DURGEPPA ALIAS ARUN Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) BY way of this petition, the petitioners sought for quashing of the entire proceedings in CC No.876/2011 on the file of the Prl. Civil Judge and JMFC, Dharwad, so far it relates to the petitioner Nos.1 and 2, who are arrayed as accused No.1 and 9 in the said case.

(2.) I have heard the arguments of the learned counsel for the petitioner and also the learned High Court Government Pleader. I have carefully perused the records. The records discloses that a person by name Bandappa S/o Parasappa Vaghmore, lodged a complaint that in the year 2001, precisely on 2/8/2001, at about 10.30.am to 11.00 am, he had been to a plastic shop situated at city bus stand at Dharwad. When he was returning from the said shop, an unknown person put his leg across the complainant and he fell down and at that time, the said unknown person ran away with the suitcase of this complainant Bandappa. It is further stated that the said suitcase containing Rs.60,000/ - and other bank demand drafts. He has also stated that he was carrying one lakh rupees Demand Draft in the said suitcase and other important documents. Though he has screamed for help, nobody came there and thereafter, he went to the police and lodged a complaint. It appears on the basis of above said facts, the police registered a case, investigated the mater and submitted the charge sheet before the Court in CC No.358/2002. The Criminal Court has issued summons and warrants against the accused persons, i.e. accused Nos.1 to 9, but, failed to secure the presence of the accused persons. Therefore, the trial Court sought for the permission for recording of the evidence of the prosecution witnesses under Section 299 of Cr.P.C., in order to transfer the case to long pending register. The learned Magistrate has passed an order on 7/1/2011, directing the office to submit the entire records of the case to the Prl. District and Sessions Judge, Dharwad, for seeking permission to transfer the case to L.P.R. The said order appears to have been passed after following the procedure contemplated under the Cr.P.C. But, subsequently on 10/11/2011, the case was again reopened and accused Nos.5 to 7, appeared before the Court and they were taken to the custody. Subsequently, it is seen that the other accused persons i.e. to say accused Nos. 2 and 8 were also secured to the Court and infact a split up charge sheet has been registered in CC No.876/2011. Those accused persons 2,5, 7 and 8 were tried by the trial Court, vide its judgement dated 30/10/2012, those accused persons No.2, 5,7 and 8 were acquitted, for the offences punishable under Sections 379, 411 r/w 34 of Indian Penal Code, 1860. The order passed by the learned Magistrate while acquitting the other accused persons shows that he has ordered to keep the proceedings alive till the disposal of the case against other accused persons. Therefore, it goes without saying that CC No.876/2011 is still alive on the file of the learned Magistrate awaiting the appearance of the other accused persons. These petitioners arrayed as accused Nos.1 and 9.

(3.) THE learned Counsel for the petitioners submit that when the other accused persons on the same allegations are acquitted, there no purpose would be served even the proceedings are continued against these absconding accused persons. Therefore, the said proceeding is liable to be quashed. Before adverting to the legal aspect, it is just and necessary for me to go through on what ground the learned Magistrate has acquitted the accused persons Nos.2,5,7 and 8. It is seen from the records that in CC No.358/2002, the learned Magistrate under Section 299 of Cr.P.C., recorded the evidence of the complainant. It is worth to look into the evidence of the complainant, though he has narrated in his evidence with regard to the happening of the incident on the particular day and some unknown persons ran away along with his suitcase containing Rs.60,000/ - along with other materials including DD for Rs.1,00,000/ -. But, he has never stated that he has identified any of the accused persons, at any point of time. The cross examination of this witness by the learned APP, treating this witness as hostile play a dominant role so far as these petitioners are concerned. In the course of cross examination, it is suggested to him that on 11/4/2011, the police have secured the presence of this witness and shown the accused persons of this case, by name Duragappa @ Aruna (A1), Laxmana, Ramu, Ashoka, Kumar, Krishna, Hanumant and Ananda (A9) and narrated that those persons all from Hubli settlement area and they are the persons who have taken away the suitcase of the complainant and that, he has identified them and given such statement as per Ex.P2. But, the said suggestion was denied by the witness. Even during the course of cross examination by the accused Nos.2,5,7 and 8, he has categorically and specifically stated that he never saw the said accused persons at any point of time, earlier to the incident. Though in the further cross examination of the learned APP, he has stated that the accused persons who were before the Court, may be the person who have snatched the money from this witness. But, he has not specifically identified any of the accused person before the Court. This clearly goes to show that the said witness did not admit that at any point of time, during the course of investigation though the accused persons were shown to him, and he identified them as culprits, in this case, nor in the course of evidence before the Court he identified any of the accused persons.