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2019 Supreme(Kar) 1755
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
B.A.PATIL, J.
NAVEEN S/O MUSHAPPAGOWDA MULKIGOWDAR - Petitioner
Vs.
STATE OF KARNATAKA THROUGH POLICE INSPECTOR VIDYANAGAR POLICE STATION - Respondent
CRIMINAL PETITION NO.101302/2019
Decided On : 24-07-2019
For the Petitioner:SRI. M. T. NANAIAH, SENIOR COUNSEL AND SRI. V. G. PATIL FOR SRI.ARAVIND D. KULKARNI, ADVOCATE
For the Respondent: SMT. SEEMA SHIVA NAIK, HCGP
Headnote:
Indian Penal Code, 1860 – Sections 143, 147, 148, 302, 120(B), 201 R/w. Section 149 – Code of Criminal Procedure, 1973 – Sections 482, 164, 306, 307 – Quashment of Order – Pardon – Petition has been filed by petitioner accused Nos.1, 2, 4 and 5 under Section 482 Cr.P.C. praying to quash order passed by V Addl. District and Sessions Judge, sitting at Hubballi in SC for offences punishable under Sections 143, 147, 148, 302, 120(B), 201 R/w. Section 149 of IPC – Accused No.3 filed an application under Sections 306 and 307 of Cr.P.C. asking Court to grant pardon in his favour and he has also given statement under Section 164 Cr.P.C. before Magistrate. – Magistrate vide order dated 18.03.2019, allowed application and treated accused No.3 as accomplice by tendering him pardon subject to some conditions. – Being aggrieved by same, accused/petitioners are before this Court – Held, Only question which has to be answered is whether pardon is voluntary or not has to be decided. If it is said to be voluntary, then pardon can be given. – If procedure adopted by Court while giving pardon is not a judicial trial and if said pardon is not in accordance with Section 306 Cr.P.C., same can be urged only at time of final hearing. – Pardon is granted to accused to meet out situation. – Where a serious offence is alleged to have been committed by several persons and there were no witnesses to prove case of prosecution, then with aid of evidence of anyone of accused persons, who had been granted pardon, can be used to prevent failure of justice. – Only because there were no witnesses, accused cannot be allowed to escape from a lack of evidence. – This proposition of law has been also laid down by Hon’ble Apex Court in case of Bangaru Laxman quoted supra. – Application not signed by accused No.3. But order sheet discloses that, when accused No.3 was produced before Court, his signature was taken and advocate filed said application on his authority. In that light, said contention is not acceptable. – Application not signed by accused No.3. But order sheet discloses that, when accused No.3 was produced before Court, his signature was taken and advocate filed said application on his authority. – In that light, said contention is not acceptable. – Court is of considered opinion that Court below has exercised its discretion in a right manner and there is no perversity or illegality in passing said order. – No doubt there are some mistakes in observations, but court has to see substantial justice as stated in decisions quoted supra – Court do not find any illegality or irregularity in order of trial Court. – Court is of considered opinion that petitioners have not made out any good grounds to allow petition. – Petition Allowed
ORDER :
This petition has been filed by the petitioner accused Nos.1, 2, 4 and 5 under Section 482 Cr.P.C. praying to quash the order dated 18.03.2019 passed by V Addl. District and Sessions Judge, Dharwad sitting at Hubballi in SC No.70/2018 for the offences punishable under Sections 143, 147, 148, 302, 120(B), 201 R/w. Section 149 of the IPC.
2. I have heard the learned Senior Counsel Sri. M. T. Nanaiah and learned counsel Sri. V. G. Patil for petitioners/accused and Smt. Seema Shiva Naik, HCGP for respondent No.1-State. Though notice is served to respondent No.2, there is no representation.
3. The genesis of the complaint are that, the son of the complainant Dr. Babu has opened a hospital in the name of Shushruta Nursing Home along with other partners at Vidyanagar, Hubballi. Four daughters of the complainant have got married. His son Dr. Babu was residing with his wife and two children in Jayanagar. The parents of the wife of said Dr.Babu, her brother and his wife were residing in a neighbouring house by the side of the house of Dr.Babu. They have opened a Mahindra Garage in the name of Rajrajeshwari and there were some financial transactions between Dr.Babu and his brother-in-law and subsequently difference arose between them. On 12.03.2018 at about 1.00 pm, when the complainant was in his native place, he called his son Dr.Babu over phone, but he did not take the call; continuously he dialed but there was no response from his son Dr.Babu and as such, complainant came to Hubballi along with his brother Jagadish Shankar Hundekar and made enquiry with the staff of hospital. They told that Dr. Babu came to the hospital at about 11.00 am and immediately he left the hospital and thereafter he has not returned to the hospital. As the complainant suffered with shock, he took treatment in Shivashakti hospital and thereafter at about 7.00 pm he came back to his native place. It is further alleged that on 13.03.2018 at about 9.00 am, once again he called his son Dr.Babu over the phone and his phone was switched off. Again he came to Hubballi along with his friend and made an enquiry and came to know that since yesterday he has not come to the hospital. He made enquiries with the family members and he was under the impression that because of the financial transactions he might have gone from there. Even they kept the search on but they did not trace him. At about 6.00 pm, he found Dr.Babu’s car and his two mobiles near the house of Naveen and on enquiry he came to know that his son Dr.Babu has left his car and mobile in the said car. Suspecting that Naveen might have abducted his son Dr.Babu for financial transaction, he filed the complaint. Subsequently, he came to know that his son Dr.Babu has been murdered. On the basis of the complaint a case is registered and after investigation, charge sheet was laid against accused/petitioners.
4. That being the fact, accused No.3 filed an application under Sections 306 and 307 of Cr.P.C. asking the Court to grant pardon in his favour and he has also given statement under Section 164 Cr.P.C. before the Magistrate. The learned Magistrate vide order dated 18.03.2019, allowed the application and treated accused No.3 as accomplice by tendering him pardon subject to some conditions. Being aggrieved by the same, the accused/petitioners are before this Court.
5. It is the submission of the learned Senior Counsel that the impugned order is perverse and not sustainable in law. The application for pardoning and making him an approver is not signed by accused No.3. It is his further submission that, when the statement of the accused was recorded under Section 164 Cr.P.C, he was nervous and was not comfortable and as such, the said statement is not a voluntary statement as contemplated under the law. It is his further submission that the said act of accused No.3 is exculpatory in nature. If it is exculpatory in nature, then he cannot be an approver. In order to appreciate the application under Section 306 of
