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2019 DIGILAW 747 (KAR)

Danayya v. State of Karnataka

2019-03-27

H.P.SANDESH

body2019
JUDGMENT : H.P. Sandesh, J. Heard the arguments of the petitioners' counsel and also the HCGP for respondent State. 2. Both these petitions are filed by accused Nos.1 and 2 invoking section 482 of Cr.P.C., praying this Court to quash the proceedings initiated against them in C.C.No.4/2018, on the file of Civil Judge and JMFC, Banahatti, in Crime No.98/2017 of Banahatti P.S. 3. The factual matrix of the case is that, on 30.9.2017, the respondent No.2 herein had lodged a complaint with the police making an allegation that he received information that his step brother was subjected to murder and immediately he rushed to the place and found the dead body and gave a complaint stating that some persons have committed the murder. Based on the complaint, a case has been registered at the first instance for the offence punishable under sections 143, 147, 148, 341, 302 read with section 149 of IPC. After the investigation, the police have filed the charge sheet invoking the offence punishable under sections 120B, 109, 307, 143, 147, 148, 302 read with section 149 of IPC and while filing the charge sheet, some persons were left out and some other persons were added as accused persons. 4. The main contention of these petitioners is that the accused No.1 i.e., the petitioner in Crl.P.No.3775/2018 is running a school and having valuable assets and the allegation of the prosecution is that the petitioner in Crl.P.No.3771/2018 is having illicit relationship with the petitioner in Crl.P.No.3775/2018 i.e., the accused No.2 and the deceased is the son of accused No.1 through the 2nd wife. Further contention of these petitioners is that the 1st wife and 2nd wife's children have hatched a plan to implicate these petitioners only in order to knock off the property of accused No.1 even though there was no any material against these petitioners. The other contention that only being on suspicion these petitioners were arraigned as accused Nos.1 and 2 and made false allegation that these petitioners have conspired to eliminate the deceased. 5. The other contention that only being on suspicion these petitioners were arraigned as accused Nos.1 and 2 and made false allegation that these petitioners have conspired to eliminate the deceased. 5. The counsel appearing for the petitioners would also submit and brought to the notice of this Court that several cases are registered against the deceased and he was having criminal antecedents and in the absence of any material against these petitioners, the very initiation of the proceedings against these petitioners is nothing but an abuse of process and it amounts to miscarriage of justice. Hence the proceedings initiated against these petitioners has to be quashed. 6. Per contra, the HCGP in his arguments he contends that, CW.21 is the eye witness who made the statement that he witnessed the incident of committing the murder and also his statement is recorded before the jurisdictional Magistrate under section 164 of Cr.P.C. and the other witnesses CWs.20 to 29 are the eye witnesses to the incident. The counsel would also submit that the statement of CWs.32 and 33 is recorded in respect of these petitioners are concerned that these petitioners have conspired to eliminate the deceased and further contends that several attempts were made to eliminate him and earlier attempts are failed and ultimately the deceased was murdered at the instance and conspiracy of these petitioners and hence this Court cannot invoke section 482 of Cr.P.C. to quash the proceedings. 7. Having heard the arguments of petitioners counsel and also the counsels appearing for the respondents, this Court has to examine whether this Court can exercise the powers under section 482 of Cr.P.C. to quash the proceedings against the petitioners in the case on hand. 8. The main contention of the petitioners counsel before this court is that only in order to knock off the property, which is vest with accused No.1, an attempt is made by the 1st wife and 2nd wife and their respective children making a false al legation against accused No.1 that he is having illicit relationship with accused No.2 who are the petitioners before this Court and there are no any material before the Court and only on suspicion they have been implicated in the case. 9. 9. Per contra, the contention is that there are eye witnesses to the incident and also the statement of witnesses recorded with regard to the conspiracy made by these petitioners and CWs.32 and 33 say about the conspiracy and hence this Court cannot invoke section 482 of Cr.P.C. On perusal of the charge sheet, CWs.18 to 23 are arraigned as eye witnesses to the incident and the contention of the petitioners that i.e., accused No.1 is aged about 76 years and in order to tarnish the name of the accused No.1, they have hatched up a plan and hence it is a fit case to exercise the powers under section 482 of Cr.P.C. 10. Having considered the contentions of both the petitioners counsel and the respondents counsels, it is settled law that section 482 of Cr.P.C. is not a rule and it is an exception and while exercising the powers under section 482 of Cr.P.C., the Court must exercise the same sparingly and only to examine whether any abuse of process in initiating the criminal proceedings against a person and whether it amounts to miscarriage of justice. 11. In the case on hand, no doubt at the first instance the complainant while lodging the complaint made an allegation that some persons have committed brutal murder of his step brother and based on the complaint, a case has been registered on some of the accused persons and some of the persons were deleted and some of the persons were added in the charge sheet and the prosecution is relying upon the statement of eye witnesses CWs.18 to 23 and also the statement of CWs.20 to 29 and apart from that a witness has made a statement before the jurisdictional Magistrate under section 164 of Cr.P.C. The very contention of these petitioners is that these petitioners have not involved in the said crime and the offence invoked against these petitioners is also section 120B of IPC making the allegation that they conspired to eliminate the deceased. 12. 12. The other contention that the deceased was having criminal antecedents and several cases are registered against him invoking section 307 of IPC and other offence including section 302 of IPC and all these aspects cannot be decided in the proceedings under section 482 of Cr.P.C. The disputed question of fact cannot be decided in the proceedings under section 482 of Cr.P.C. and all these defence can be raised before the Court below by these petitioners. 13. Whether there was any material with regard to the allegation of illicit relationship between accused Nos.1 and 2 and also with regard to the criminal antecedents, this Court cannot invoke section 482 of Cr.P.C. to consider the defence of the accused persons since a serious allegation is made against these petitioners that they conspired with other accused persons and others, formed an unlawful assembly, restrained the deceased and committed brutal murder of the victim. All these aspects have to be tested in trial and not in this proceedings under section 482 of Cr.P.C. 14. In view of the discussions made above, this Court proceed to pass the following: ORDER Both the criminal petitions are dismissed.