Karnataka High Court
Nappate Refiq @ Moahmmad Rafiq vs The State Of Karnataka on 30 June, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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CRL.P No. 6584 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO.6584 OF 2025 (482(Cr.PC) / 528(BNSS)
BETWEEN:
1. NAPPATE REFIQ @ MOAHMMAD RAFIQ
S/O D.UMMAR,
AGED ABOUT 36 YEARS,
OCC: COOLIE,
R/AT NO.ATTEGOLLE HOUSE,
KAIYYAR VILLAGE, UPPALA,
KASARGODU DISTRICT - 671 322.
PRESENT ADDRESS:
PAIVALIKE BIG MASJID NEAR
SHAKIR HOUSE, PAIVALIKE VILLAGE,
MAJESHWARA TALUKA,
KASARGODU DISTRICT - 671 322.
2. IQBAL @ MOHAMMAD IQBAL
S/O IBRAHIM
AGED ABOUT 31 YEARS,
OCC: AUTO DRIVER
Digitally R/AT POYYKANDAA HOUSE, KANYAN VILLAGE,
signed by BANTWALA TALUK, D.K-574279.
CHANDANA
BM ...PETITIONERS
Location:
(BY SRI. DINESHKUMAR RAO K., ADVOCATE)
High Court AND:
of Karnataka
1. THE STATE OF KARNATAKA
BY VITTAL POLICE STATION,
VITLA, D.K DISTRICT - 574 243
(REPRESENTED BY
STATE BY PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU - 560 001)
2. ABDUL AJEEJ,
S/O MOHAMMED SHAFI,
AGED ABOUT 35 YEARS,
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R/AT-AMBIKAANA PAAKA HOUSE,
PAIVALIKE VILLAGE, MANJESHWARA TALUK
KASARGOD DISTRICT,
KERLA-671 323
...RESPONDENTS
(BY SRI. JAGADEESHA. ADDL.SPP FOR R-1)
THIS CRL.P IS FILED U/S.482 (FILED U/S.528 BNSS) CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE
PETITIONER IN S.C.NO.120/2019 (CHARGE SHEETED FOR OFFENCE
P/U/S 143, 147, 148, 120-B, 324, 341, 307, 302, 201 AND 212 R/W SEC.149
OF IPC AND PENDING ON THE FILE OF THE VI ADDL. DIST. AND
SESSIONS JUDGE, D.K.
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, petitioners seek quashing of the proceedings
in S.C.No.120/2019 arising out of Crime No.181/2015 registered by
the 1st respondent – police, pending on the file of the VI Addl.
District & Sessions Judge, D.K., Mangalore, for the offences
punishable under Sections 143, 147, 148, 120B, 324, 341, 307,
302, 201 and 212 r/w 149 of IPC.
2. Heard learned counsel for the petitioners and learned
HCGP for respondent No.1 and perused the material on record.
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3. A perusal of the material on record will indicate that the
petitioners viz Nappate Rafiq @ Mohammad Rafiq. and Iqbal @
Mohammad Iqbal was arraigned as accused Nos.1 and 8 in
S.C.No.120/2019 along with accused Nos.2 to 7, pursuant to FIR in
Crime No.181/2015. The offences alleged against the petitioners
and other accused are under Sections 143, 147, 148, 120B, 324,
341, 307, 302, 201 and 212 r/w 149 of IPC.
4. In this context, learned counsel for the petitioner
invited my attention to the order of this Court passed in
Crl.P.No.578/2024 dated 21.02.2025 in order to point out that in
view of quashment of criminal proceedings qua accused No.5, the
present petitioners who are accused Nos.1 and 8 in
S.C.No.120/2019 would also be entitled to seek parity.
5. This Court in the case of Adrama @ Adrama @
Harris Vs. The State of Karnataka and another –
Crl.P.No.578/2024 dated 21.02.2025, quashed the criminal
proceedings qua accused No.5 (in C.C.No.1123/2016) and held as
under:
“In this petition, petitioner seeks quashing the
proceedings in C.C.No.1123/2016 on the file of ACJ
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and JMFC, Bantwal, D.K. District for the offences
punishable under Sections 120B, 324, 341, 145, 147,
148, 307, 302, 201 and 212 r/w 149 of IPC in Crime
No.181/2015 of Vitla Police Station.
2. Heard learned counsel for the petitioner
and learned High Court Government Pleader for
respondent No.1 and perused the material on record.
3. A perusal of the material on record will
indicate that the petitioner Adrama @ Adrama @
Harris, was arraigned as accused No.5 along with
seven others who were arraigned as accused Nos.2
to 4, 6 and 7 in the charge sheet pursuant to FIR in
Crime No.181/2015. The offence alleged against the
petitioner and other accused are under Sections
120B, 324, 341, 145, 147, 148, 307, 302, 201 and
212 r/w 149 of IPC.
4. In this context, learned counsel for the
petitioner invited my attention to S.C.No.99/2016, in
which the Sessions Court passed judgment dated
21.01.2021 acquitting other accused except
petitioner against whom split up charge sheet is filed
and renumbered as C.C.No.1123/2016, which is the
present case. On the ground of parity accused to be
acquitted as held by this Court in the case of Mohan
Vs. State of Karnataka and Anr.1 in which it was
held that acquittal of co-accused by the Sessions1
Crl.P.No.5376/2024 dated 19.09.2024
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Court would enure to the benefit of the petitioner as
under:
“The petitioner – accused No.6 is knocking at
the doors of this Court in the subject petition
calling in question a split charge sheet drawn
against him in S.C.No.96/2022 registered for
offences punishable under Sections 399 and 402
of the IPC.
2. Heard Sri. Lakshmikanth K., learned
counsel appearing for the petitioner and
Smt.Sowmya R., learned HCGP appearing for the
respondents.
3. Facts in brief, germane, are as follows:
On the night of 14.02.2015, an alleged
incident leads the petitioner along with others for
registration of a crime for offences punishable
under Sections 399 and 402 of the IPC in Crime
No.306/2015. The petitioner is arrayed as
accused No.6. The police after investigation file a
charge sheet in the said matter and the
concerned Court registers S.C.No.423/2015. The
petitioner – accused No.6 at the relevant point in
time was not available for trial and therefore, the
concerned Court tried the other accused and
acquitted them on the score that the prosecution
has failed to prove the guilt beyond all reasonable
doubt. On account of non-availability of the
petitioner, the concerned Court draws up a split
charge sheet in S.C.No.96/2022 and now is
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wanting to continue the trial for the aforesaid
offences.
4. Learned counsel appearing for the
petitioner submits that the petitioner would also
get acquitted, if trial is permitted in the case at
hand and therefore, seeks quashment of the
same on the score of parity.
5. Learned HCGP would however refute
the submissions to contend that the petitioner has
escaped trial and should not be shown any
indulgence and he should come out clean in a full
blown trial, as the other accused have come out
clean. She would seek dismissal of the petition.
6. I have given my anxious consideration
to the respective submissions made by the
learned counsel and have perused the material on
record.
7. The afore-narrated facts are not in
dispute. The petitioner not being available for
trial at the relevant point in time is a matter of
record. Therefore, it becomes necessary to notice
what is the finding qua the acquittal of other
accused by the Court of Sessions in terms of its
judgment dated 08.08.2022. The reason so
rendered are as follows:
“17. No doubt, as submitted by the learned
Public Prosecutor, during the course of cross
examination of PW-1 to 3, except denial, nothing is
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elicited whether there is any enmity between these
accused and PW-1 to 3 to incriminate in this case.
But, this proceeding came to be initiated at
suomoto at their own instant. Even, according to
the case of the prosecution, these accused were
preparing for committing dacoity in the public place
at about 9-15 pm. When such being the case, in the
absence of corroborative evidence, by any one of
the independent panch witness or eyewitnesses,
solely based on the evidence of these police officers
PW-1 to 3, who are the interested witnesses, it
cannot be held that the prosecution has proved the
guilt of the accused beyond reasonable doubt.
Therefore, the prosecution has not placed any
consisting and corroborative evidence to prove any
of the alleged charges levelled against this accused
No.4. Hence, it creates a serious doubt about the
involvement of this accused in the alleged incident.
Under all these circumstances, in my considered
view, the prosecution has utterly failed to prove
the guilt of the accused No.4 by producing
consisting and corroborative evidence beyond
reasonable doubt. Therefore, without any
alternative, the benefit of doubt should be extended
to these accused No.4 and he is entitled for
acquittal. In view of the aforesaid reasons, I answer
point Nos. 1 and 2 in the “Negative”
18. POINT NO.3:- In the result, for the
reasons stated above, I proceed to pass the
following:-
ORDER
The accused No.4 is found not guilty.
Hence, by acting under section 235(1) of Cr.P.C.,
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the accused No.4 is hereby acquitted for the
offences punishable under sections 399 and 402
of Indian Penal Code.
The bail bond of the accused No.4 and his
surety stand canceled.
The original record and also M.O.1 to 5
may be retained till disposal of the split up case
registered against accused Nos.1 to 3, 5 and 6.”
8. The offence alleged is preparation for
commission of a dacoity, it is a collective act of all
the accused as is alleged. Therefore, the acquittal
of accused Nos.1 to 5 would undoubtedly enure to
the benefit of the petitioner, as eventually he
would get acquitted. Therefore, permitting
further trial against the petitioner for the
eventuality of getting acquitted in the light of the
acquittal of accused Nos.1 to 5 would only be a
waste of precious judicial time. Therefore, I deem
it appropriate to obliterate the proceedings
against the petitioner.
9. The view of mine, in this regard, is
fortified by the judgment rendered by a Co-
ordinate Bench of this Court in Crl.P.4796/2017,
wherein the Co-ordinate Bench considering
identical set of facts has held as follows:
“12. Having heard the learned Advocates
appearing for parties and on perusal of records it
would disclose that petitioner/accused was never
traced and non-bailable warrant issued against him
was never executed. Hon’ble Apex Court in the case
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of CENTRAL BUREAU OF INVESTIGATION vs
AKHILESH SINGH reported in AIR 2005 SCC 268
has held quashing of charge and order discharging
co-accused can be passed, if the proceedings
initiated against co-accused is on similar allegations
and if said judgment had reached finality. It is also
held that discharge of a co-accused by the High
Court by holding that no purpose would be served
in further proceeding with the case, is just and
proper. In another ruling in MOHAMMED ILIAS vs.
STATE OF KARNATAKA reported in (2001) 3
Kant LJ 551 this Court has held as under:
“The petitioner is the accused in the case
and he is shown to be the absconding. Therefore,
the case against the petitioner was split up and
charge-sheet was laid against other available
accused Nos.1 and 3 for committing an offence
punishable under Sections 498A and 307 IPC r/w
34 Indian Penal Code, 1860. After the trial, the
Sessions Judge acquitted the accused Nos.1 to 3.
The petitioner was arrested and proceedings were
revived against him in the split charge sheet…. In
the instant case also, the full pledged trial was
held against accused Nos.1 to 3, in respect of the
same offence. In the second round of trial against
the petitioner, the evidence to be produced
cannot be different from the one that was
produced by the prosecution in the earlier case.
Therefore, in that view of the matter, the
proceeding is quashed.”
13. Yet, in another ruling THE STATE
OF KARNATAKA vs. K.C.NARASEGOWDA
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reported in ILR 2005 Kar. 1822 this Court has
held to the following effect:
“As the case before the Sessions Judge is
not a pending case, he cannot keep the file any
longer pending nor he can close the case as he
has to await appearance of the accused or the
production by the State, for passing orders
regarding undergoing sentence. As such,
considering these peculiar facts and
circumstances, it is deemed proper to exercise
the inherent jurisdiction under Section 482 of
Cr.P.C. instead of jurisdiction under Section 385
of Cr.P.C. in the interest of justice. As the entire
material evidence of the prosecutions is one and
the same, as against all the accused including the
non-appealing accused No.1, who is said to be
absconding, there is no second opinion that he is
also entitled for the same benefit of doubt as he
is extended for his co-accused. Accused acquitted
by giving benefit of doubt.”
14. In this background, when the facts on
hand are examined, it would clearly indicate that
not only complainant but also other witnesses
including the inmates of ambulance in which they
were travelling on the date of incident, had turned
hostile in the proceedings which was continued
against co-accused. Though, P.W.1 – complainant
had admitted that he has lodged a compliant as per
Ex.P-1 and had also admitted that he has given a
statement identifying the accused before the
Investigation Officer, he did not identify the accused
persons present before Court. In fact, statements
given by him as per Exs.P-2 to P-4 when
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confronted, he denied the same and had also
denied the suggestion put by the public prosecutor
that he had furnished the statements as per Exs.P-2
to P-4 as false. P.W.2 to P.W.8 had not identified
the accused persons present before the
jurisdictional Sessions Court. In fact, they have not
even identified the statements made by them
before the Investigating Officer and nothing
worthwhile has been elicited in their cross-
examination to disbelieve their evidence. Thus,
taking into consideration said evidence available on
record Sessions Court had arrived at a conclusion
that evidence of the witnesses examined by
prosecution would not come to their assistance. In
fact, witnesses to the seizure panchnama – Ex.P-
40, who were examined as P.W.16 and P.W.17,
have also turned hostile and they have stated that
police had called them a year back to the police
station and when they went to the police station,
they had not seen any accused persons in police
station. However, they admit police having taken
their signatures on the papers and contents of it
were not known to them.
15. It is in this background, trial Court on
appreciation of entire evidence had acquitted all the
accused persons by holding that prosecution had
failed to prove the offence alleging accused persons
beyond reasonable doubt attracting the ingredients
of provisions of the offence alleged against them. In
fact, Sessions Court has observed that there was
certain communal disturbance in Dakshina Kannada
district and other places at Bantwal Taluk and to
please on community of people, the Investigating
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Officer might have falsely implicated the accused
persons in a false case or to avoid the blame to be
received from the public or other community people
and such possibilities cannot be ruled out. In this
background, when prayer of petitioner sought for in
the present petition is examined, it can be noticed
that contents of supplementary charge sheet filed
against the petitioner is similar, identical and in
fact, it is replica of charge made against accused
Nos.1 to 23 and 25 to 33, who15 were tried in
S.C.No.12/2007, 94/2007 and 26/2008 and had
been acquitted.
16. In that view of the matter, this Court is
of the firm view that judgment rendered by trial
Court insofar as it relates to accused Nos.1 to 23
and 25 to 33 is similar and identical to the charge
made against the present petitioner. This Court
does not find any independent or separate material
having been placed by the prosecution against
present petitioner to put him on trial once again and
directing the petitioner-accused to undergo the
order of trial, which ultimately would fetch same
result as that of accused Nos.1 to 23 and 25 to 33.
When allegation made against accused Nos.1 to 23
and 25 to 33 is compared with the allegation made
against present petitioner, it has to be necessarily
held that they are identical, similar and inseparable
in nature and no independent decision can be taken
against the present petitioner. Therefore, no
purpose would be served even if the present
petitioner is ordered to be tried by the trial Court.
17. In view of the afore stated facts and the
law laid down, as discussed hereinabove, it would
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emerge that there would be no harm or injustice
that would be caused to prosecution if benefit of
acquittal order is passed in favour of accused –
petitioner, since accused Nos.1 to 23 and 25 to 33
against whom similar allegation had been made is
already acquitted. Though, it is contended by Sri.
Rachaiah, learned HCGP appearing for the State
that petitioner should not be extended said benefit,
since he is an absconder, by relying upon judgment
of Coordinate Bench this Court is not inclined to
accept said contention for single reason that said
judgment had been rendered based on the
judgment of Apex Court in the case of DEEPAK
RAJAK vs. STATE OF WEST BENGAL reported in
(2007) 15 SCC 305 where under Apex Court after
noticing the facts obtained in the said case, had
held that benefit of acquittal, should be extended to
the appellant, since co-accused had been acquitted
and held that a departure can be made in cases
where accused has not surrendered “after
conviction” in addition to not filing an appeal
against the conviction. As such, noticing earlier
position of law laid down it was held by the Apex
Court that in case of acquittal of a accused for
same offence on same set of facts and on similar
accusations, if considered, it would entile for
acquittal of co-accused also.
18. In that view of the matter, present
proceedings initiated against petitioner is liable to
be quashed.
Hence, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
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(ii) Proceedings in C.C.No.1170/2007
pending on the file of Addl. Civil Judge
& JMFC, Bantwal, in Cr.No.130/2006
registered by Bantwal Rural Police
Station, is hereby quashed insofar
petitioner is concerned.
In view of criminal petition having been disposed of
on merits, I.A.No.1/2017 for stay does not survive
for consideration and same stands rejected.”
The Co-ordinate Bench was considering a
case where the co-accused who had escaped trial
had not surrendered or was not arrested by the
police.
10. In the light of there being no evidence
against any of the accused and the split up charge
against the petitioner being tried now before the
learned Sessions Judge would become an exercise
in futility. In the teeth of there being no evidence
or a specific charge against this petitioner, that
was not charged against others, I deem it
appropriate to obliterate the proceedings against
the petitioner.
11. For the aforesaid reasons, I pass the
following:
ORDER
i. Criminal Petition is allowed.
ii. Proceedings in S.C.No.96/2022
pending before the LVIII Additional
City Civil and Sessions Judge,
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Bangalore (CCH-59), stand quashed,
qua the petitioner.”
5. In the instant case, it is undisputed fact
that accused Nos.2 to 4, 6 and 7 have been acquitted
by the trial Court and consequently, by applying
doctrine of parity, proceedings against accused No.5
also deserve to be quashed.
6. In the result, I pass the following:
ORDER
i) The petition is hereby allowed.
ii) The proceedings in C.C.No.1123/2016 on
the file of ACJ & JMFC, Bantwal, D.K.
Mangaluru for the offences punishable
under Sections 120B, 324, 341, 145,
147, 148, 307, 302, 201 and 212 r/w
149 of IPC qua the petitioner are hereby
quashed.”
6. In the instant case, it is an undisputed fact that
proceedings as against accused No.5 has been quashed by this
Court in Crl.P.No.578/2024 dated 21.02.2025 and consequently, by
applying the doctrine of parity, proceedings against the petitioners –
accused Nos.1 and 8 in this petition also deserves to be quashed.
7. In the result, I pass the following:
ORDER
(i) The petition is hereby allowed.
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(ii) The proceedings in S.C.No.120/2019 arising out
of FIR in Crime No.181/2015 registered by the 1st respondent
– Police, pending on the file of the VI Addl. District &
Sessions Judge, D.K., Mangalore, for the offences
punishable under Sections 143, 147, 148, 120B, 324, 341,
307, 302, 201 and 212 r/w 149 of IPC insofar as the
petitioners-accused Nos. 1 and 8 are concerned, are hereby
quashed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
SV
List No.: 5 Sl No.: 8
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