Anas v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944 ``` ``` CRL.MC NO. 5882 OF 2022 ``` ``` CC 625/2021 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, NADAPURAM CRIME NO.753/2015 OF NADAPURAM POLICE STATION, KOZHIKODE ``` ## **`PETITIONER/ACCUSED NO.1:`** ``` ANAS AGED 35 YEARS S/O AYOOB KOMBIYULLATHIL THAZHAKKUNI HOUSE KUMMAMKODE PO, NADAPURAM ``` ``` BY ADVS. M.P.PRIYESHKUMAR DIVYA T.P. ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN – 682031 ``` ``` 2SUB INSPECTOR OF POLICE NADAPURAM POLICE STATION KOZHIKODE DIST., PIN - 673504 ``` ``` ADV SREEJA V -SR PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 5882 OF 2022 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the 1[st] accused in Crime No.753/2015 of Nadapuram Police Station, which is now pending as C.C. No.625/2021 of Judicial First Class Magistrate Court I, Nadapuram. The offence alleged against the petitioner and other accused are under Sections 143, 147, 353 and 506(i) read with Section 149 of Indian Penal Code. 2. The prosecution case is that on 09.09.2015 at 11.30 hours, the Police officers went to the house of one Ayoob, for arresting him in execution of a warrant in Crime No.416/2015 of Nadapuram Police Station which was pending as L.P. No.31/2015 before the Judicial First Class Magistrate Court, Nadapuram. However, when the Police Party reached the house of the said Ayoob the accused Nos. 1 and 2 along with eight other unidentifiable formed themselves into an unlawful persons assembly and prevented them from entering the house. They also threatened the Police party. Accordingly, they prevented the arrest of the said Ayoob. Annexure A is the First Information Report and Annexure B is the final report submitted by the Police. Earlier the ``` CRL.MC NO. 5882 OF 2022 ``` ## **`3`** Judicial First Class Magistrate Court had taken cognizance of the said offence as C.C. No.1333/2015 and in the trial followed the 2[nd] accused participated. Annexure E is the judgment passed by the learned Magistrate by which the 2[nd] accused was found not guilty and accordingly he was acquitted. The case against the petitioner was split up and the same now stands refiled as C.C. No.625/2021 which is now pending before the Judicial First Class Magistrate Court I, Nadapuram. This Crl.M.C. is fled to quash all further proceedings pursuant to Annexure B as against the petitioner herein. 3. Heard Sri.M.P. Priyesh Kumar, learned counsel appearing for the petitioner and Smt.Sreeja V., learned Public Prosecutor for the State. 4. The contention put forward by the learned counsel for the petitioner is that, consequent to the order of acquittal passed by the learned Magistrate in Annexure E in respect of the 2[nd] accused the substratum of the prosecution case is lost and hence no fruitful purpose would be served by continuing the prosecution as against the petitioner herein. Reliance was also placed on the principles ``` CRL.MC NO. 5882 OF 2022 ``` ``` 4 ``` laid down by this Court in **Moosa v. Sub Inspector of Police** [2006(1) KLT 552]. 5. On the other hand, the learned Public Prosecutor would oppose the aforesaid contention. It is pointed out that the petitioner is the 1[st] accused and the question of culpability of the petitioner can be decided only after the trial is conducted against him. The order of acquittal passed in respect of the 2[nd] accused cannot be relied on by the petitioner for the purpose of securing an order to quash the proceedings under Section 482 of Cr.P.C. 6. I have perused the records and heard the contentions from either side. As mentioned above, Annexure E is the judgment passed by the learned Magistrate in respect of the prosecution against the 2[nd] accused. It is discernible therefrom that the crucial witnesses were examined as PW1 and PW2. After carefully scrutinizing the depositions of the said witnesses the learned Magistrate noted certain glaring discrepancies therein. It was pointed out that, even though the specific case of the prosecution was that, the Police party visited the house of Ayoob, for the ``` CRL.MC NO. 5882 OF 2022 ``` ## **`5`** purpose of conducting a search to effect the arrest of the said Ayoob, absolutely no documents to substantiate the same were produced. No advance search memo was prepared while conducting the search. PW2 has specifically stated in this regard that, the Police party went to the house of the Ayoob, after preparing an advance search memo and sending the same to the court. However, no such advance memo was produced. Moreover, during the cross examination of PW2 he stated that, he was not even aware as to who prepared the said search memo. 7. Further, even though it was contended that there was a warrant pending against Ayoob, no such warrant was also produced before the court to substantiate the same. Besides the same, another glaring illegality noticed was with respect to the discrepancy in the evidence of PW2. In the chief examination of PW2, he deposed that when he entered the bedroom on the upper floor of the house after forcibly opening it, he saw the door behind that room lying open. However, in the cross examination, he stated that said room was having only one door. Another crucial aspect taken noted by ``` CRL.MC NO. 5882 OF 2022 ``` ``` 6 ``` the learned Magistrate was that, even though there were several houses near the place of occurrence and the people were allegedly gathered at the time of occurrence, none of the said persons were cited and examined by the prosecution as witnesses. The only persons cited by the prosecution as witnesses were Police Officers. The said aspect was also specifically taken note of by the learned Magistrate to arrive at the conclusion that the prosecution case was not properly established. 8. Another discrepancy noted by the learned Magistrate is that, the entry regarding the offence has been made in the Ext.P2 General Diary at 17.00 hours on that day. However, as per the deposition of PW2, after the incident he came to the Police Station only at 19.58 hours and he registered the crime. Therefore, the possibility of an entry being made at 17.00 hours, was not there. 9. Thus, after taking all the above aspects, a definite finding was arrived at by the learned Magistrate to the effect that the prosecution could not establish the case put forward by them. When carefully scrutinizing all these aspects, it can be seen that ``` CRL.MC NO. 5882 OF 2022 ``` ``` 7 ``` even though the order of acquittal in Annexure E was only against the 2[nd] accused, the impact of the same is in respect of the entire prosecution case. The discussions and findings made by the learned Magistrate would indicate that, the prosecution failed to adduce proper evidence to establish the manner in which the incident alleged to have occurred. Therefore, in my view, in the light of the said specific finding which become final, the substratum of the case is lost. Therefore, this is a fit case in which the powers of this Court under Section 482 of Cr.P.C. can be invoked in the light of the principles laid down by this Court in **Moosa’s** case (supra). In the result, this Crl.M.C. is allowed. Annexure B final report submitted in Crime No.753/2015 on the file of the Nadapuram Police Station and all further proceedings against the petitioner in C.C. No.625/2021 on the file of the Judicial First Class Magistrate Court I, Nadapuram are hereby quashed. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` CRL.MC NO. 5882 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 5882/2022`** ``` PETITIONER ANNEXURES Annexure ACOPY OF THE FIR IN CRIME NO. 753/2015 OF NADAPURAM POLICE STATION Annexure BCERTIFIED COPY OF THE FINAL REPORT IN CC 625/2021 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT NADAPURAM Annexure CCERTIFIED COPY OF THE DEPOSITION OF PW2 Annexure DCERTIFIED COPY OF THE DEPOSITION OF PW1 Annexure ECERTIFIED COPY OF THE JUDGMENT OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT NADAPURAM IN CC 1333/2015 DATED 03.04.2021 ```