Wednesday, 22 July 2020

Under which circumstances the court can acquit absconding accused if other co-accused are acquitted?

  In the above said backdrop and the dictum of the Hon'ble Apex Court and this court, the only point that requires for consideration of this court is -
"Whether the materials placed before the court against the accused person who has already acquitted and the material available against the petitioner herein, are one and the same and inseparable if juxtapose compared with each other".

7. If the allegations are indivisible and inseparable in nature, in such an eventuality, the judgment of acquittal can also be extended to the absconding accused persons or against whom, a separate split up charge sheet has been filed. Therefore, it is incumbent upon the court to examine the materials on record to find out whether the petitioner is entitled for such benefit in a given particular case. Therefore, it is just and necessary to ascertain the factual aspects of this case. 

On careful perusal of the materials on record, the allegations made against the petitioner and other acquitted accused persons are one and the same and they are inseperable and indivisible in nature. The evidence that has already placed by the prosecution and appreciated by the trial Court also reveals that, the allegations against the petitioner are not distinct and separate when compared with the other acquitted accused persons.
12. Under the above said facts and circumstances of the case, considering the factual aspects of this case, no purpose would be served if the petitioner is once again tried for the same offences as the prosecution cannot put forth any better evidence than the one already placed before the court and appreciated by the trial Court. Hence, the petitioner is also entitled for the benefit of acquittal. If the prosecution is ordered to be continued, same amounts to waste of judicial time and also abuse of process of the court.  

Karnataka High Court
Salman @ Shameer vs The State Of Karnataka on 13 July, 2018
Author: K.N.Phaneendra
W.P. NO.25286/2018 (GM-RES)


The petitioner is arrayed as accused No.2 in CC No.4186/2014 [arising out of Crime No.109/2014 of Panambur Police Station] pending on the file of the JMFC-II Court, Mangalore City, Mangalore, in CC No.4186/2014, originally and after committal of the case to the Court of Sessions, it came to be registered in Sessions Case No.102/2014 on the file of the III Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru.
2. The petitioner has claimed that accused No.1 was tried in the above said Sessions Case No.102/2014 by the learned III Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru, and that the accused No.1 was acquitted of the charges vide judgment dated 28.07.2017. Therefore, the petitioner claims that, the facts and circumstances of this case and the allegations made against the petitioner and the acquitted accused are one and the same and they are inseparable and indivisible in nature. However, due to non availability of the petitioner, a split up charge sheet was filed against him in CC No.4186/2014, pending on the file of the JMFC II Court Mangaluru. Therefore, the petitioner claims that, benefit of the acquittal Judgment may also be extended to him and consequently, all further proceedings against him in CC No.4186/2014 on the file of the JMFC-II Court, Mangaluru, may be quashed.
3. The benefit of judgment of acquittal can be extended to the absconding accused persons also against whom a split up case has been registered and consequential quashing of the proceedings can be done only under peculiar circumstances of the case. This point has been extensively dealt with by the Hon'ble Apex Court and this court in the following cases.
4. In this regard, it is worth to note here a decision of the Hon'ble Apex Court reported in AIR 2005 SC 268 in the case of Central Bureau of Investigation Vs. Akhilesh Singh, wherein, it was held that:
"Quashing of charge and discharge of the accused when an accused who alleged to have hatched conspiracy and who had motive to kill the deceased were already discharged, that matter had attained finality, the discharge of co-accused by High Court by holding that no purpose would be served in further proceeding with case against co- accused held proper."
5. In another decision reported in 2002(1) KCCR 1 in the case of Muneer Ahmed Qureshi, Muneer @ Gaun Muneer Vs. State of Karnataka by Kumaraswamy Layout Police, wherein this Court has held that:
             "Entire   case    of       the        prosecution      as
       against six     accused                is        practically
       inseparable       and        individual          one        and
especially when the Judgment of acquittal is passed, when P.W.1 denies the entire incident or the role of the accused. This reasoning of acquittal would also definitely enure to the petitioner. Even if the petitioner is tried there cannot be any other material other than what is already produced and considered by Trial Court. In such circumstances it will be an exercise in futility to make the petitioner to undergo the ordeal of crime, and then to be acquitted.
Holding that the proceeding against the accused person who was absconding and subsequently against whom a split up charge sheet was filed was quashed."
6. In the above said backdrop and the dictum of the Hon'ble Apex Court and this court, the only point that requires for consideration of this court is -
"Whether the materials placed before the court against the accused person who has already acquitted and the material available against the petitioner herein, are one and the same and inseparable if juxtapose compared with each other".
7. If the allegations are indivisible and inseparable in nature, in such an eventuality, the judgment of acquittal can also be extended to the absconding accused persons or against whom, a separate split up charge sheet has been filed. Therefore, it is incumbent upon the court to examine the materials on record to find out whether the petitioner is entitled for such benefit in a given particular case. Therefore, it is just and necessary to ascertain the factual aspects of this case.
8. It is the case of the prosecution that as could be seen from the original charge sheet and as well as the factual matrix that emanate from the judgment recorded by the trial Court against other acquitted accused person is that -
CW-1 had gone near Idga Masjid of Jokatte, to arrest Accused No.1 as per the instructions of CW-20. It is alleged that at the said place, on seeing the Police initially accused No.1 tried to escape from the place and when the Police personnel tried to apprehend him by surrounding him, accused No.1 took out a knife from his shirt pocket and threatened to kill the complainant and even assaulted him with knife with an intention to kill him and thereby obstructed him from discharging his official duty. It is also alleged that accused No.2 provoked and abated accused No.1 and thereby A1 has committed the offences punishable u/ss.143, 147, 148, 427, 324, 504, 506 and 307 read with Section 149 of IPC.
9. On the basis of the above said allegations, the respondent Police have registered a case in Crime No.109/2014 and after investigation submitted a charge sheet. On 25.6.2014, the jurisdictional Police have arrested the accused No.1 and submitted charge sheet showing accused No.2 as absconding. The learned Judge took cognizance of the offences and tried to secure the presence of accused No.2 by issuing non- bailable warrant against him. Later, the said Court vide its order dated 27.10.2014 ordered to split up the case against accused No.2, based on which, a split up case in CC No.4186/2014 came to be registered against accused No.2.
10. The prosecution in order to prove the guilt of the accused No.1 examined as many as 18 witnesses as PWs.1 to 18 and got marked 33 documents as Exhibits P-1 to P-33. After appreciating the oral and documentary evidence, the Sessions Court has come to the conclusion that, there was no acceptable evidence to prove that, the accused have committed the offences charge sheeted against them. The court also observed that the material witnesses have not supported the case of the prosecution. Therefore, the court has acquitted accused No.1 for the alleged offences and thereby, the said Judgment has logically concluded.
11. On careful perusal of the materials on record, the allegations made against the petitioner and other acquitted accused persons are one and the same and they are inseperable and indivisible in nature. The evidence that has already placed by the prosecution and appreciated by the trial Court also reveals that, the allegations against the petitioner are not distinct and separate when compared with the other acquitted accused persons.
12. Under the above said facts and circumstances of the case, considering the factual aspects of this case, no purpose would be served if the petitioner is once again tried for the same offences as the prosecution cannot put forth any better evidence than the one already placed before the court and appreciated by the trial Court. Hence, the petitioner is also entitled for the benefit of acquittal. If the prosecution is ordered to be continued, same amounts to waste of judicial time and also abuse of process of the court. Hence, I proceed to pass the following:

ORDER The Petition is allowed. Consequently, all further proceedings in CC No.4186/2014 (Arising out of Crime No.109/2014 of Panambooru Police Station) pending on the file of the JMFC-II Court, Mangaluru, against the petitioner herein for the alleged offences, are hereby quashed.
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