Alimurtuza Dadepir Chamanmalik vs The State of Karnataka

P.S. Dinesh Kumar, J—Petitioner is aggrieved by the action of the respondent in arraying him in Crime No. 143/2013 of Terdal Police Station, which after investigation is converted as C.C. No. 645/2014 before the learned JMFC., Banhatti.

Briefly stated the facts of the case are that based on certain information by an informer, Terdal Police apprehended one Abbasali Rajabkhan Inamdar in Terdal. It appears he gave a statement before the Police to the effect that the amount collected by him in Matka (gambling) is handed over to one Nijam @ Nisam of Kudachi, which is in turn passed on to one Murtuja Chaman Sheke. A complaint was registered suo motu in Crime No. 143/2013 for the offences punishable under Section 78(3) of the Karnataka Police Act, 1963. After investigation charge sheet has been filed against three accused. The grievance of the petitioner is, that his name is, Alimurtuza Dadepir Chamanmalik and he is not the person, who is arrayed as accused No. 3. However, he has been subjected to the ordeal of arrest and investigation and now facing trial. Hence, this petition.

Upon notice, the State has entered appearance through the learned AGA. The matter was heard at length on the last date of hearing.

On the last date of hearing, learned counsel for the petitioner adverting to the complaint had contended that there is absolutely no material as against him and the police have implicated him due to inimical disposition as there were other cases pending against him. The charge sheet verbatim contains the contents of the complaint. Therefore, the learned AGA was directed to take further instructions particularly from the Investigating Officer at the material point of time and the matter was adjourned to this date.

Learned AGA submits that the then Investigating Officer Mr. K.T. Yalagi, Retd. ASI., has since retired. However as per the directions of this Court, he is present in the Court today. No further explanation beyond the complaint and its reflection in the charge sheet is forthcoming on behalf of the respondent/State. There is absolutely no material placed on record to show that Murtuja Chaman Sheke the accused in the crime and the petitioner are one and the same person. On a specific query made by this Court, the Investigating Officer who is present in the Court submits that he got some information from an informer that one Murtuja Chaman Sheke is the ultimate recipient of money and further that the said person is the petitioner only. Beyond this, there is no material to link the petitioner with the crime. He also further submitted that the Head Constable attached to the Police Station prepared the charge sheet and he only affixed his signature on it. It is thus clear that the police have included name of one Murtuja Chaman Sheke in the charge sheet based on informer''s information without any investigation. The petitioner is sought to be tried in C.C. No. 645/2014 on the premise that the person arrayed in the charge sheet and the petitioner herein are one and the same, which is also based on the version of a police informer. However, absolutely no material is placed before the Court to substantiate this claim. This only reflects the poor state of the criminal investigation by the police.

I am conscious of various pronouncement of the Hon''ble Apex Court to be extremely cautious and guarded while exercising inherent powers under Section 482. However, in my considered view, this case merits consideration. A free citizen of this country cannot be foisted with a case and made to undergo the ordeal of prosecution even when the identity of the accused is in question. There is much for the prosecution to explain in this case but suffice to state that proceeding against the petitioner deserve to be quashed. Hon''ble Supreme Court in the case of Prashant Bharti Vs. State of NCT of Delhi, (2013) 2 AD 89 : AIR 2013 SC 2753 : (2013) CriLJ 3839 : (2013) 1 Crimes 195 : (2013) 2 JT 240 : (2013) 3 RCR(Criminal) 399 : (2013) 1 SCALE 652 : (2013) 9 SCC 293 : (2013) AIRSCW 4428 : (2013) 1 Supreme 493 has held as follows:

"22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv Thapar vs. Madan Lal Kapoor, wherein this Court inter alia held as under: (SCC pp. 347-49, paras 29-30)

"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution''s/complainant''s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C.:

30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e., the material is of sterling and impeccable quality?

30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e., the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."

Now, I proceed to examine the facts of case on hand tested by applying the parameters delineated by the Hon''ble Supreme Court.

(i) It is the specific case of petitioner that he is not the person who is named as accused No. 3 in the charge sheet.

(ii) In order to refute the allegations of false implication, the respondent - State has not produced any material in these proceedings.

(iii) The Investigating Officer who is present in the Court has admitted that based on an informer''s version charge sheet was prepared by a head constable and he has only lent his signature.

In view of the aforesaid discussion, it can be safely held that the petitioner herein is not accused No. 3 arrayed in the charge sheet. Therefore, the charge against him are unsustainable in law. Consequently, he can be compelled to undergo further ordeal of attending proceedings in C.C. No. 645/2014.

Accordingly, this petition stands allowed. Proceedings in C.C. No. 645/2014 on the file of JMFC, Banahatti qua the petitioner stand quashed.

The respondent - State is at liberty to bring the real accused No. 3 to justice in accordance with law.

Ordered accordingly.