Arafath @ Yazir Arafath v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945 CRL.MC NO. 9923 OF 2023 ``` ``` CRIME NO.1540/2014 OF KOLLENGODE POLICE STATION, PALAKKAD AGAINST THE ORDER/JUDGMENT CC 746/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS,CHITTUR ``` ## **`PETITIONER(S)/ACCUSED IN C.C.NO.746/2021:`** ``` ARAFATH @ YAZIR ARAFATH AGED 30 YEARS, S/O KAMARUDHEEN, NEAR POTHAMPADAM WAREHOUSE, MUTHALAMADA, PALAKKAD, PIN - 678508 ``` ``` BY ADVS. SARATH M.S. B.PREMNATH (E) ``` ## **`RESPONDENT(S)/STATE:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT P.O., ERNAKULAM, PIN - 682031 ``` ## **`BY ADV.`** ``` SMT SREEJA V, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C.No.9923 of 2023 ``` 2 **P.V.KUNHIKRISHNAN, J. -----------------------------Crl.M.C. No.9923 of 2023 ---------------------------------------------Dated this the 21[st] day of November, 2023** ## **O R D E R** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioner is one of the accused in Crime No.1540/2014 of Kollengode Police Station, Palakkad District, which is now pending as C.C. No.746/2021 before the Judicial First Class Magistrate Court, Chittur. The above case is charge sheeted against the petitioner and others alleging offences punishable under Section 279 ``` Crl.M.C.No.9923 of 2023 ``` 3 r/w 34 of IPC and under Section 3(1) of PDPP Act. 3. It is submitted that the co-accused were already acquitted as per Annexure-A3 judgment. Hence, the continuation of the proceedings against the petitioner is an abuse of process of court. 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the co-accused were already acquitted by the trial court and the continuation of the trial against the petitioner will be an abuse of process of court because the substratum of the prosecution case is shattered. The Public Prosecutor submitted that the petitioner has to face trial before the lower court and this court may not invoke the powers under Section 482 of the Code. 4 ``` Crl.M.C.No.9923 of 2023 ``` 5. This Court in **Moosa v. Sub Inspector of Police (2006 (1) KLT 552), Abbas T.K. v. State of Kerala (2013 KHC 336)** and in **Ashraf Kancheriyil v. State of Kerala (2011(2) KHC 812)** considered the powers of this court to invoke Section 482 of the Code to quash the proceedings based on the acquittal of co-accused. The dictum laid down by this court in the above judgment is that, if substratum of prosecution case is shattered by the judgment of acquittal of the coaccused that could be taken into account while considering the request to quash the proceedings. After going through the judgment of the trial court, I am of the considered opinion that the continuation of the prosecution against the petitioners will be an abuse of process of court. It will be beneficial to extract the relevant portion of ``` Crl.M.C.No.9923 of 2023 ``` 5 ## Annexure-A3 judgment by which the co-accused were acquitted: “16. PW1 was the Inspecting Assistant Commissioner, Commercial Tax Department, Chittur. On 20.12.2014 he went to Kannimari Sale Tax Check Post with PW2 and Krishnakumar in the department jeep bearing no.KL 01 AX 9931. While doing vehicle checking at Kannimari Sale Tax Check Post, at about 7.00 P.M. he signalled to intercept 407 tempo bearing KL 9T 6702 carried load. The vehicle was not stopped and moved forward. He followed the 407 tempo in the department jeep. He deposed that 407 tempo drove at high speed. PW2 deposed that 407 tempo drove in a negligent manner. PW1 and 2 could not say that any danger caused to human life. The high speed of the vehicle alone is not the criteria for deciding that the vehicle drove in a rash or negligent manner. It is seen that PW2 followed the 407 tempo on its back at the same speed limit. In examination in chief PW1 deposed that he could identify accused and could not depose who drove the 407 tempo. But in cross examination by learned counsel for accused, PW1 deposed that the person who was ``` Crl.M.C.No.9923 of 2023 ``` 6 standing in the box wearing blue shirt was the driver of 407 tempo and the person who wear red colour shirt was the person sitting in the 407 tempo. PW2 also identified accused who were present before the court. They deposed that they identified accused subsequently after incident from the police station. From the evidence of PW1 and 2 it is seen that A1 drove the 407 tempo on 20.12.2014. Regarding the rash or negligent driving of A1, PW1 and 2 could not depose that the driving of accused caused or so as to cause any danger to human life. They could not depose whether any of such instance happened while A1 drove the 407 tempo. Hence, it could not be concluded that A1 drove the 407 tempo in a rash or negligent manner as to endanger human life from Kannimari to Chulliyarmedu. 17. The other point to be proved is that whether accused committed mischief to the department jeep of Commercial Tax Department, Chittur. PW1 deposed that he followed 407 tempo about 40km and at Chulliyarmedu PW2 overtake the 407 tempo, at that time the tempo hit on the back side of department jeep and caused damage to the jeep. PW2 deposed that the head light and bumper of department jeep ``` Crl.M.C.No.9923 of 2023 ``` 7 was damaged. PW1 and 2 deposed that when the department jeep overtake the 407 tempo, the tempo hit on the back of jeep. It is seen from the evidence of PW1 and 2 that both vehicle drove at high speed one after the other. They could not depose that A1 intentionally hit on the department jeep with intent to cause damage to the jeep, the government property. Such evidence is not come out from PW1 and 2. The damage caused to the jeep is seen from the evidence of PW1 and 2 and Ext.P14 MVI report. PW1 and 2 deposed that 407 tempo hit on the department jeep when the jeep overtake the tempo. The negligence from the side of both vehicle driver can be seen and intention of A1 to commit mischief could not be seen. From the evidence of PW1, 2 and Ext.P17, P18 documents it is seen that KL 01 AX 9931 belong to Commercial Tax Department and is a government property. But prosecution failed to establish with evidence that accused caused damage to the department jeep and thereby committed mischief to government property. Points are found against prosecution.” ## 6. From the above, it is clear that the 8 ``` Crl.M.C.No.9923 of 2023 ``` substratum of the prosecution case is shattered by the judgment delivered by the lower court, while acquitting the co-accused. Therefore, this court is of the view that the continuation of the prosecution will be an abuse of process of court and it will be a judicial waste of time. Therefore, this Crl.M.C can be allowed. Hence this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner in C.C. No.746/2021 on the file of Judicial First Class Magistrate Court, Chittur arising from Crime No.1540/2014 of Kollengode Police Station, Palakkad District, are quashed. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` Crl.M.C.No.9923 of 2023 ``` 9 ## **`APPENDIX OF CRL.MC 9923/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1 ``` ``` TRUE COPY OF THE F.I.R. DATED 26/12/2014 IN CRIME NO.1540/2014 OF KOLLENGODE POLICE STATION, PALAKKAD DISTRICT ``` ``` ANNEXURE A2TRUE COPY OF THE CHARGE SHEET IN CRIME NO.1540/2014 OF KOLLENGODE POLICE STATION, PALAKKAD DISTRICT DATED NIL ``` ``` ANNEXURE A3TRUE COPY OF THE JUDGMENT DATED 13/12/2021 IN C.C. NO.688/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHITTUR ``` ``` RESPONDENTS EXHIBITS:NIL ``` ``` //TRUE COPY//PA TO JUDGE ```