Full Judgment
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 29TH DAY OF OCTOBER, 2024 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN CRIMINAL PETITION NO.200764 OF 2021 (482(CR.PC)/528(BNSS) ) BETWEEN 1 . PEERPASHA S/O GOUSMODDIN JAGIRDAR, AGED ABOUT 50 YEARS, OCC: AGRICULTURE, R/O HAKEEM CHOWK, VIJAYAPURA - 586 101. 2 . MURTUJSAB S/O MAHEBOOB SAB JAMADAR AGED ABOUT 63 YEARS, OCC: BUSINESS, R/O KAMANKHAN BAZAR, BADIKAMAN ROAD, VIJAYAPURA - 586 101. 3 . ALLABAX S/O SAIFANSAB MULLA, AGED ABOUT 71 YEARS, OCC: NIL, R/O J.M ROAD, HAKEEM CHOWK, VIJAYAPURA - 586 101. ...PETITIONERS (BY SRI. RAJA VENKATAPPA NAIK, ADVOCATE) AND 1 . THE STATE OF KARNATAKA THROUGH PUBLIC PROSECUTOR DISTRICT AND SESSION COURT, VIJAYAPURA - 586 101. 2 . ABDULRAHEMAN S/O MOHAMMAD HANEEF, AGED ABOUT 50 YEARS, OCC; ADVOCATE, R/O KAVALAGI, TQ. VIJAYAPURA - 586 101. DIST. VIJAYAPUR. …RESPONDENTS (BY SRI. JAMADAR SHAHABUDDIN, HCGP FOR R1; SRI. ABDUL RAHEMAN, PARTY-IN- PERSON/R2) THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO ALLOW THE CRIMINAL PETITION SETTING ASIDE THE IMPUGNED JUDGMENT AND ORDER PASSED BY LEARNED II ADDL. SESSIONS JUDGE, VIJAYAPUR ALLOWING PARTLY
CRIMINAL REVISION PETITION NO.8/2019 DATED 25.09.2020 WHEREBY COGNIZANCE TAKEN AGAINST 1, 8 AND 9 FOR THE OFFENCE P/U/SEC. 465, 417, 474 OF IPC IN RESPECT OF ACCUSED NO.1, 8, AND 9 IS ALLOWED PARTLY AS PER THE ORDER OF TRIAL COURT IN ITS C.C.NO.171/2006, AND COGNIZANCE TAKEN BY THE LEARNED TRIAL COURT U/SEC.190(1)(A) OF CR.P.C. IN RESPECT OF THE OFFENCE P/U/SEC.120(B) R/W SEC.34 OF IPC IN ITS IMPUGNED ORDER DATED 27.12.2018 IN C.C.NO.171/2006 AGIANST THE PETITIONER NO.2 AND 3/ACCUSED NOS. 8 AND 9 ORDER OF ISSUING SUMMONS AGAINST THEM U/SEC.204 OF CR.P.C. IS SET ASIDE THE CONFIRMING REMAINING PART AND PORTION OF THE IMPUGNED ORDER DATED 27.12.2018 PASSED BY THE LEARNED TRIAL COURT IN ITS C.C.NO.171/2006 TO BE QUASHED EXERCISING INHERENT POWERS U/SEC.482 OF CR.P.C.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.09.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE K.NATARAJAN RESERVED FOR ORDERS ON: 18.09.2024
PRONOUNCED ON : 29.10.2024
CAV ORDER
This petition filed by the petitioner Nos.1 to 3 i.e.,
accused Nos.1, 8 and 9 under section 482 of Cr.P.C. for quashing the criminal proceedings and order passed by the II Additional Session Judge, Vijaypura, by allowing criminal petition in part, in CRP.No.8/2019 dated 25.09.2020 and taking cognizance as against accused Nos.1 and 8 (and also accused No.9 who is dead), as per the order of Magistrate in CC.No.171/2006, for having taken cognizance for the offences punishable
under section 120(B) r/w Sec.34 of IPC, vide order
27.12.2018 as against petitioners/accused Nos.1 and 8 and issuing process.
2. Heard the learned counsel appearing for the petitioner, learned HCGP for the state and respondent No.2 party in person.
3. The respondent No.2 filed the complaint
under Section 200 of Cr.P.C against 12 accused persons including this petitioners for the offences punishable under Sections 201, 302, 471, 120A, 120B, 167 r/w 149 of IPC, contending that, one Sahebjadi who was elder sister of the mother of the complainant, was resident of Kavalagi village, the complainant along with his mother and Sahebjadi were residing together and the said Sahebjadi had landed properties in various survey numbers, in Sy.Nos.64 measuring 4 acres, Sy.No.63/2 measuring 13 acres 6 guntas, Sy.No.71 measuring 21 acres 15 guntas and VPC No.4 in the Kotyal village, there was civil litigation pending, hence the said Sahebjadi residing at Vijaypur for 13 years. She has contacted one Shivanagouda patil and he got
executed sale deed in respect of 20 acres of land in Kotyal village from Sahebjadi under misrepresentation, without any consideration. After death of Shivanagouda his son Shrishail Patil continued his contact with Sahebjadi and Sahebjadi residing in the house of accused Nos.1 and 2 at Vijayapura. The said Shrishail Patil and Nabisab started forcing the Sahebjadi to execute the sale deed in respect of remaining property without consideration but she has refused. In that connection the accused Nos. 1 to 5 colluded with each
other and committed murder of Sahebjadi on 30.01.2004 and buried the body in the grave yard. Even they have got created a gift deed of the said properties of Sahebjadi in collusion with the accused Nos.8 and 9 by forging signature and mutated the name of the accused No.1 in collusion with revenue officials. The complainant approached the police they
have not taken any action. Hence, he has constrained to file private complaint.
4. After receipt of private complaint, the same
was registered as PCR.No.1/2004 and referred to the police under Section 156(3) of Cr.P.C. for the offences under Sections 465, 417, 474 of IPC and the police have filed the charge sheet for the above said offences against accused No.1 and dropped the charge sheet against the accused Nos.2 to 12 including sections 302 & 201 of IPC.
5. After the filing of charge sheet the learned Magistrate took cognizance in criminal case C.C.No.
appeared before the court. The complainant has filed protest petition for dropping the charges of sections 302 & 201 of IPC and also taking cognizance for some of the offences. The trial court allowed the complainant to sworn statement and later passed the order by taking cognizance against the accused Nos.2 and 3 by acting under Section 319 of Cr.P.C. vide order dated 09.03.2016.
6. It is further alleged on the complainant that the Trial court/Magistrate passed another order dated 27.12.2018 by dismissing the protest petition and
ordered for merging the protest petition into CC.No.171/2006 by exercising power under Section 210(2) of Cr.P.C., against the said order. The accused persons/accused Nos.1, 8 and 9 have filed revision petition before the Session Judge, in Crl.R.P.No.8/2019 for taking cognizance on various grounds. And subsequently the Session Judge allowed the petition in part and set aside the order of issuing process under Section 204 of Cr.P.C., as against accused Nos.8 and 9. However the impugned order as against accused No.1 has been confirmed vide order dated 25.09.2020.
7. Being aggrieved with the order of taking cognizance against accused No.1 confirmed by the Session Judge in the revision petition, the petitioner filed this petition before this court.
8. The counsel for the petitioner has contended
that, the mother of the respondent No.2 one Zeharabi filed suit for partition and separate possession on 11.04.1997 in respect of land in Sy.No.64 measuring 4 acres in Kavalagi village, in Sy.No. 126, measuring 21 acres 38 guntas, in Sy.No.127, measuring 21 acres 30 guntas both in Kotyal village, in Sy.No. 63/2 measuring 13 acres 16 guntas, in Sy.No.71 measuring 21 acres 15 guntas. The suit was dismissed and the RA.No.16/1997 also dismissed. And after 14 years complainant who is son of the Zeharabi converted the civil case into criminal case, and he has filed complaint on 13.07.2004 and referred to the police and FIR was registered on 28.07.2004 in Crime No.117/2004. and the police have
filed charge sheet by dropping the names of accused persons and there is no offence proved.
9. The further case of the petitioner is that the Zeharabi filed RSA before the High Court in RSA
her in OS.No.271/2005 for seeking declaration to declare gift deed executed by Sahebjadi in favour of the respondent No.2 is null and void and not binding. The said Zeharabi filed a review petition in respect of RSA, it is also dismissed. And subsequently, the respondent No.2 said to be filed complaint to the Magistrate and got referred to the police, where the police after registering FIR, filed B report, the same was challenged by the complainant and cognizance taken by the Magistrate against accused No.1 for the offences under
Section 465, 417, 474. Subsequently on the protest petition, Section 120B of IPC has been invoked by the
learned Magistrate against the accused No.1 and issued summons, the accused Nos.1 and 3 who were already set aside by the Session Judge but directing to continue the case against accused No.1 is not correct. It is also contended after the mother of the respondent No.1 suffered the decree before the Hon'ble Supreme Court and thereafter once again the complainant filed this petition to harass the accused persons and among other grounds prayed for allowing petition.
10. The respondent party-in-person appeared
and objected the petition contending that, the accused persons have committed murder of Sahebjadi for the purpose of knocking of the property. The police filed the charge sheet where the forgery was proved. There is prima facie case placed on record for having committed offence by accused No.1 forging the signature of the deceased in the documents. It is further contended that
the protest petition filed by the respondent No.2 where he is given evidence in support of protest petition. There are some witnesses examined and matter is still pending before magistrate court, therefore at this stage petition cannot be allowed. The evidence is already commenced, summons has been issued, PW.1 to P.W.3 already partly examined, therefore prayed for rejecting the application.
11. Having heard the arguments, perused the
records which reveals it is not in dispute the mother of the respondent No.2, Zeharabi filed a suit against the Sahebjadi for partition in OS.No.103/1990, and the suit came to be dismissed on 11.04.1997. Later Regular appeal filed before the district court in RA 16/1997 and the same was dismissed 30.01.2004. Subsequently, the regular second appeal in RSA No.463/2004 was filed which also came to be dismissed on 30.09.2004.
Thereafter, a review petition also filed in RP.No.340/2005 which also came to be dismissed on 08.08.2007, thereafter the mother of the respondent No.2 filed special leave petition before the Hon'ble Supreme Court in SLP No.25584/2004 which also came to be dismissed on 23.08.2012. Later a restoration petition also filed which also came to be dismissed on 23.08.2013.
12. The learned counsel has contended that
once the mother of the respondent No.2 failed to get the relief, in the civil dispute and after 13 years, the complaint came to be filed by falsely implicating the petitioner. On perusal of the records the respondent No.2 filed the private complaint for the various offences including sections 302, 201 of IPC, apart from forging the gift deed in the name of the Sahebjadi etc., The complaint came to be referred to the police under
Section 156(3) of Cr.P.C and police registered the FIR for the offences under sections 201, 302, 417, 167,
120A & B of IPC. Subsequently, the police have filed the charge sheet by differing 302 of IPC and charge sheet came to be filed only for the offences under Sections 465, 417, 474 of IPC against the accused No.1. Thereafter the Trial court took the cognizance for the above said offences against accused No.1. Later the trial court took the cognizance against accused Nos.2 and 3 for 120B read with 34 of IPC along with the accused No.1. Subsequently the Session Judge set aside taking cognizance against accused nos.2 and 3 but upheld, the taking of cognizance against accused No.1/present petitioner which is under challenge.
13. It is also admitted fact the petitioner approached this court in Crl.P.No. 15863/2013, which came to be dismissed on 11.07.2014. The petitioner
taken all the contention in this petition and co-ordinate bench of this court dismissed the petition and observed the said contention can be used as defence in the trial.
14. On careful reading of the documents and trial court records which reveals that the trial court after considering the records taken cognizance against the petitioner for the offences punishable under
Sections 417, 465, 474 of IPC. It is case of the respondent that petitioner have murdered deceased Sahebjadi by creating forged gift deed etc., the gift deed and the documents already sent to FSL. The FSL report received which confirms forgery. The trial court after framing charge already recorded evidence of 3 witnesses PW.1 to 3 and in view of the stay granted by this court evidence is not proceeded by the prosecution.
15. Once the evidence of the prosecution is
already commenced, some of the witnesses examined, documents marked, instead of cross examining them petitioner filed petition before this court,. and once co- ordinate bench has already rejected contention of the petitioner and dismissed the petition filed by this petitioner in Crl.P.No.15863/2013 on 11.07.2014, once again this court cannot interfere by the order passed by this court. If at all any defence available by the petitioner and the contentions are to be made in the trial, therefore question of quashing criminal proceeding
against petitioner does not arises. After dismissal of the petition by this court, the petitioner moved the discharge application and thereafter revision petition and filed the present petition which is nothing but second round litigation for the same contention taken by the petitioner. The sessions judge rightly allowed the revision petition in part taking cognizance against
accused Nos.2 and 3 quashed and cognizance against petitioner under Section 120-B read with 34 of IPC has been quashed. Once the Sessions Judge, allowed the revision petition in part and summons was issued only against accused Nos.8 and 9 for 120-B of IPC which was already set-aside by the Sessions Judge, therefore, once again this court cannot quash the Criminal
proceedings against accused No.8. Such being the case, there is no reason for this court to interfere in the
order passed by the Session Judge against accused
No.1 which is a recent judgment. Hence, the petition is devoid of merits and is liable to be dismissed. Accordingly, petition filed by the petitioner/accused No.1 filed under Section 482 of Cr.P.C., is hereby dismissed. As regards to the accused No.8, the Sessions Judge already set aside the order of summoning the accused No.8 in Crl.R.P.No.8/2019 dated 25.09.2020. Therefore, the petition of accused No.8 does not survive for consideration. Hence, it is hereby dismissed. Office is directed to transmit the trial court records to the Kalburagi bench and in turn the registry of Kalburagi Bench is directed to send the trial court records to the concerned court along with the copy of this order to proceed in accordance with the law. Sd/- (K.NATARAJAN) JUDGE SRK CT:SK