaiyalal case had not examined the
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principles and the concepts underlying Section 25
of the Evidence Act, 1872 vis-à-vis Section 108 of
the Customs Act and the powers of a Customs
Officer who could investigate and bring for trial an
accused in a narcotic matter. The said case relied
exclusively on the judgment in Raj Kumar
Karwal v. Union of India,- (1990) 2 SCC 409. The
latest judgment in point of time is Noor Aga case ]
which has dealt very elaborately with this matter.
We thus feel it would be proper for us to follow the
ratio of the judgment in Noor Aga particularly as
the provisions of Section 50 of the Act which are
mandatory have also not been complied with.’
41. For the aforesaid reasons, we are of
the view that the matter needs to be referred to a
larger Bench for reconsideration of the issue as to
whether the officer investigating the matter under
the NDPS Act would qualify as police officer or
not.
42. In this context, the other related issue
viz. whether the statement recorded by the
investigating officer under Section 67 of the Act
can be treated as confessional statement or not,
even if the officer is not treated as police officer
also needs to be referred to the larger Bench,
inasmuch as it is intermixed with a facet of the first
issue as to whether such a statement is to be
treated as statement under Section 161 of the
Code or it partakes the character of statement
under Section 164 of the Code.”
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8. Thus, the issue whether statement
recorded under Section 67 of the NDPS Act can
be construed as a confessional statement even if
the officer who recorded such statement was not
to be treated as a police officer, has now been
referred to a larger Bench.
9. Even if we are to proceed on the
premise that such statement under Section 67 of
the NDPS Act may amount to confession, in our
view, certain additional features must be
established before such a confessional statement
could be relied upon against a co-accused. It is
noteworthy that unlike Section 15 of the Terrorist
and Disruptive Activities Act, 1987 [ Similarly:
Section 18 of the Maharashtra Control of
Organised Crime Act, 1999.] which specifically
makes confession of a co-accused admissible
against other accused in certain eventualities;
there is no such similar or identical provision in the
NDPS Act making such confession admissible
against a co-accused. The matter, therefore, has
to be seen in the light of the law laid down by this
Court as regards general application of a
confession of a co-accused as against other
accused.
10. In Kashmira Singh v. State of M.P. –
(1952) 1 SCC 275, this Court relied upon the
decision of the Privy Council in Bhuboni
Sahu v. R. – 1949 SCC OnLine PC 12 and laid
down as under: (AIR p. 160, paras 8-10)
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“8. Gurubachan’s confession has played
an important part in implicating the appellant, and
the question at once arises, how far and in what
way the confession of an accused person can be
used against a co-accused? It is evident that it is
not evidence in the ordinary sense of the term
because, as the Privy Council say in Bhuboni
Sahu
‘…It does not indeed come within the
definition of “evidence” contained in Section 3 of
the Evidence Act. It is not required to be given on
oath, nor in the presence of the accused, and it
cannot be tested by cross-examination.’
Their Lordships also point out that it is
‘obviously evidence of a very weak type. …
It is a much weaker type of evidence than the
evidence of an approver, which is not subject to
any of those infirmities’.
They stated in addition that such a
confession cannot be made the foundation of a
conviction and can only be used in “support of
other evidence”. In view of these remarks, it would
be pointless to cover the same ground, but we feel
it is necessary to expound this further as
misapprehension still exists. The question is, in
what way can it be used in support of other
evidence? Can it be used to fill in missing gaps?
Can it be used to corroborate an accomplice or,
as in the present case, a witness who, though not
an accomplice, is placed in the same category
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regarding credibility because the Judge refuses to
believe him except insofar as he is corroborated?
9. In our opinion, the matter was put
succinctly by Sir Lawrence Jenkins
in Emperor v. Lalit Mohan Chuckerbutty – ILR
(1911) 38 Cal 559 at p. 588.] where he said that
such a confession can only be used to “lend
assurance to other evidence against a co-accused
“or, to put it in another way, as Reilly, J. did
in Periaswami Moopan, In re [Periaswami
Moopan, In re, 1930 SCC OnLine Mad 86 (SCC
OnLine Mad)
‘…the provision goes no further than this–
where there is evidence against the co-accused
sufficient, if believed, to support his conviction,
then the kind of confession described in Section
30 may be thrown into the scale as an additional
reason for believing that evidence.’
10. Translating these observations into
concrete terms they come to this. The proper way
to approach a case of this kind is, first, to marshal
the evidence against the accused excluding the
confession altogether from consideration and see
whether, if it is believed, a conviction could safely
be based on it. If it is capable of belief
independently of the confession, then of course it
is not necessary to call the confession in aid. But
cases may arise where the Judge is not prepared
to act on the other evidence as it stands even
though, if believed, it would be sufficient to sustain
a conviction. In such an event the Judge may call
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in aid the confession and use it to lend assurance
to the other evidence and thus fortify himself in
believing what without the aid of the confession he
would not be prepared to accept.”
11. The law laid down in Kashmira
Singh v. State of M.P., (1952) 1 SCC 275 was
approved by a Constitution Bench of this Court
in Haricharan Kurmi v. State of Bihar – (1964) 6
SCR 623 at pp. 631-633 wherein it was observed:
(Haricharan case AIR p. 1188, para 12)
“12. As we have already indicated, this
question has been considered on several
occasions by judicial decisions and it has been
consistently held that a confession cannot be
treated as evidence which is substantive evidence
against a co-accused person. In dealing with a
criminal case where the prosecution relies upon
the confession of one accused person against
another accused person, the proper approach to
adopt is to consider the other evidence against
such an accused person, and if the said evidence
appears to be satisfactory and the court is inclined
to hold that the said evidence may sustain the
charge framed against the said accused person,
the court turns to the confession with a view to
assure itself that the conclusion which it is inclined
to draw from the other evidence is right. As was
observed by Sir Lawrence Jenkins
in Emperor v. Lalit Mohan Chuckerbutty – ILR
(1911) 38 Cal 559 at p. 588.] a confession can
only be used to “lend assurance to other evidence
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against a co-accused”. In Periaswami Moopan, ,
in respondent Reilly, J., observed that the
provision of Section 30 goes not further than this:
(SCC OnLine Mad)
‘…where there is evidence against the co-
accused sufficient, if believed, to support his
conviction, then the kind of confession described
in Section 30 may be thrown into the scale as an
additional reason for believing that evidence.’
In Bhuboni Sahu v. R. the Privy Council
has expressed the same view. Sir John Beaumont
who spoke for the Board, observed that: (SCC
OnLine PC)
‘… a confession of a co-accused is
obviously evidence of a very weak type. It does
not indeed come within the definition of “evidence”
contained in Section 3 of the Evidence Act. It is
not required to be given on oath, nor in the
presence of the accused, and it cannot be tested
by cross-examination. It is a much weaker type of
evidence than the evidence of an approver, which
is not subject to any of those infirmities. Section
30, however, provides that the court may take the
confession into consideration and thereby, no
doubt, makes it evidence on which the court may
act; but the section does not say that the
confession is to amount to proof. Clearly there
must be other evidence. The confession is only
one element in the consideration of all the facts
proved in the case; it can be put into the scale and
weighed with the other evidence.’
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It would be noticed that as a result of the
provisions contained in Section 30, the confession
has no doubt to be regarded as amounting to
evidence in a general way, because whatever is
considered by the court is evidence;
circumstances which are considered by the court
as well as probabilities do amount to evidence in
that generic sense. Thus, though confession may
be regarded as evidence in that generic sense
because of the provisions of Section 30, the fact
remains that it is not evidence as defined by
Section 3 of the Act. The result, therefore, is that
in dealing with a case against an accused person,
the court cannot start with the confession of a co-
accused person; it must begin with other evidence
adduced by the prosecution and after it has
formed its opinion with regard to the quality and
effect of the said evidence, then it is permissible to
turn to the confession in order to receive
assurance to the conclusion of guilt which the
judicial mind is about to reach on the said other
evidence. That, briefly stated, is the effect of the
provisions contained in Section 30. The same
view has been expressed by this Court
in Kashmira Singh v. State of M.P. – (1952) 1 SCC
where the decision of the Privy Council in Bhuboni
Sahu case has been cited with approval.”
12. The law so laid down has always been
followed by this Court except in cases where there
is a specific provision in law making such
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confession of a co-accused admissible against
another accused.
13. In the present case it is accepted that
apart from the aforesaid statements of co-accused
there is no material suggesting involvement of the
appellant in the crime in question. We are thus left
with only one piece of material that is the
confessional statements of the co-accused as
stated above. On the touchstone of law laid down
by this Court, such a confessional statement of a
co-accused cannot by itself be taken as a
substantive piece of evidence against another co-
accused and can at best be used or utilised in
order to lend assurance to the Court.
14. In the absence of any substantive
evidence it would be inappropriate to base the
conviction of the appellant purely on the
statements of co-accused. The appellant is
therefore entitled to be acquitted of the charges
levelled against him. We, therefore, accept this
appeal, set aside the orders of conviction and
sentence and acquit the appellant. The appellant
shall be released forthwith unless his custody is
required in connection with any other offence.”
This Court in Crl.P.No.4263/2020 held as under:
Heard learned counsel appearing for the
petitioner and learned High Court Government
Pleader appearing for respondent No.1/State.
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2. This petition is filed under Section
482 of Cr.P.C, praying this Court to quash the
entire proceedings in C.C.No.395/2020 on the file
of Civil Judge & JMFC., Moodabidri, for the
offences punishable under Sections 457, 380,
109, 201, 212 read with Section 34 of IPC of Mulki
Police Station, Dakshina Kannada District.
3. The factual matrix of the case is
that, on 08.06.2019 in the complaint an allegation
was made that on 05.06.2019 during the Ramzan
at about 5:00 p.m, the complainant along with his
family members had been to grandmother’s house
at Bajpe. The complainant’s second brother and
his wife had been to her parental house. It is
alleged that, his brother Habib Rehaman alone
stayed in his house. That on 07.06.2019, when his
brother was alone at home, his brother had been
to hotel to have dinner at about 9:00 p.m, at
Hejamadi, returned at about 11:15 p.m, to the
house. It is alleged that, when he returned to the
home, he had noticed the breaking open of the
window by using iron weapons. Immediately, his
brother had called the complainant and the
complainant had been to the house and entered
the house and noticed that, 7 Godrej Almirahs
were opened by the thieves and the clothes were
scattered all over the place and found missing of
Rs.20,000/- from the Almirah and those thieves
had committed theft of Rs.20,000/-. Based on the
complaint, police have registered a case in Crime
No.54/2019. This petitioner is arraigned as
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accused No.4 based on the co-accused
statement. Hence, the present petition is filed
before this Court.
4. The grounds urged in this petition
are that this petitioner had been arraigned as
accused No.4 only on the say of the co-accused
and no recovery was made. No substantive piece
of evidence to continue the proceedings against
him.
5. The learned counsel appearing for
the petitioner would submit that except the co-
accused statement nothing on record to prosecute
him and it amounts to abuse of process.
6. Per contra, learned High Court
Government Pleader appearing for respondent
No.1/State would submit that this petitioner is
none other than the father of accused No.1 and
this petitioner harboured accused No.1 and there
is a substantive material against this petitioner
and Section 482 of Cr.P.C, cannot be invoked.
She further submits that there are six cases
against this petitioner and he is a habitual
offender. Hence, this Court cannot invoke Section
482 of Cr.P.C.
7. Having heard the submissions of
the respective counsel and the prosecution also
not disputes the fact that this accused had been
arraigned as accused No.4 based on the
statement of the co-accused. Having perused the
material, there is no any recovery from this
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petitioner and the co-accused statements are in-
admissible under Section 25 of the Evidence Act,
1872 unless the recovery made under Section 27
of the Indian Evidence Act, 1872. The co-accused
statement is also hit by Section 25 of the Evidence
Act, 1872.
8. The Apex Court in the case of
Surinder Kumar Khanna v. Intelligence Officer,
Directorate of Revenue Intelligence reported in
(2018) 8 SCC 271, held that in paragraph No.14,
which reads as follows:
“14. In the present case it is accepted that
apart from the aforesaid statements of co-
accused there is no material suggesting
involvement of the appellant in the crime in
question. We are thus left with only one piece
of material that is the confessional statements
of the co-accused as stated above. On the
touchstone of law laid down by this Court such
a confessional statement of a co-accused
cannot by itself be taken as a substantive piece
of evidence against another co-accused and
can at best be used or utilized in order to lend
assurance to the Court. In the absence of any
substantive evidence it would be inappropriate
to base the conviction of the appellant purely on
the statements of co-accused. The appellant is
therefore entitled to be acquitted of the charges
leveled against him. We, therefore, accept this
appeal, set aside the orders of conviction and
sentence and acquit the appellant. The
appellant shall be released forthwith unless his
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custody is required in connection with any other
offence.”
9. The Apex Court also comes to the
conclusion that in the absence of any substantive
evidence it would be inappropriate to base the
conviction of the appellant purely on the
statements of co-accused. In the absence of any
substantive piece of evidence, it is not appropriate
to continue the proceedings against this petitioner
without any recovery under Section 27 of the
Evidence Act, 1872 and the material collected by
the State is hit by Section 25 of the Evidence Act,
1872.
10. In view of the discussions made
above, I pass the following:
ORDER
(i) The petition is allowed.
(ii) The proceedings initiated against
the petitioner in C.C.No.395/2020 on the file of
Civil Judge & JMFC., Moodabidri, are hereby
quashed.
In view of allowing the main petition,
I.A.No.1/2020 for stay does not survive for
consideration and the same stands disposed of.
This Court in Crl.P.No.10860/2022 held as under:
“This petition is filed by the petitioner-
accused No.2 under Section 482 of Cr.P.C. for
quashing the criminal proceedings in
S.C.No.1379/2022 pending on the file of LXV
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Additional City Civil and Sessions Judge,
Bengaluru (CCH-66) in Crime No.54/2021
registered by Kodigehalli Police Station,
Bengaluru, for the offences punishable under
Sections 143, 147, 120B, 150, 387, 302 read with
Section 149 of IPC.
2. Heard the arguments of learned
counsel for the petitioner, learned High Court
Government Pleader for respondent No.1-State
and learned counsel for the respondent No.2.
3. The case of the prosecution in
nutshell in the charge-sheet is that CW.1-Manik
has filed first information to the Police on
04.04.2021 alleging that accused Nos.1 and 2 are
said to be staying at Hyderabad. They came in
contact with CW.2-Suresh in contractual business
where the accused Nos.1 and 2 are said to be
provided contract work to CW.2 and CW.2-Suresh
has paid Rs.1,21,53,900/- to accused Nos.1 and 2
towards commission. Thereafter, accused Nos.1
and 2 visited the office of CW.2 for demanding
further amount of Rs.3.00 crores as arrears of
commission. As it was Sunday, the office of CW.2
was closed. Then the accused persons proceeded
to the house of CW.2, but CW.2 was not in the
house. Again, the accused persons went near the
office of CW.2 for recovery of arrears of
commission. After getting information, CW.2 said
to be informed CW.1 and the deceased-Vicky who
is the driver of CW.2 to follow accused Nos.3 to 9
by having vigil over them. When the accused
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persons said to be on the way to the office,
CW.1 and the deceased said to be intercepted
the vehicle of accused No.3 and there was scuffle
between them i.e., a verbal quarrel in respect of
collection of money. Accused Nos.3 to 9 are said
to be informed CW.2 that he is yet to pay Rs.3.00
crores towards commission and they have come
over there to recover the same. At that time, there
was scuffle and quarrel between accused Nos.3 to
9, CW.1 and driver of CW.2 i.e. Vicky. During that
quarrel, one of the accused stabbed the deceased
with the knife and also assaulted CW.1, hence,
they shifted the deceased to the hospital where,
Vicky succumbed to the injuries and CW.1 was
survived. The police recorded his statement and
registered the FIR. The Police arrested accused
Nos.3 to 9 and remanded to the judicial custody. It
is also alleged that accused Nos.1 and 2
conspired with the other and sent accused Nos.3
to 9 for committing murder. Therefore, the incident
took place. The police investigated the matter and
filed the charge-sheet against accused Nos.1 to 9.
This petitioner is accused No.2 who is said to be
the son of accused No.1 is before this Court by
challenging the charge-sheet.
4. Learned counsel for the petitioner
has strenuously contended that there is no
conspiracy to commit murder of the deceased-
Vicky and there is no enmity between the
deceased-Vicky or CW.1-Manik. The accused
Nos.3 to 9 came only for recovery of the arrears of
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commission payable by CW.2-Suresh to accused
No.1. Absolutely, there is no preplan or intention
to commit murder of the deceased-Vicky who is a
driver CW.2. If at all they came for committing
murder, they could have assaulted CW.2 who has
to pay Rs.3.00 crores commission and there was
scuffle between the deceased and accused Nos.3
to 7 and accused Nos.3 and 4 stabbed the
deceased and CW.1. The names of the accused
No.2 was implicated only on the voluntary
statement of the co-accused person and
absolutely, there is no recovery or any material to
frame the charges against accused No.2 who is a
Software Engineer working in a company. He
further contended that even otherwise, if accused
No.1 sent accused Nos.3 to 9 for recovery of the
amount, but, not this petitioner, then, the question
of framing charges against this petitioner under
Section 120B does not arise. Hence, prayed for
quashing the criminal proceedings. In support of
his case, he has relied upon various judgments of
Hon’ble Supreme Court as well as High Court
which are as follows:
1. Vineet Kumar and Others vs. State of
Uttar Pradesh and Another reported in
(2017) 13 SCC 369.
2. Prashanth Bharti vs. State (NCT of
Delhi) -reported in (2013) 9 SCC 293.
3. Yogesh alias Sachin Jagdish Joshi
vs. State of Maharashtra reported in
(2008) 10 SCC 394.
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4. Central Bureau of Investigation vs.
Akhilesh Singh reported in (2005) 1
SCC 478.
5. Ashok B. Dani vs. State of Karnataka
by Malleshwaram Police Station
reported in 2014 (5) KCCR 1539.
5. Per contra, learned High Court
Government Pleader has contended that though
there is no previous conspiracy between this
petitioner and the co-accused, but, there was
conversation between accused No.3 and accused
No.2 where they discussed about the incident and
accused Nos.1 and 2 came to Bengaluru, where,
CW.2 got introduced himself for the purpose of
obtaining the new contract. Therefore, he has to
face the trial. Hence, prayed for dismissing the
petition.
6. Learned counsel for respondent
No.2 also objected the petition and contended that
if the accused Nos.3 to 5 came for collection of
money, but, why they brought weapon and this
reveals that they came with an intention to commit
murder of CW.2, but, unfortunately, they
committed murder of the deceased-Vicky who is
the driver of CW.2. After the commission of
murder, the accused persons contacted accused
No.1 and accused No.2 also had discussion with
accused Nos.3 to 9. Therefore, there is material
against him to show his involvement in the
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commission of murder of the deceased-Vicky.
Therefore, prayed for dismissing the petition.
7. Having heard the arguments and
on perusal of the records, on verifying the charge
sheet especially the statement of the witnesses
i.e., CW2 which reveals, accused Nos.1 and 2
came to Bengaluru in the year 2017 for the
purpose of contractual business and provided job
to CW.2 for development work. CW.2 said to be
paid some amount for accused No.1.
Subsequently, CW.2 required to pay more than
Rs.3.00 crores which was demanded by accused
No.1. CW.2 went on dodging in paying the money.
Therefore, at the instance of the accused No.1,
accused Nos.3 to 9 came to Bengaluru in a
vehicle bearing registration No.A.P. 39 BY 4779
Innova to the house of CW.2. At that time, CW.2
was not there in the house and therefore, accused
Nos.3 to 9 said to be went towards the office of
the CW.2. CW.2 said to be informed CW.1 and
the deceased-Vicky who is the driver of CW.2 to
follow up accused Nos.3 to 9 by having vigil over
them. When the accused persons said to be on
the way to the office, CW.1 and the deceased said
to be intercepted the vehicle of accused Nos.3 to
9 and there was scuffle between them i.e., a
verbal quarrel in respect of collection of money.
Accused Nos.3 to 9 are said to be informed CW.2
that he is yet to pay Rs.3.00 crores towards
commission and they have come over there to
recover t-he same. At that time, there was scuffle
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and sudden quarrel between CW.1 and driver of
CW.2 i.e. Vicky. During that quarrel, accused
Nos.3 and 4 stabbed the deceased-Vicky with
knife and also assaulted CW.1, hence, they
shifted the deceased to the hospital where, Vicky
succumbed to the injuries and CW.1 was
survived. After registering the FIR, the Police
arrested the accused Nos.3 to 9 and
subsequently, on the voluntary statement of the
accused Nos.3 to 9, this petitioner also implicated
as accused. Now coming to the material placed on
record which reveals, it is not in dispute, accused
No.1 had contractual business with CW.2 and
CW.2 is required to pay more than Rs.3.00 crores
of money towards commission for providing the
contract and there was a business/financial
dispute between them and accused No.1 is said to
have sent the employees and his friends to
Bengaluru for recovery of Rs.3.00 crores from
CW.2 and the voluntary statement of the accused
also reveals that the accused persons came for
recovery of the arrears of commission on behalf of
accused No.1. It is an admitted fact that there is
no intention or conspiracy to commit murder of
CW.2 or the deceased-Vicky or any other person
when accused Nos.3 to 9 came to Bengaluru. It is
also an admitted fact that the accused persons
came to the house of CW.2 and he was not
present in the house, therefore, they went towards
the office of CW.2 and on the way, CW.1 and the
deceased went in a motorbike and obstructed the
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vehicle of accused Nos.3 to 9 and there was
scuffle between them, during that scuffle and
sudden fight, accused Nos.3 and 4 said to be
stabbed the deceased- Vicky and also assaulted
CW.1, due to which, Vicky was died and CW.1
was survived. Absolutely, there is no material to
show that there was any conspiracy between
accused No.2 and accused Nos.3 to 9 for
committing murder of CW.2. If at all, they came for
committing murder of CW.2, there is no meaning
in assaulting the deceased-Vicky who is only a
driver of the CW.2 and CW.2 himself sent the
deceased to obstruct the vehicle and he went to
obstruct the vehicle of the accused Nos.3 to 9
where the quarrel took place and during the
quarrel, the deceased-Vicky was stabbed and
died. Therefore, it cannot be considered as a
motive or intention to commit murder of Vicky, the
accused persons came to Bengaluru. Admittedly,
they have not stabbed or attacked CW.2, but it is
the driver of the CW.2 and at that time, CW.2 also
not present and he came only after the incident.
Though the police build up the story, accused
Nos.1 and 2 conspired to commit murder, they
sent accused Nos.3 to 9 but there is no material
placed on record to show that this petitioner had
also sent accused Nos.3 to 9 for either recovery of
the money or to assault CW.2 or deceased
person. Absolutely, there is no material to connect
accused No.2 in the crime except the voluntary
statement of the co-accused.
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8. That apart, it is mentioned by the
Police in the records after the commission of
murder, the accused No.3 contacted accused
No.1, at that time, accused No.2 also telephoned
and had discussion with accused No.1. But no
material collected that it is accused No.2 who has
directly contacted CW.2 for demanding arrears of
commission or he has sent accused Nos.3 to 9 for
recovery of the money or to commit murder of
CW.2 or the deceased. Absolutely, there is no link
between accused No.2 and the crime occurred at
Bengaluru as it was quarrel between CW.1, the
deceased and CW.2, and accused Nos.3 to 9
while killing the deceased and it cannot be said
that the alleged offence is culpable homicide
amounting to murder which comes under the
purview of Section 302 of IPC.
9. CW.6-Vadde Harinath who has
given statement under Section 164 of Cr.P.C.
before the Magistrate who is the driver of the car
belongs to accused Nos.3 to 9 has also
categorically stated that he was worked as a
driver, they engaged the car for coming to
Bengaluru for recovery of money and they went to
the house of CW.2, at that time, the deceased and
CW.1 came and intercepted their car. Accused
Nos.3 and 4 told to come for the talks, but, the
deceased and CW.1 said to be behaved roughly
and there was quarrel between them. At that time,
accused No.4 stabbed the deceased-Vicky and
accused No.4 wanted to stab the complainant,
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but, the complainant escaped from the attack of
the accused persons and the deceased was
assaulted instead and thereafter the accused
persons ran away from the spot. On perusal of the
statement of CW.6, the driver of the vehicle who
has categorically stated that the accused persons
came for only recovery of the money and during
the quarrel, they assaulted the deceased. He is
the eye witness as well as material witness to the
incident and even the police has not recovered
any CDR to show that this petitioner- accused
No.2 contacted accused Nos.3 to 9 at any point of
time either prior to the incident or after the
incident. Absolutely, there is no link between the
petitioner and accused Nos.3 to 9. Accused No.2
has been implicated only because he is the son of
accused No.1. Therefore, it cannot be said that
this petitioner was involved in the commission of
either murder or conspiracy or abetting the other
accused to commit murder of Vicky.
10. The learned counsel for the
petitioner has relied upon the judgment in the
case of Vineet Kumar and Others stated supra,
wherein, the Hon’ble Supreme Court by relying
upon the judgment in the case of State of
Haryana vs. Bhajan Lal reported in 1992 SCC
(Cri) 426 has held at paragraph Nos.24, 25, 26,
27, 28 and 29 which are as under:
“24. The judgment of this Court in State
of Haryana v. Bhajan Lal has elaborately
considered the scope and ambit of Section
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482 CrPC. Although in the above case this
Court was considering the power of the
High Court to quash the entire criminal
proceeding including the FIR, the case
arose out of an FIR registered under
Sections 161,165 IPC and Section 5(2) of
the Prevention of Corruption Act, 1947.
This Court elaborately considered the
scope of Section 482 CrPC/Article 226 of
the Constitution in the context of quashing
the proceedings in criminal investigation.
After noticing various earlier
pronouncements of this Court, this Court
enumerated certain categories of cases by
way of illustration where power under
Section 482 CrPC can be exercised to
prevent abuse of the process of the Court
or secure the ends of justice.
25. Para 102 which enumerates 7
categories of cases where power can be
exercised under Section 482 CrPC is
extracted as follows: (Bhajan Lal case,
SCC pp. 378-79)“102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extraordinary power
under Article 226 or the inherent powers
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under Section 482 of the Code which we
have extracted and reproduced above, we
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any court or otherwise to
secure the ends of justice, though it may
not be possible to lay down any precise,
clearly defined and sufficiently channelised
and inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad
kinds of cases wherein such power should
be exercised.
(1) Where the allegations made in
the first information report or the
complaint, even if they are taken at their
face value and accepted in their entirety
do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not
disclose a cognizable offence, justifying an
investigation by police officers under
Section 156(1) of the Code except under
an order of a Magistrate within the purview
of Section 155(2) of the Code.
(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of
the same do not disclose the commission
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of any offence and make out a case
against the accused.
(4) Where the allegations in the FIR
do not constitute a cognizable offence but
constitute only a non-cognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground for proceeding against the
accused.
(6) Where there is an express legal
bar engrafted in any of the provisions of
the Code or the Act concerned (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the Act
concerned, providing efficacious redress
for the grievance of the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
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with a view to spite him due to private and
personal grudge.”
26. A three-Judge Bench in State of
Karnataka v. M. Devendrappa had the
occasion to consider the ambit of Section
482 CrPC. By analysing the scope of
Section 482 CrPC, this Court laid down
that authority of the Court exists for
advancement of justice and if any attempt
is made to abuse that authority so as to
produce injustice the Court has power to
prevent abuse. It further held that Court
would be justified to quash any proceeding
if it finds that initiation/continuance of it
amounts to abuse of the process of court
or quashing of these proceedings would
otherwise serve the ends of justice. The
following was laid down in para 6: (SCC p.
94)
“6. … All courts, whether civil or
criminal possess, in the absence of any
express provision, as inherent in their
constitution, all such powers as are
necessary to do the right and to undo a
wrong in course of administration of justice
on the principle quando lex aliquid alicui
concedit, concedere videtur et id sine quo
res ipsae esse non potest (when the law
gives a person anything it gives him that
without which it cannot exist). While
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exercising powers under the section, the
court does not function as a court of
appeal or revision. Inherent jurisdiction
under the section though wide has to be
exercised sparingly, carefully and with
caution and only when such exercise is
justified by the tests specifically laid down
in the section itself. It is to be exercised ex
debito justitiae to do real and substantial
justice for the administration of which
alone courts exist. Authority of the court
exists for advancement of justice and if
any attempt is made to abuse that
authority so as to produce injustice, the
court has power to prevent abuse. It would
be an abuse of process of the court to
allow any action which would result in
injustice and prevent promotion of justice.
In exercise of the powers court would be
justified to quash any proceeding if it finds
that initiation/continuance of it amounts to
abuse of the process of court or quashing
of these proceedings would otherwise
serve the ends of justice. When no
offence is disclosed by the complaint, the
court may examine the question of fact.
When a complaint is sought to be
quashed, it is permissible to look into the
materials to assess what the complainant
has alleged and whether any offence is
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made out even if the allegations are
accepted in toto.”
27. Further in para 8 the following
was stated: (Devendrappa case [State of
Karnataka v. M. Devendrappa, (2002) 3
SCC 89 : 2002 SCC (Cri)
539] , SCC p. 95)
“8. … Judicial process should not be an
instrument of oppression, or, needless
harassment. Court should be circumspect
and judicious in exercising discretion and
should take all relevant facts and
circumstances into consideration before
issuing process, lest it would be an
instrument in the hands of a private
complainant to unleash vendetta to harass
any person needlessly. At the same time
the section is not an instrument handed
over to an accused to short-circuit a
prosecution and bring about its sudden
death. The scope of exercise of power
under Section 482 of the Code and the
categories of cases where the High Court
may exercise its power under it relating to
cognizable offences to prevent abuse of
process of any court or otherwise to
secure the ends of justice were set out in
some detail by this Court in State of
Haryana v. Bhajan Lal [State of Haryana v.
Bhajan Lal, 1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426].”
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28. In Sunder Babu v. State of T.N.
[Sunder Babu v. State of T.N., (2009) 14
SCC 244 : (2010) 1 SCC (Cri) 1349] , this
Court was considering the challenge to the
order of the Madras High Court where
application was under Section 482 CrPC
to quash criminal proceedings under
Section 498-A IPC and Section 4 of the
Dowry Prohibition Act, 1961. It was
contended before this Court that the
complaint filed was nothing but an abuse
of the process of law and allegations were
unfounded. The prosecuting agency
contested the petition filed under Section
482 CrPC taking the stand that a bare
perusal of the complaint discloses
commission of alleged offences and,
therefore, it is not a case which needed to
be allowed. The High Court accepted the
case of the prosecution and dismissed
the application. This Court referred to the
judgment in Bhajan Lal case [State of
Haryana v. Bhajan Lal, 1992 Supp (1)
SCC 335 : 1992 SCC (Cri) 426] and held
that the case fell within Category 7. The
Apex Court relying on Category 7 has held
that the application under Section 482
deserved to be allowed and it quashed the
proceedings.
29. In another case in Priya Vrat Singh
v. Shyam Ji Sahai [Priya Vrat Singh v.
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Shyam Ji Sahai, (2008) 8 SCC 232 :
(2008) 3 SCC (Cri) 463] , this Court relied
on Category 7 as laid down in State of
Haryana v. Bhajan Lal [State of Haryana v.
Bhajan Lal, 1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426]. In the above case the
Allahabad High Court had dismissed an
application filed under Section 482 CrPC
to quash the proceedings under Sections
494, 120-B and 109 IPC and Sections 3
and 4 of the Dowry Prohibition Act. After
noticing the background facts and
parameters for exercise of power under
Section 482 CrPC the following was stated
in paras 8 to 12: (Priya Vrat case [Priya
Vrat Singh v. Shyam Ji Sahai, (2008) 8
SCC 232 : (2008) 3 SCC (Cri) 463] , SCC
pp. 235-36)
“8. Further, it is pointed out that the
allegation of alleged demand for dowry
was made for the first time in December
1994. In the complaint filed, the
allegation is that the dowry torture was
made sometime in 1992. It has not been
explained as to why for more than two
years no action was taken.
9. Further, it appears that in the
complaint petition apart from the husband,
the mother of the husband, the
subsequently married wife, husband’s
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mother’s sister, husband’s brother-in-law
and Sunita’s father were impleaded as
party. No role has been specifically
ascribed to anybody except the husband
and that too of a dowry demand in
February 1993 when the complaint was
filed on 6-12-1994 i.e. nearly after 22
months. It is to be noted that in spite of
service of notice, none has appeared on
behalf of Respondent 1.
10. The parameters for exercise of
power under Section 482 CrPC have been
laid down by this Court in several cases
[Ed.: The reference seems inter alia to be
to Sunder Babu v. State of T.N., (2009) 14
SCC 244 : (2010) 1 SCC (Cri) 1349 and
Engg. Export Promotion Council v. Usha
Anand,(2013) 12 SCC 620 : (2014) 4 SCC
(Cri) 441] .
11. ’19. The section does not confer
any new power on the High Court. It only
saves the inherent power which the Court
possessed before the enactment of the
Code. It envisages three circumstances
under which the inherent jurisdiction may
be exercised, namely, (i) to give effect to
an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is
neither possible nor desirable to lay down
any inflexible rule which would govern the
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exercise of inherent jurisdiction. No
legislative enactment dealing with
procedure can provide for all cases that
may possibly arise. Courts, therefore, have
inherent powers apart from express
provisions of law which are necessary for
proper discharge of functions and duties
imposed upon them by law. That is the
doctrine which finds expression in the
section which merely recognises and
preserves inherent powers of the High
Courts. All courts, whether civil or
criminal, possess, in the absence of any
express provision, as inherent in their
constitution, all such powers as are
necessary to do the right and to undo a
wrong in course of administration of justice
on the principle quando lex aliquid alicui
concedit, concedere videtur id sine quo res
ipsa esse non potest (when the law gives
a person anything it gives him that without
which it cannot exist). While exercising
powers under the section, the Court does
not function as a court of appeal or
revision. Inherent jurisdiction under the
section though wide has to be exercised
sparingly, carefully and with caution and
only when such exercise is justified by the
tests specifically laid down in the section
itself. It is to be exercised ex debito
justitiae to do real and substantial justice
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for the administration of which alone courts
exist. Authority of the court exists for
advancement of justice and if any attempt
is made to abuse that authority so as to
produce injustice, the court has power to
prevent abuse. It would be an abuse of
process of the court to allow any action
which would result in injustice and
prevent promotion of justice. In exercise of
the powers court would be justified to
quash any proceeding if it finds that
initiation/continuance of it amounts to
abuse of the process of court or quashing
of these proceedings would otherwise
serve the ends of justice.
20. As noted above, the powers
possessed by the High Court under
Section 482 of the Code are very wide and
the very plenitude of the power requires
great caution in its exercise. Court must be
careful to see that its decision in exercise
of this power is based on sound principles.
The inherent power should not be
exercised to stifle a legitimate prosecution.
The High Court being the highest court of
a State should normally refrain from giving
a prima facie decision in a case where the
entire facts are incomplete and hazy, more
so when the evidence has not been
collected and produced before the Court
and the issues involved, whether factual or
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legal, are of magnitude and cannot be
seen in their true perspective without
sufficient material. Of course, no hard-and-
fast rule can be laid down in regard to
cases in which the High Court will exercise
its extraordinary jurisdiction of quashing
the proceeding at any stage.´
(See Janata Dal v. H.S. Chowdhary
[Janata Dal v. H.S. Chowdhary, (1992) 4
SCC 305 : 1993 SCC (Cri) 36] ,
Raghubir Saran v. State of Bihar
[Raghubir Saran v. State of Bihar, AIR
1964 SC 1 : (1964) 1 Cri LJ 1] and Minu
Kumari v. State of Bihar [Minu Kumari v.
State of Bihar, (2006) 4 SCC 359 : (2006)
2 SCC (Cri) 310] , SCC p. 366,paras 19-
20.)
12. The present case appears to be
one where Category 7 of the illustrations
given in State of Haryana v. Bhajan Lal
[State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426]
is clearly applicable.”
11. In another judgment in the case of
Prashanth Bharti Vs. State (NCT of Delhi)
stated supra, the Hon’ble Supreme Court at
paragraph No.22 has held as under:
“22. The proposition of law, pertaining
to quashing of criminal proceedings,
initiated against an accused by a High
Court under Section 482 of the Code of
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Criminal Procedure (hereinafter referred to
as “CrPC“) has been dealt with by this
Court in Rajiv Thapar v. Madan Lal Kapoor
[Rajiv Thapar v. Madan Lal Kapoor, (2013)
3 SCC 330 : (2013) 3 SCC (Cri) 158]
wherein this Court inter alia held as under:
(SCC pp. 347-49, paras 29-30)
“29. The issue being examined in the
instant case is the jurisdiction of the
High Court under Section 482 CrPC, if
it chooses to quash the initiation of the
prosecution against an accused at the
stage of issuing process, or at the
stage of committal, or even at the
stage of framing of charges. These are
all stages before the commencement
of the actual trial. The same
parameters would naturally be
available for later stages as well. The
power vested in the High Court under
Section 482 CrPC, at the stages
referred to hereinabove, would have
far-reaching consequences, inasmuch
as it would negate the prosecution’s/
complainant’s case without allowing
the prosecution/complainant to lead
evidence. Such a determination must
always be rendered with caution, care
and circumspection. To invoke its
inherent jurisdiction under Section 482
CrPC the High Court has to be fully
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satisfied that the material produced by
the accused is such that would lead to
the conclusion that his/their defence is
based on sound, reasonable, and
indubitable facts; the material
produced is such as would rule out
and displace the assertions contained
in the charges levelled against the
accused; and the material produced is
such as would clearly reject and
overrule the veracity of the allegations
contained in the accusations levelled
by the prosecution/complainant. It
should be sufficient to rule out, reject
and discard the accusations levelled
by the prosecution / complainant,
without the necessity of recording any
evidence. For this the material relied
upon by the defence should not have
been refuted, or alternatively, cannot
be justifiably refuted, being material of
sterling and impeccable quality. The
material relied upon by the accused
should be such as would persuade a
reasonable person to dismiss and
condemn the actual basis of the
accusations as false. In such a
situation, the judicial conscience of the
High Court would persuade it to
exercise its power under Section 482
CrPC to quash such criminal
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proceedings, for that would prevent
abuse of process of the court, and
secure the ends of justice.
30. Based on the factors
canvassed in the foregoing paragraphs,
we would delineate the following steps
to determine the veracity of a prayer for
quashing raised by an accused by
invoking the power vested in the High
Court under Section 482 CrPC:
30.1.Step one: whether the material
relied upon by the accused is sound,
reasonable, and indubitable i.e. the
material is of sterling and impeccable
quality?
30.2Step two: whether the material
relied upon by the accused would rule
out the assertions contained in the
charges levelled against the accused
i.e. the material is sufficient to reject
and overrule the factual assertions
contained in the complaint i.e. the
material is such as would persuade a
reasonable person to dismiss and
condemn the factual basis of the
accusations as false?
30.3. Step three: whether the
material relied upon by the accused has
not been refuted by the
prosecution/complainant; and/or the
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material is such that it cannot be
justifiably refuted by the
prosecution/complainant?
30.4. Step four: whether
proceeding with the trial would result in
an abuse of process of the court, and
would not serve the ends of justice?
30.5. If the answer to all the
steps is in the affirmative, judicial
conscience of the High Court should
persuade it to quash such criminal
proceedings in exercise of power
vested in it under Section 482 CrPC.
Such exercise of power, besides doing
justice to the accused, would save
precious court time, which would
otherwise be wasted in holding such a
trial (as well as proceedings arising
therefrom) specially when it is clear that
the same would not conclude in the
conviction of the accused.”
12. The another judgment in the case
of Yogesh alias Sachin Jagdish Joshi stated
supra, the Hon’ble Supreme Court has discharged
the accused persons in the similar circumstances.
In another judgment of Hon’ble Supreme Court in
the case of Central Bureau of Investigation
stated supra, the Hon’ble Supreme Court has
taken similar view and the High Court order has
been upheld by the Hon’ble Supreme Court.
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13. In the case Ashok B. Dani stated
supra, a similar view has been taken by the Co-
ordinate Bench of this Court in a similar set of
facts and acquitted the accused.
14. On perusal of the judgment of the
Hon’ble Supreme Court in the above said cases to
the facts and circumstances of the case, where,
except a voluntary statement of the co-accused
saying that this petitioner- accused came to
Bengaluru along with accused No.1 in the year
2017, there is no material collected by the
Investigating Officer to connect the accused with
the crime and even accused Nos.3 to 9 came to
Bengaluru at the instance of accused No.1 for
recovery of arrears of commission and there is
no allegation against this petitioner that this
petitioner sent those accused persons and also
accused No.3 contacted accused No.1 after the
incident, but not this petitioner and no CDR
produced to show that this petitioner contacted
accused Nos.3 to 9 in respect of either prior to the
commission of offence or after the commission of
offence. Therefore, it clearly reveals that the
petitioner being the son of accused No.1 has been
falsely implicated by the police at the instance of
CW.2. It is also admitted that CW.2 did not lodge
any complaint and he has narrated the incident
only after the commission of incident by hearing
the same from CW.1. Therefore, considering the
fact as held by the Hon’ble Supreme Court in the
case of State of Haryana vs. Bhajan Lal and
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other cases stated supra, absolutely, there is no
material on record to connect the accused with the
crime either to frame charges under Section 120B
or 109 or 302 read with Section 149 of IPC.
Therefore, I am of the view, conducting
proceedings against this petitioner-accused No.2
is nothing but abuse of process of law and the
same is liable to be quashed.
15. Accordingly, the petition is allowed.
The criminal proceedings against accused
No.2 in S.C.No.1379/2022 pending on the file of
LXV Additional City Civil and Sessions Judge,
Bengaluru (CCH-66) is hereby quashed.”
6. As stated supra, in the instant case, the material on
record clearly indicates that the presence or participation of the
petitioner/accused No.7 cannot be discerned either from the FIR
charge sheet or statement of witnesses or other documents and
the petitioner is arraigned as an accused solely based on the
voluntary statement of co-accused which is impressible in law and
consequently in the light of the principle enunciated in the aforesaid
judgments, I am of the view of that continuation of the impugned
proceedings qua the present petitioner/accused No.7 amounts to
abuse of process of law warranting interference in the present
petition.
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7. In the result, I pass the following:
ORDER
(i) Petition is hereby allowed.
(ii) The proceedings in C.C.No.5210/2024 (arising out of
Cr.No.203/2024) registered by the 1st respondent – Police, pending
on the file of 1st Additional Civil Judge and JMFC, Hassan for the
offences punishable under Sections 103(1), 189(2), 190, 191(2),
191(3), 329(4), 54, 61(1) of BNS, 2023 insofar as the
petitioner/accused No.7 is concerned are hereby quashed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
HJ
List No.: 2 Sl No.: 9