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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY, 2022
BEFORE
THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO.2585 OF 2019
BETWEEN:
STATE OF KARNATAKA BY
CCB POLICE,
BANGALORE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BANGALORE-1. ...PETITIONER
(BY SRI V.S.HEGDE, SPP II)
AND:
1. T NASEER @ NASIR @
THANDIANTAVIDA NASEER@ UMARHAZI @ HAZI
S/O ABDUL MAJEED K
AGED ABOUT 32 YEARS,
R/O BAITHULHILAL, KURUVAA ROAD,
THAYIL, KANNUR CITY,
KERALA - 691390.
2. EDAPANA THODIKA ZAINDUDDIN @ ABDUL SATTAR
@ ABDUL SALAM @ SALEEM,
S/O LATE MOHAMMED E.T.,
AGED ABOUT 66 YEARS,
(15.08.1951),
NATIVE OF KONDOTTY,
PALEYANGADI, KERALA - 673 638.
2
3. SARAFARAZ NAWAZ @ SEJU @ HAKEEM
@ SURFUR NAWAZ,
S/O P.K. HASSAN (POOVATHUMVEETIL
KOCHUNNY HASSAN),
AGED ABOUT 39 YEARS
(D.O.B. 16.09.1977),
R/O KANIYATUKUDIYI HOUSE,
PERINGALA POST
PALLIKARA, ERNAKULAM DISTRICT,
KERALA - 691394.
4. EDAPANA THODIKA SHARAFUDEEN @ SHARAFU,
S/O EDAPANA THOL SATTAR @
ABDUL SALAM @ SALEEM,
AGED ABOUT 37 YEARS, (20.05.1979)
R/O NOORI MANZIL, KARUVAN KALLU,
MALLAPURAM DISTRICT,
KERALA - 691 445.
5. ABDUL JABBAR @ SATTAR @ JABBAR
S/O KUNJI BHAVA,
AGED ABOUT 44 YEARS,
SUNNI MUSLIM, THAYATTIL HOUSE,
KAVANJEREVALAMERDUR POST,
MANGALAMVAI B.P. ANGADI,
TIRUR, MALAPPURAM DISTRICT,
KERALA - 691 445.
6. A.E. MANAF,
S/O KUNJI BHAVAN,
AGED ABOUT 23 YEARS,
ILAMBILL HOUSE,
PARMBAI, MUMBARAM POST,
KANNUR DISTRICT,
KERALA - 691 390.
7. P. MUJEEB,
3
S/O MOIDEEN,
AGED ABOUT 35 YEARS,
SUNNI MUSLIM,
PALLIPURATH HOUSE,
MUNEERA MANZIL, MUTHUKUTTY,
CHAKKARAKAL VILLAGE,
MOWANCHERY POST, KANNUR TALUK
AND DISTRICT,
KERALA - 691390.
8. V.P. MOHAMMED SAKARIYA @ SAKARIYA
S/O LATE V. KUNHI MOHAMMED
AGED ABOUT 21 YEARS,
SUNNI MUSLIM, MOBILE TECHNICIAN
R/AT VANIYAM PARAMBATH KUTTIYIL HOUSE,
PARAPPANAAGADI VILLAGE,
PUTHANPEEDIKA POST
TIRURANGADI TALUK,
MALLAPURAM DISTRICT,
KERALA - 691445.
9. BADARUDHEEN N @ NOOR,
S/O NOOR MUHAMMED,
AGED ABOUT 35 YEARS,
ULLATTIL HOUSE, RAZAK MANZIL,
KARUKAPPILLY LINE,
ELAMAKKARA POST,
COCHIN 26, KERALA.
10. FAIZAL,
S/O LATE ABDUL RAHEEM,
AGED ABOUT 34 YEARS,
R/O UNNAVODHAL NEW QUARTERS,
THAZECHARRAR, KANNUR CITY,
KANNUR P.S. LIMITS,
MALLAPURAM DISTRICT,
KERALA. 676504.
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11. ABDUL JALEEL
S/O LATE MOOSA
AGED ABOUT 46 YEARS,
S/O KARIPAYI,
PUDIYAOURA, KADACHARA,
KANNUR, KADACHARA POST,
ITAKAD P.S. LIMITS,
MALLAPURAM DISTRICT,
KERALA - 691 445.
12. UMAR FAROOQ @ UMAR-UI-FAROOQ
S/O CHEKUTTI HAZI,
AGED ABOUT 45 YEARS
(APPROXIMATE)
RAYAN KANDATH, FATHIMA MANZEEL
CHATTIPADI, PARAPPANAGADI
MALLAPURAM DISTRICT,
KERALA - 691 445.
13. IBRAHIM MOLVI,
S/O LATE MOIDU,
AGED ABOUT 45 YEARS,
(APPROXIMATE),
PUDANGAL HOUSE, PRINATALAL,
WAYANDADU,
KERALA-691 177.
14. SAFAZ,
S/O SHAMSHUDDIN,
AGED ABOUT 36 YEARS,
KURUVAA ROAD, PUDANGAL HOUSE,
PARINATATAL, WAYANADU,
KERALA-691 177.
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15. P.A.SALEEM,
S/O MUMMUTTI,
AGED ABOUT 41 YEARS,
FATHIMA MAHAL, PARAM BAHI
GRAMA, VENUGUDU PANCHAYITHI,
KANNUR, KERALA - 691390.
16. SAMEER,
S/O LATE REHAMATULLA
AGED ABOUT 38 YEARS
FAJANESTA, MAZAPADAM,
THANA KANNUR,
KERALA - 691390.
17. SARFUDDIN,
S/O ABDUL REHAMAN,
AGED ABOUT 46 YEARS,
K.K. RAHIMAS, HOUSE
EDAKKADU PANCHAYATHI,
KADALAYI POST, KURUVA,
KANNUR DISTRICT,
KERALA - 691390.
18. THAJUDDIN,
S/O ABDUL RAZAK,
AGED ABOUT 34 YEARS
KERAKKETHOPPIL HOUSE,
MAKHANAAYIMANNA, MANAM POST
PARAVOOR, ERNAKULAM (OWN HOUSE)
PRESENT ADDRESS: KEREKKETHOPIL HOUSE,
VEDIMARA, MANAMA POST,
KUNJIRAMBAAYIL, PARAVOOR,
ERNAKULAM
KERALA - 691 394.
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19. ABDUL KHADER,
S/O ABDULLA,
AGED ABOUT 46 YEARS
R/AT NO.78, NIRMALAGIR HEGGALA VILLAGE
AND POST, VEERAJEPETE,
COORG - 571218.
20. P.B. SAABERR @ SAABEER P BHUHARI
@ SABEER
S/O BHUHARI,
AGED ABOUT 38 YEARS,
MUDAKKADU HOUSE,
PAARAPPURAM, KANNATTANADU TALUK,
PERAMBAVOOR, ERNAKULAM.
KERALA - 691 394.
21. ABDUL NAZIR MOUDANY,
S/O ABDUL SAMAD,
AGED ABOUT 45 YEARS
(APPROXIMATE),
ALABRA, KARUKAPALLI,
DESHABHIMAANI ROAD,
KALOOR POST, JUMMA MOSQUE,
ERNAKULAM, KERALA - 691394
AND ANWARSERRY
KARUNAGAPALLY,
SASTAMKOTA, KOLLAM,
KERALA - 691372. …RESPONDENTS
(BY SRI BALAKRISHNAN, ADVOCATE FOR R1 - R20,
SRI P USMAN, ADVOCATE FOR R21)
----
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET
ASIDE
THE
DATED
18.01.2018
PASSED
IN
S.C.NO.1480/2010 AND 1481/2010 ON THE FILE OF THE XLVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,(SPECIAL
COURT FOR TRIAL OF CBI CASES) CITY CIVIL COURT,
7
BANGALORE CCH-49 ON APPLICATION FILED UNDER SECTION
311 OF CR.PC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THROUGH VIDEO CONFERENCE THE COURT MADE
THE FOLLOWING:
O R D E R
The charge sheet is filed for the offences punishable under
Sections 120(B), 121, 121(A), 302, 307, 326, 435 & 201 of IPC
against the respondents and other accused.
2.
After the statements of the accused were recorded
under Section 313 of Crpc , the prosecution filed an application
under Section 311 of CrPC to lead further evidence on the report
and the certificate issued under Section 65B of the Indian
Evidence Act. The said application came to be rejected by the
learned Sessions Judge. Hence, this petition.
3.
Sri V S Hegde, learned State Public Prosecutor-II
appearing for the Petitioner - State submits, firstly, that
certificate under Section 65B of the Indian Evidence Act can be
produced at any time of the trial and as such, the impugned
order passed by the learned Sessions Judge rejecting the
application filed under Section 311 of CrPC is not sustainable in
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law. In support, reliance is placed on the decision of the Apex
Court in the case of Arjun Panditrao Khotkar -vs- Kailash
Kushanrao Gorantyal and Ors., reported in (2020) 7 SCC 1.
4. Secondly, he submits that there is no bar for filing
successive applications under Section 311 of CrPC. In support,
he placed reliance on the decision of the Apex Court in the case
of Shailendra Kumar -vs- State of Bihar and Others, reported in
(2002) 1 SCC 655.
5. Thirdly, he submits that the report of an expert can
be produced at any time of trial as specified under Section 293
of CrPC. In support, he placed reliance on the decision of the
Apex Court in the case of P Gopalkrishnan @ Dileep -vs- State of
Kerala and Another, in Crl.A No.1794/2019.
6. Learned counsel appearing for the Respondents would
submit that the impugned order passed by the Trial Court is
perfectly legal and the same does not warrant any interference.
They further submitted that the accused who are languishing in
jail for more than eleven years will be put to extreme injustice if
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the prosecution is permitted to lead further evidence on report
as well as the certificate issued under Section 65B of the Indian
Evidence Act. They further submitted that the harmonious
reading of Paras - 52, 54, 55 and 56 of the decision of the Apex
Court in the case of Arjun Panditrao Khotkar (supra) clearly
indicates that the certificate under Section 65 B of the Indian
Evidence Act has to be produced at the time of filing of the
charge sheet and not at any stage of the trial.
7. I have carefully considered the submissions of the
learned counsel for the parties.
8. The points that arise for consideration are:
i)
Whether the prosecution can produce the report as
well as the certificate under Section 65B of the
Indian Evidence Act at any stage of the trial?
ii)
Whether the successive application under Section
311 of CrPC can be maintained?
9. Admittedly, the case was set out for arguments of the
parties and at that stage, the prosecution filed an application
under Section 311 of CrPC so as to lead further evidence on the
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report and certificate under Section 65B of the Indian Evidence
Act.
10. The Apex Court in the case of Anvar P.V -vs- P K
Basheer, reported in (2014) 10 SCC 473, observed that the
certificate issued under Section 65B of the Indian Evidence Act
must accompany the electronic record when the same is
produced in evidence. This decision was considered by the larger
Bench of the Apex Court in the case of Arjun Panditrao Khotkar
(supra), wherein after considering the ratio enunciated in the
case of Anvar P V, has held as under:
"52. We may hasten to add that Section 65-B does
not speak of the stage at which such
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