ABOOBACKER v. STATE OF KERALA

``` CRL.MC NO. 7089 OF 2022 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944 CRL.MC NO. 7089 OF 2022 ``` ``` CRIME NO.75/2013 OF Kasaragod Police Station, Kasargod LPC 33/2019 OF CHIEF JUDICIAL MAGISTRATE ,KASARAGOD PETITIONER/ACCUSED: ``` ``` ABOOBACKER, AGED 31 YEARS S/O. SHAFI, RESIDING AT HOUSE NO.KMC.1/102, CHERANKAI HOUSE, KASABA VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT, PIN - 671121 BY ADVS. T.MADHU C.R.SARADAMANI SHAHID AZEEZ RESHMA SANTHOSH RENJISH S. MENON ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2THE STATION HOUSE OFFICER KASARAGOD POLICE STATION, KASARAGOD DISTRICT, PIN – 671121 ``` ``` BY SRI.SANGEETHA RAJ- PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 7089 OF 2022 ``` ``` 2 ``` ## O R D E R This Crl.M.C has been filed to quash the proceedings against the petitioner in LP No.33/2019 on the file of the Chief Judicial Magistrate Court, Kasaragod (for short, 'the court below') on the ground of acquittal of the remaining accused. 2. A crime was registered by the Kasaragod Police as Crime No.75/2013 against 12 accused persons alleging offences punishable under Sections 143, 147, 148, 341, 323, 324, 354, 326 and 153A r/w 149 of IPC. 3. The prosecution allegation in short is as follows: On 27.1.2013 at about 5.30 pm, at the ground at Shanthi Nagar in Adukathubayal Village, while CWs 4 to 8 were playing cricket, a bus named ‘Kalmas’ bearing Registration No.KL-11U-1539 reached near the ground and at that time, the cricket ball hit on the bus. Then, the accused 12 in numbers who belong to Muslim community formed themselves into an unlawful assembly and in prosecution of their common object, committed rioting armed with ``` CRL.MC NO. 7089 OF 2022 ``` ``` 3 ``` deadly weapons and pelted stones towards CWs.4 to 8 who belong to Hindu community. Then the 1[st] accused beat on the face of CW4 Rajesh, pushed him down and accused Nos.6 and others beat CW4 and other witnesses with stick and cricket stump, kicked them and thereby caused injuries to them. When CW1 Priya intervened in the matter and tried to prevent the same, 1[st] accused caught hold on her neck, pulled her down, torn her maxi and thereby outraged her modesty. During the course of incident, the gold chain worn by CW1 was lost and thereby she has sustained loss of Rs.50,000/-. Further, when CW1 fell down, 2[nd] accused beat her with cricket stump and thereby caused grievous injury on her left ring finger and 3[rd] accused kicked her with shoes. Then the 2[nd] accused pulled down CW2 Sujitha by kicking and 2[nd] accused beat on the left leg of CW3 Salini with cricket stump and thereby caused injury to them. Further, 4[th] accused beat on the back of CW5 Biju with stick, 5[th] accused beat on the head and body of CW4 Rajesh, 7[th] accused hit on the head of CW7 Nikhil with key of ``` CRL.MC NO. 7089 OF 2022 ``` ``` 4 ``` bike and accused Nos.4, 8 and others beat on his back and thereby caused injuries to them. Thus, the accused are alleged to have committed the above said offences. 4. After completion of the investigation, final report was filed. The case was committed to the Court below and numbered as CC No.66/2017. The accused Nos.1 to 6, 8 and 9 alone faced trial. After full fledged trial, they were acquitted as per Annexure A3 judgment. The case against the petitioner and the accused Nos.7 and 10 were split up and refiled as C.C No.222/2019. According to the petitioner, in view of the acquittal of accused Nos.1 to 6, 8 and 9, the substratum of the prosecution case is dislodged. It is in these circumstances, he has filed this Crl.M.C invoking S.482 of Cr.P.C. 5. I have heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 6. Annexure A3 would show that to prove the prosecution case, de facto complainant as well as another injured were ``` CRL.MC NO. 7089 OF 2022 ``` ``` 5 ``` examined as PW1 and PW2. But they did not support the prosecution case. Hence, the prosecution gave up the remaining witnesses. PW1 deposed that none of the accused were present at the alleged place of the occurrence and that she stated the name of the accused to the police on the basis of hearsay. She has also stated that the entire dispute has been settled and she has no complaint. PW2 also did not support the prosecution version. A reading of Annexure A3 judgment would show that the substratum of the prosecution case is dislodged. 7. The Supreme Court of India in Sahadevan & another v. State of Tamil Nadu [2012 (6) SCC 403] has held that, if the entire prosecution case has been found to be unreliable and the prosecution as a whole has not been able to prove its case beyond reasonable doubt, then benefit should accrue to all the accused persons and not merely to the accused, who faced trial. The Full Bench of this Court in Moosa v. Sub Inspector of Police [2006 (1) KLT 552] has held that in a case where the very substratum of the ``` CRL.MC NO. 7089 OF 2022 ``` ``` 6 ``` case is lost by the acquittal of the co-accused, the power under Section 482 of the Cr.P.C. could be invoked. For these reasons, I am of the view that this is a fit case where jurisdiction vested with this court u/s 482 of Cr.P.C could be invoked. Accordingly, all further proceedings against the petitioner in LP No.33/2019 on the file of the Chief Judicial Magistrate Court, Kasaragod stands hereby quashed. The Crl.M.C is allowed. ## **`Sd/-`** DR. KAUSER EDAPPAGATH JUDGE ab ``` CRL.MC NO. 7089 OF 2022 ``` ``` 7 ``` ## **`APPENDIX OF CRL.MC 7089/2022`** ``` PETITIONER ANNEXURES ``` - `Annexure-A1 THE CERTIFIED COPY OF THE FIR DATED 27/1/2013 IN CRIME NO.75/2013 OF KASARAGOD POLICE STATION` - `Annexure-A2 THE CERTIFIED COPY OF THE FINAL REPORT DATED 7/2/2017 IN CRIME NO.75/2013 OF KASARAGOD POLICE STATION` - `Annexure-A3 THE TRUE COPY OF THE JUDGMENT DATED 27/7/2022 IN C.C.NO.66/2017 ON THE FILES OF THE LEARNED CHIEF JUDICIAL MAGISTRATE'S COURT; KASARAGOD` - `Annexure-A4 THE CERTIFIED COPY OF THE DEPOSITION OF PW1 IN C.C.NO.66/2017 ON THE FILES OF THE LEARNED CHIEF JUDICIAL MAGISTRATE'S COURT, KASARAGOD` - `Annexure-A5 THE CERTIFIED COPY OF THE DEPOSITION OF PW2 IN C.C.NO.66/2017 ON THE FILES OF THE LEARNED CHIEF JUDICIAL MAGISTRATE'S COURT, KASARAGOD` - `Annexure-A6 THE CERTIFIED COPY OF THE DEPOSITION OF PW3 IN C.C.NO.66/2017 ON THE FILES OF THE LEARNED CHIEF JUDICIAL MAGISTRATE'S COURT, KASARAGOD` - `Annexure-A7 THE CERTIFIED COPY OF THE DEPOSITION OF PW4 IN C.C.NO.66/2017 ON THE FILES OF THE LEARNED CHIEF JUDICIAL MAGISTRATE'S COURT, KASARAGOD` - `Annexure-A8 THE CERTIFIED COPY OF THE DEPOSITION OF PW5 IN C.C.NO.66/2017 ON THE FILES OF THE LEARNED CHIEF JUDICIAL MAGISTRATE'S COURT, KASARAGOD` - `Annexure-A9 THE CERTIFIED COPY OF THE DEPOSITION OF PW6 IN C.C.NO.66/2017 ON THE FILES OF THE LEARNED CHIEF JUDICIAL MAGISTRATE'S COURT, KASARAGOD` - `Annexure-A10 THE CERTIFIED COPY OF THE DEPOSITION OF PW7 IN C.C.NO.66/2017 ON THE FILES OF THE LEARNED CHIEF JUDICIAL MAGISTRATE'S COURT, KASARAGOD` - `Annexure-A11 THE CERTIFIED COPY OF THE DEPOSITION OF PW8 IN C.C.NO.66/2017 ON THE FILES OF THE LEARNED CHIEF JUDICIAL MAGISTRATE'S` ``` CRL.MC NO. 7089 OF 2022 ``` ``` 8 ``` ``` COURT, KASARAGOD ``` ``` Annexure-A12THE CERTIFIED COPY OF THE DEPOSITION OF PW9 IN C.C.NO.66/2017 ON THE FILES OF THE LEARNED CHIEF JUDICIAL MAGISTRATE'S COURT, KASARAGOD ``` RESPONDENTS ANNEXURES: NIL