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2023 DIGILAW 1004 (KAR)

G. Moideen v. State of Karnataka

2023-08-23

M.G.UMA

body2023
JUDGMENT 1. Revision petitioner, who is Accused No.8 in S.C.No.86/2020 on the file of the learned IV Additional District and Sessions Judge, D.K. Mangaluru, is impugning the order dtd. 8/11/2022, whereby the application filed under Sec. 227 of Cr.P.C., praying to discharge him for the offences punishable under Ss. 170, 171, 419, 120B, 109, 399, 402, 420, 36 r/w Sec. 149 of the Indian Penal Code (for short 'the IPC'), and under Ss. 3 and 25 of the Indian Arms Act, 1959 and under Sec. 7 of the State Emblem of India (Prohibition of Improper Use) Act 2005, is rejected. 2. The parties are referred to as per their ranking before the Trial Court. 3. Brief facts of the case are that on the basis of the suo motu FIR registered by Mangaluru East Police the investigation was undertaken and the charge sheet came to be filed for the above said offences. The contention of the prosecution as per the charge sheet is that a credible information was received by the police that accused No.1 was projecting himself as the Director of National Crime Investigation Bureau (for short 'the NCIB') and using the Car with the Board and Emblem of the State to make believe him as the Director of the National Investigation Agency and was intending to extract money from the general public. Accused No.9 even though knew that accused No.1 is not a Government Official, he joined hands with him to extract money from one Girish Rai and Imtiaz promising to pay 20% commission. In that regard, accused Nos.1 and 9 have conspired together along with accused Nos.10 and 11 by meeting in a Hotel at Madiwala, Bengaluru. They have also conspired to de-thrown the Pontiff of Kashimath and to recover the amount from him, which he had taken from Karnataka Bank Limited and also to get a favourable order in favour of accused No.11. Accused No.1 along with accused Nos.12 to 14 conspired in the office of accused No.1 and agreed to share the booty after commission of the offence. Accused Nos.1, 9, 10 and 11 have conspired with accused Nos.12 to 15 to commit the offence. Accused Nos.2 to 6 have joined accused No.1 as his body guards and took Mahendra TUV 300 Car with the Board as Director NCIB with the Emblem of the Central Investigation Agency and came to Mangaluru on 15/8/2019. 4. Accused Nos.1, 9, 10 and 11 have conspired with accused Nos.12 to 15 to commit the offence. Accused Nos.2 to 6 have joined accused No.1 as his body guards and took Mahendra TUV 300 Car with the Board as Director NCIB with the Emblem of the Central Investigation Agency and came to Mangaluru on 15/8/2019. 4. It is the specific contention of the prosecution that it was accused Nos.7 and 8, who booked the room for accused No.1 in Sai Arya Lodge and on 16/8/2019 at 5.00 p.m. accused Nos. 1 to 8 have held a meeting in Room No.201 of Sai Arya Lodge. Accused No.1 was armed with 4.5 pistol. Accused No.2 was having revolver with 8 live bullets and they conspired with accused Nos.9, 10 and 11 and they made preparation to commit dacoit. It was accused Nos.1 and 12 to 14 with an intention to cheat the general public by projecting accused No.1 as the Director of the Central Investigation Agency tried to extract and gulp the money and thereby they have committed the offences as stated above. 5. Learned Magistrate took cognizance of the offence and the accused Nos.8 and 13 appeared before the trial Court in response to the summons and filed their application under Sec. 227 of Cr.P.C. praying for their discharge. The Trial Court after considering the materials on record passed the impugned order dtd. 8/11/2022 dismissing the said application. Being aggrieved by the same, accused No.8 is before this Court. 6. Heard Sri Parameshwar N. Hegde, learned counsel for the petitioner and Sri Jairam Siddi, learned HCGP for the respondent. Perused the entire material on record. 7. Learned counsel for the petitioner contented that the petitioner is arrayed as accused No.8. The only allegation made against accused No.8 is that he booked Room No.201 in Sai Arya Lodge, Mangaluru, for the stay of accused No.1 and he held a meeting with him. But the statement of CWs.4 and 5, who are the owners of the Sai Arya Lodge in question have referred to accused No.7 as the person, who called them to book the room for accused No.1 referring him to be the Director of NCIB. They never referred to the name of accused No.8 that he booked the room for accused No.1. They never referred to the name of accused No.8 that he booked the room for accused No.1. The statement of CWs.4 and 5 is to the effect that in the evening accused No.8 had accompanied accused No.7 and met accused No.1 in the room. If the said contention of the prosecution is accepted as it is, none of the penal provisions invoked by the prosecution would stand the test of the trial and they have no prima facie material against the accused No.8. Therefore, accused No.8, who is the petitioner herein is to be discharged. 8. Learned counsel further submitted that accused No.9 had approached this Court by filing W.P.No.51866/2019 (GM-RES), which came to be allowed vide order dtd. 3/8/2022 by the Co-ordinate Bench of this Court and criminal proceedings against him was quashed. Similarly accused No.11 approached this Court by filing Crl.P.No.8667/2019, which also came to be allowed by the Co-ordinate Bench of this Court vide order dtd. 12/11/2020 quashing the criminal proceedings against him. Under such circumstances, the petitioner against whom there is absolutely nothing on record to invoke any of the penal provisions is entitled for discharge. Accordingly he prays for allowing this criminal revision petition and to set aside the impugned order passed by the trial Court. 9. Per contra, Sri Jairam Siddi, learned HCGP opposing the petition submitted that the allegations made against accused Nos.1 to 15 is of serious nature. On credible information the Police came to know that accused No.1 conspired with other accused and camped in '(Mangaluru)', Room No.201 of Sai Arya Lodge '(Mangaluru)' and this petitioner along with accused No.7 booked the room for his stay and also arranged meetings with the other accused. It is nothing but a conspiracy between one another and therefore, the petitioner is also one of the party to the conspiracy and is liable to be tried. It is premature to form an opinion that there are no materials against the petitioner and therefore, the trial Court rightly rejected the application under Sec. 227 of Cr.P.C. Accordingly prays to dismiss the petition. 10. It is premature to form an opinion that there are no materials against the petitioner and therefore, the trial Court rightly rejected the application under Sec. 227 of Cr.P.C. Accordingly prays to dismiss the petition. 10. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is : "Whether the impugned order passed by the trial Court suffers from infirmity and perversity and calls for interference by this Court.?" My answer to the above point is in the 'affirmative' for the following : REASONS 11. The specific contention of the prosecution as per the charge sheet is that the accused conspired together and accused No.1 armed with revolver projected himself as the Director of NCIB arranged the Car with the Board and Emblem to suit the said designation, accompanied by accused Nos. 2 to 6 as his body guards and conspired with accused Nos.9 to 15 to extract money from the general public. The specific allegation made against the petitioner, who is arrayed as accused No.8 is that he along with accused No.7 booked Room No.201 at Sai Arya Lodge for the stay of Accused No.1 and on 16/8/2019 he met accused No.1 along with accused No.7 and participated in the meeting that was held in the said room. 12. My attention was drawn to the statements of CWs.4 and 5, who are said to be the owners of Sai Arya Lodge. The witnesses specifically state that it was accused No.7, who called and requested to book a Room for the Director of NCIB i.e, accused No.1 and on the basis of such request they booked the room. Thereafter, accused No.1 along with other accused came there. This petitioner, who is arrayed as accused No.8 came to the said Sai Arya Lodge on 16/8/2019 at 5.00 p.m. and participated in the meeting that was held by accused Nos.1 to 8. Therefore, the contention of the prosecution that it was this petitioner, who booked the room does not find any support in the charge sheet materials. As a result, the only allegation that remains against the petitioner is that he met accused No.1 in Room No.201 of Sai Arya Lodge on 16/8/2019 at 5.00 p.m. and was present in the meeting. Therefore, the contention of the prosecution that it was this petitioner, who booked the room does not find any support in the charge sheet materials. As a result, the only allegation that remains against the petitioner is that he met accused No.1 in Room No.201 of Sai Arya Lodge on 16/8/2019 at 5.00 p.m. and was present in the meeting. If this contention of the prosecution is to be accepted as it is, none of the penal provisions invoked by the Investigating Officer could be made applicable against the petitioner. 13. It is also to be noted that even in the voluntary statement of accused No.1, he refers to accused No.7 with whom he requested to get a room booked in Mangaluru and does not refer to accused No.8. Accused No.1 in his voluntary statement only states that accused No.8 had accompanied accused No.7 and visited him in Mangaluru. When no semblance of commission of offence goes against the petitioner, except saying that he met accused No.1 in the Hotel Room, I am of the opinion, that there are no sufficient grounds for proceeding against the petitioner/accused No.8 for any of the above provisions. Under such circumstances, he is entitled for discharge. 14. I have gone through the impugned order passed by the trial Court. It has not considered the materials on record against the present petitioner to form an opinion that there are prima facie materials against the petitioner to constitute any of the offences. Even if the allegations made in the charge sheet are to be accepted as it is, none of the penal provisions could be invoked and there are no sufficient grounds to proceed against the petitioner/accused No.8. 15. Therefore, I am of the opinion that the impugned order is liable to be set aside. Accordingly, I answer the above point in the affirmative and proceed to the pass the following :- ORDER i) The revision petition is allowed. ii) Criminal proceedings initiated against accused No.8 in S.C.No.86/2020 for the offence punishable under punishable under Ss. 170, 171, 419, 120B, 109, 399, 402, 420, 36 r/w Sec. 149 of IPC, and under Ss. 3 and 25 of the Indian Arms Act, 1959 and under Sec. 7 of the State Emblem of India (Prohibition of Improper Use) Act, 2005, is quashed. iii) Petitioner/Accused No.8 is discharged for the above said offences.