Abdulmubarak @ Mubarak v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 19[TH] DAY OF JULY 2023 / 28TH ASHADHA, 1945`** ## **`CRL.MC NO. 1907 OF 2023 AGAINST THE ORDER/JUDGMENT IN SC 144/2023 OF ADDITIONAL DISTRICT COURT, OTTAPALAM`** ## **`PETITIONER/S:`** ``` ABDULMUBARAK@MUBARAK AGED29YEARS S/O.MUHAMMED, THEKKEVALAPPILHOUSE, NHANGATTIRIPOST,PATTAMBITALUK, - PALAKKADDISTRICT,PIN679303 BYADVS. R.SREEHARI HAMZAA.V. VIGNESHS. ``` ## **`RESPONDENT/S:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, HIGHCOURTOFKERALA, - COCHIN,PIN682031 2THESTATIONHOUSEOFFICER THRITHALAPOLICESTATION, THRITHALAPOST,PATTAMBITALUK, - PALAKKADDISTRICT,PIN679534 3MOHAMMEDSHAFEEQ@SHAFEEQ AGED32YEARS S/O.ABOOBACKER, PULIKKALHOUSE,NHANGATTIRIPOST, PATTAMBITALUK, - PALAKKADDISTRICT,PIN679303 ``` ``` CRL.MCNO.1907OF2023 ``` ``` 2 ``` ``` 4ARUN@ARUNK.P AGED30YEARS S/O.CHANDRAN, KONIKKUZHIPARAMBILHOUSE, NHANGATTIRIPOST,PATTAMBITALUK, - PALAKKADDISTRICT,PIN679303 ``` ``` BYADVRAJESHSUKUMARANK SMT.NEEMATV,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON19.07.2023,THECOURTONTHESAMEDAYPASSEDTHE FOLLOWING: ``` ``` CRL.MCNO.1907OF2023 ``` ``` 3 ``` ## **ORDER** The instant petition is filed under Section 482 of the Code of Criminal Procedure (“the Code”) for the sake of brevity. 2. The petitioner herein is the sole accused in S.C. No. 144 of 2023 on the file of the Additional District and Sessions Judge, Ottappalam. In the said case, they are accused of having offences punishable under Sections 341, 323, 324, 506(ii), 308 r/w section 34 of the IPC. The aforesaid case has arisen from Crime No. 153 of 2018 of Thrithala Police Station. As many as three persons were arrayed as the accused in the final report, and the petitioner herein was arrayed as accused No.2. The petitioner herein failed to appear before the Sessions Court, and the case against him was split up. The trial proceeded with as against accused Nos. 1 and 3, and by Annexure-9 judgment dated 17.11.2022, they were found not guilty of the offence and were acquitted of all charges. 3. It is on the basis of the acquittal of the co-accused that this petition is filed seeking to quash the proceedings on the ground that the substratum of the case against the petitioner has been shattered. The petitioner also contends that the victims have filed Annexures-10 and 11 ``` CRL.MCNO.1907OF2023 ``` ``` 4 ``` affidavits asserting that they have no subsisting grievance against the petitioner and that they have no objection in quashing the proceedings. 4. Sri. Sreehari, the learned counsel appearing for the petitioner, has relied on the judgments rendered by this Court in **Moosa v. Sub Inspector of Police[1]** [2006 (1) KLJ 349], **Abbas T.K. v. State of Kerala** [2013 KHC 336], **Jalalu Rajan and Anr v. State of Kerala** [2013 KHC 177] and **Ashraf Kancheriyil v. State of Kerala** [2011 (2) KHC 812] and it was urged that the continuance of proceedings against the petitioner herein would serve no purpose. Reliance is also placed on **State of M.P. v. Laxmi Narayan,[2] Gian Singh v. State of Punjab[3]** , **Narinder Singh v. State of Punjab[4]** , and it is argued that on the basis of the affidavits filed by the party respondents, this Court will be justified in terminating the proceedings. 5. I have heard the learned Public Prosecutor. 6. I have gone through the Annexure-3 final report and Annexure-9 judgment of acquittal rendered by the court below. It is borne out from Annexure-9 that none of the prosecution witnesses had deposed in tune with the prosecution case. The Court below, after > 1 > 2 [(2019) 5 SCC 688] > 3 (2012) 10 SCC 303 > 4 2014 (6) SCC 466 ``` CRL.MCNO.1907OF2023 ``` ``` 5 ``` meticulous analysis of the evidence on record, came to the conclusion that the accused were entitled to acquittal under Section 232 of the Code. As held by a three-Judge Bench of this Court in **Moosa v. Sub Inspector of Police (2006 (1) KLT 552),** though the reasoning of the judgment contained or appreciation of evidence in the case of a co-accused therein are not grounds to attract any relief under Section 482 of the Code of Criminal Procedure, a case where the substratum of the case is lost, is an exception to the above rule. In the case on hand, the party respondents have also filed affidavits stating that they have no subsisting grievance. 6. I am of the firm view that no purpose is going to be served by directing the petitioner herein to undergo the ordeal of a trial at this stage. It can only be a futile exercise and will only serve to waste precious judicial time, which can be used for more productive work. The prospects of conviction are nil in view of the affidavits filed by the party respondents. Furthermore, no evidence of worth could be adduced by the prosecution during the previous trial. In that view of the matter, I am of the considered opinion that this Court will be well justified in invoking the powers under Section 482 of the Code and in quashing the proceedings. ``` CRL.MCNO.1907OF2023 ``` ``` 6 ``` 7. Resultantly, this petition is allowed. Annexure-3 final report in Crime No. 153 of 2018 of the Thrithala Police Station and all further proceedings pursuant thereto against the petitioner now pending as S.C.No. 144 of 2023 on the file of the Additional District and Sessions Judge, Ottappalam, are quashed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` CRL.MCNO.1907OF2023 ``` ``` 7 ``` ## **`APPENDIX OF CRL.MC 1907/2023`** ## **`PETITIONER ANNEXURES`** |`Annexure1`|`CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN`| |---|---| ||`CRIME NO.153/2018 OF THRITHALA POLICE STATION,`| ||`PALAKKAD DISTRICT, DATED 19/02/2018`| |`Annexure2`|`CERTIFIED COPY OF THE FIRST INFORMATION STATEMENT`| ||`GIVEN BY THE 3RD RESPONDENT ON 19/02/2018`| |`Annexure3`|`CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.`| ||`153/2018 OF THRITHALA POLICE STATION, PALAKKAD`| ||`DISTRICT, SUBMITTED BEFORE JUDICIAL FIRST CLASS`| ||`MAGISTRATE COURT , PATTAMBI DATED 01/01/2019`| |`Annexure4`|`CERTIFIED COPY OF THE WITNESS LIST IN CRIME NO.`| ||`153/2018 OF THRITHALA POLICE STATION, PALAKKAD`| ||`DISTRICT`| |`Annexure5`|`TRUE COPY OF THE DAILY STATUS DETAILS DATED`| ||`01/11/2019 WITH RESPECT TO C.P.NO.4/2019 OF THE`| ||`JUDICIAL FIRST CLASS MAGISTRATE COURT, PATTAMBI`| ||`OBTAINED FROM THE E-COURTS WEBSITE`| |`Annexure6`|`TRUE COPY OF THE DAILY STATUS DETAILS DATED`| ||`25/07/2022 WITH RESPECT TO C.P.NO.57/2019 OF THE`| ||`JUDICIAL FIRST CLASS MAGISTRATE COURT, PATTAMBI`| ||`OBTAINED FROM THE E-COURTS WEBSITE`| |`Annexure7`|`TRUE COPY OF THE DAILY STATUS DETAILS DATED`| ||`19/01/2023 WITH RESPECT TO C.P.NO.1/2023 OF THE`| ||`JUDICIAL FIRST CLASS MAGISTRATE COURT, PATTAMBI`| ||`OBTAINED FROM THE E-COURTS WEBSITE`| |`Annexure8`|`TRUE COPY OF THE CASE DETAILS WITH RESPECT TO`| ||`SESSIONS CASE NO.144/2023 OF THE COURT OF`| ||`ADDITIONAL DISTRICT & SESSIONS JUDGE, OTTAPALAM`| ||`OBTAINED FROM THE E-COURTS WEBSITE`| ``` CRL.MCNO.1907OF2023 ``` ``` 8 ``` ``` Annexure9CERTIFIEDCOPYOFTHEORDERDATED17/11/2022 PASSEDBYTHECOURTOFADDITIONALSESSIONSJUDGE, OTTAPALAMINSESSIONSCASENO.1161/2019 ``` - `Annexure10 AFFIDAVIT IN ORIGINAL DULY SWORNED AND SIGNED BY THE 3RD RESPONDENT/ DEFACTO COMPLAINANT DATED 27/02/2023` ``` Annexure11AFFIDAVITINORIGINALDULYSWORNEDANDSIGNEDBY THE4THRESPONDENT/VICTIMDATED27/02/2023 ```