Karnataka High Court
Shafi K @ Khalandar Shafi @ Mla Shafi vs State Of Karnataka on 17 January, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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CRL.P No. 464 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 464 OF 2025 (482(Cr.PC) / 528(BNSS)
BETWEEN:
1. SHAFI K @ KHALANDAR SHAFI @ MLA SHAFI,
S/O MOIBU KUNHI,
AGED ABOUT 33 YEARS,
R/AT KALAY HOUSE,
PAIVALIKE VILLAGE,
MANJESHWARA TALUK,
KASARGOD DISTRICT,
KERALA - 671323
2. SHAFI ALIAS CHOTU SHAFI,
S/O ABDULLAH,
AGED ABOUT 35 YEARS,
R/AT AA MAHAL,
PAIVALIKE VILLAGE,
MANJESHWARA TALUK,
KASARGOD DISTRICT,
KERALA - 671323
3. ADRAMA ALIAS ADRAMA HARIS ALIAS HARIS
S/O ISMAIL ALIAS MOHAMMED BYARI,
Digitally signed by
LEELAVATHI S R AGED ABOUT 32 YEARS,
Location: High
MITTANADKA HOUSE,
Court of KAROPADY VILLAGE,
Karnataka BANTAWAL TALUK,
D K DISTRICT - 574279
...PETITIONERS
(BY SRI. LETHIF B., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY VITLA POLICE STATION, D K DISTRICT,
REP. BY SPP, HIGH COURT BUILDING,
BANGALORE - 560001.
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CRL.P No. 464 of 2025
2. A VIGNARAJA BHAT,
S/O LATE GANGAPATHI BHAT,
AGED ABOUT 54 YEARS,
ARASALIKE HOUSE,
KAROPADI VILLAGE,
BANTAWAL TALUK,
D K DISTRICT - 574279
...RESPONDENTS
(BY SMT. M.M.WAHEEDA, HCGP FOR R1)
THIS CRIMINAL PETITION IS FILED U/S 482 CR.PC (FILED U/S
528 BNSS) PRAYING TO QUASH THE ENTIRE PROCEEDINGS
AGAINST THE PETITIONER IN CC NO. 1965/2017 ON THE FILE OF
ADDITIONAL CIVIL JUDGE, AND JMFC, BANTAWAL FOR THE
OFFENCE UNDER SECTION 398, 201 OF IPC OF VITLA POLICE
STATION. THE COPY OF THE ORDER SHEET IN C.C NO. 1965/2017
WHICH IS PRODUCED AT ANNEXURE-'A'.
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 the proceedings in
C.C.No.1965/2017 on the file of Additional Civil Judge and JMFC,
Bantawal for the offences punishable under Sections 398, 201 of
IPC.
2. Heard learned counsel for the petitioners and learned
HCGP for respondent No.1 and perused the material on record.
3. A perusal of the material on record will indicate that the
petitioners are arraigned as accused Nos.6 to 8 along five others
who were arraigned as accused Nos.1 to 5 in the charge sheet
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CRL.P No. 464 of 2025
pursuant to FIR in Crime No.11/2017. The offence alleged against
the petitioners and other accused are under Sections 398 and 201
of IPC.
4. In this context, learned counsel for the petitioners
invited my attention to the judgment dated 04.08.2020 passed in
S.C.No.60/2018 as against accused No.2- Mohammed Ali @
Alimonu and accused No.4 – Ashraf @ L.T.Ashraf in order to point
out that in view of the acquittal of accused Nos.2 and 4, the
petitioners, who are accused Nos.6 to 8, prior to same being split
up, would be entitled to seek parity as held by this Court in the
case of Mohan Vs. State of Karnataka and Anr1, in which it was
held that acquittal of co-accused by the Sessions Court would
enure to the benefit of the petitioners 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.1
Crl.P.No.5376/2024 dated 19.09.2024
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CRL.P No. 464 of 2025Sowmya 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
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
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CRL.P No. 464 of 2025escaped 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 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
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CRL.P No. 464 of 2025prove 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., 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
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CRL.P No. 464 of 2025judicial 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 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
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CRL.P No. 464 of 2025and 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 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,
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CRL.P No. 464 of 2025as 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 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
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CRL.P No. 464 of 2025
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 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
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CRL.P No. 464 of 2025
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 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
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CRL.P No. 464 of 2025
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.
(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.
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CRL.P No. 464 of 2025
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, Bangalore (CCH-59), stand quashed,
qua the petitioner.”
5. In the instant case, it is undisputed fact that accused
Nos.2 and 4 have been acquitted by the trial Court and
consequently, by applying doctrine of parity, proceedings against
petitioners/accused Nos.6 to 8 also deserve to be quashed.
6. In the result, I pass the following:
ORDER
i) The petition is hereby allowed.
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CRL.P No. 464 of 2025
ii) The proceedings in S C.C.No.1965/2017 on the
file of Additional Civil Judge and JMFC, Bantawal
for the offences punishable under Sections 398,
201 of IPC qua the petitioners are hereby
quashed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
MDS
List No.: 1 Sl No.: 65
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