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2019 DIGILAW 113 (KAR)

HARISHPOORI v. STATE OF KARNATAKA

2019-01-09

H.P.SANDESH

body2019
JUDGMENT H.P. SANDESH, J. 1. I have heard the learned counsel appearing for the petitioner and the learned Government Pleader for the respondent-state. 2. The petitioner is accused No.3 in C.C.No.185/2007 for the offence punishable under Sections 420 r/w 34 of IPC and filed this petition under Section 482 of Cr.P.C. seeking to quash the case filed against him on the ground that the other co-accused have been acquitted by the trial Court. 3. The main contention of the petitioner before this Court is that he is innocent of the offences and allegation leveled against him is no way concerned with the alleged offences. The trial held against other 3 accused persons ended in acquittal. The offence alleged against all the accused is common since the material witness have turned hostile and it has resulted in acquittal. Therefore, this petitioner also stand in the same footing and he is also entitled to an order of acquittal. The higher Courts i.e. by High Court and Hon'ble Apex Court were acquitted the accused in several cases in case of acquittal of other accused persons. In support of his contention the counsel appearing for the petitioner has also relied upon the judgment unreported of this judgment of this Court in Criminal Petition No.4485/2017 and contended that when other accused persons have been acquitted and no appeal is filed against the acquittal judgment. Hence, this Court can exercise the powers under Section 482 of Cr.P.C. and quash the proceedings. 4. Per contra, learned High Court Government Pleader appearing for the respondent-state in his arguments, has contended that the petitioner cannot invoke Section 482 and he has to approach the trial Court for making an application for discharge of the offences alleged against him. In support of his contention he relied upon the judgment in the case of Umesh Vs State of Kerala reported in, (2017) 3 SCC 112 , where in it is held that proper forum for appropriate application is under Section 239 must be filed before Magistrate. It is for Magistrate to consider contentions regarding discharge therein. Hence, High Court refused to quash criminal proceedings pending against appellant-accused. Further it is held, that even if all contentions taken by appellants-accused are on their face value also, it is for Magistrate concerned to consider those contentions in an appropriate application filed under Section 239. It is for Magistrate to consider contentions regarding discharge therein. Hence, High Court refused to quash criminal proceedings pending against appellant-accused. Further it is held, that even if all contentions taken by appellants-accused are on their face value also, it is for Magistrate concerned to consider those contentions in an appropriate application filed under Section 239. Hence, appellant directed to surrender before Judicial Magistrate, where criminal cases are pending, and follow proper procedure for taking bail, and file applications under Section 239/227, Magistrate directed to consider any such applications filed in accordance with law. 5. Having heard the arguments of the learned counsel for the petitioner and learned Government Pleader for respondent, the point arises before this Court is whether this Court can invoke Section 482 of Cr.P.C. for quashing the proceedings on the ground that other accused persons have been acquitted. 6. The factual matrix of the case is that based on the complaint the police have registered the case against 3 accused persons and filed charge sheet for the offence under Section 420 r/w 34 of IPC. The record discloses that this petitioner is shown in the absconded column and trial is conducted against the accused Nos.1 and 2. The accused who has been arrayed as accused No.3 now approached this Court invoking Section 482 of Cr.P.C. for quashing the proceedings since accused Nos.1 and 2 have been acquitted. Since all the witnesses have not supported the case of the prosecution and all turned hostile. The similar issue has been come up before the Hon'ble Apex Court since the High Court has refused to invoke Section 482 of Cr.P.C. for quashing the proceedings in paragraph No.3 of judgment referred supra in Umesh Vs State of Kerala reported in, (2017) 3 SCC 112 , wherein it is held that the appellant was not shown available for trial, trial in his case was separated and the trial Court proceeded as against all the other accused persons. In the said case, the first accused was convicted and the rest of the accused persons were acquitted and in C.C.No.280 of 1996 all the accused persons have been acquitted. Therefore, according to the counsel appearing for the appellant, the continuance of the proceedings before the Magistrate's Court, as far as the appellant is concerned, is unnecessary harassment and wastage of time. 7. Therefore, according to the counsel appearing for the appellant, the continuance of the proceedings before the Magistrate's Court, as far as the appellant is concerned, is unnecessary harassment and wastage of time. 7. Considering the said arguments the Hon'ble Apex Court held that it is difficult to appreciate the said contentions and even if all the contentions are taken by the appellant are taken on the face value, it is for the Magistrate concerned to consider those contentions in appropriate application filed before him and hence directed the appellant to approach the concerned Magistrate and further direction was given to Magistrate to consider the said application in accordance with law. 8. On cursory looking into the facts of this case the ground urged is the similar and Hon'ble Apex Court has made it clear that he has to approach the concerned Court by making necessary application and the petitioner's counsel has relied upon unreported judgment of this Court. No doubt this Court while exercising the powers under Section 482 of Cr.P.C. considered and observed that there was no any appeal as against the acquittal, invoking Section 482 of Cr.P.C. quashed. However, the Hon'ble Supreme Court in the judgment referred supra, considering the rejection of 482 of Cr.P.C. petition specifically held that the petitioner has to approach the Magistrate by making necessary application and he can raise all the contentions before the concerned Magistrate and then such application can be considered by the Magistrate. 9. In view of the principles laid down by the Supreme Court referred supra, it is also aptly applicable to the case on hand since the contentions of the petitioner is that the other accused persons have been acquitted and no point in continuing the proceedings against him and the same is nothing but wastage of time and on that ground cannot be entertained the petition filed under Section 482 of Cr.P.C. and the Hon'ble Apex Court accepted the order of the High Court in rejection of 482 of Cr.P.C. and directed the petitioner to go to the concerned Magistrate. Hence, I do not find any reasons to entertain the petition invoking Section 482 of Cr.P.C. to quash the proceedings. 10. In view of the discussions made above, I proceed to pass the following: ORDER The petition is dismissed. Hence, I do not find any reasons to entertain the petition invoking Section 482 of Cr.P.C. to quash the proceedings. 10. In view of the discussions made above, I proceed to pass the following: ORDER The petition is dismissed. However, the concerned Court is directed to consider the application, if any, filed by the petitioner for discharge in accordance with law. The petitioner is directed to surrender before the concerned Court. On surrendering the petitioner shall furnish a bond in a sum of Rs.50,000/- with two solvent sureties for the like sum and the petitioner shall be released on bail. The petitioner will be free to file the appropriate application before the Magistrate.