Ashraf A. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945** **CRL.MC NO. 876 OF 2022** ## **PETITIONER/ACCUSED NOS.3:** ASHRAF.A, AGED 32 YEARS, SON OF MUHAMMEDKUNHI.C.K BEERICHERY, THRIKKARIPUR VILLAGE, KASARGOD DISTRICT, PIN - 671310 BY ADVS. P.K.SUBHASH K.REEHA KHADER ## **RESPONDENT/DEFACTO COMPLAINANT/STATE** STATE OF KERALAREPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALAERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** RENJITH . T.R PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC No.876 of 2022 2 ## **P.V.KUNHIKRISHNAN** **- - - - - - - - - - - - - - - - - - - - -** CRL.MC No.876 of 2022 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 15[th] day of September, 2023 ## **ORDER** 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 the accused in S.C.No.213/2023 on the files of Additional District and Sessions Court-III, Kasaragod arising from Crime No.40/213 of Chandera Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 143, 147, 148, 342, 323, 324, 326, 506(ii) r/w Section 149 IPC. 3. The prosecution case is that, on 19.01.2013 at 21 hours at a place called Bakkirimukku in South Thrikkaripurt, the accused persons formed themselves into an unlawful assembly and attacked the defacto complainant and others with iron rod. The case was in the long pending case and when this matter came up for consideration on 05.04.2023, this Court passed the following order:- CRL.MC No.876 of 2022 3 “ _This Crl.M.C. is filed for quashing the proceedings against the petitioner herein mainly on the ground that all the other accused in this case were acquitted as per Annexure 2 judgment passed by the trial court. It is seen from the records that, the petitioner was absconding and now the case is pending as L.P.C. No.24/2020 on the file of Additional District and Sessions Court – III, Kasargod._ _In such circumstances, the petitioner is directed to surrender before the trial court within a period of two weeks. To enable the petitioner to surrender before the court, it is directed that the nonbailable warrant against the petitioner shall be kept in abeyance for a period of two weeks. In case the petitioner submits applications for recalling the warrant and bail, after giving prior notice thereof to the prosecution, the same shall be considered by the trial court on the date of surrender itself._ _Post after vacation.”_ 4. Now, it is submitted that the petitioner surrendered before the court and the case is now renumbered as S.C.No.213/2023. It is submitted that coaccused were already acquitted as per Annexure 2 judgment. 5. 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 CRL.MC No.876 of 2022 4 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. 6. 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 judgement of acquittal of the co-accused 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 petitioner will be an abuse of process of court. It will be beneficial to extract the relevant portion of the judgment by which the CRL.MC No.876 of 2022 5 ## co-accused is acquitted:- _“8. The Point: According to prosecution, all accused formed into an unlawful assembly and attacked CW1 to CW5 with dangerous weapons. CW1 is examined as PW1 and be deposed that CW2 to CW5 are his friends and they were attacked by a group of people in January 2013 at about 11 pm. He deposed that he along with CW2 to CW5 went to Bakkirimukku for attending a marriage and they reached that place in a bike and a car. PW1 also deposed that they were standing by the road side for enquiring the way to the house for attending a marriage. At that time, a group of people came there and attacked them with weapons. He sustained injury and initially taken to Co-operative Hospital, Payyannur and from there to Pariyaram Medical College and then to Unity Hospital, Mangalore. Police recorded his statement from Unity Hospital, Mangalore and that FI statement is identified and marked as Ext.P1. PW1 deposed that he does not know the persons, who attacked them._ _9. CW2, CW3 and CW5 are examined as PW2 to PW4. All of them deposed that they sustained injuries from a place namely, Bakkirimukku in January 2013 at about 11 pm. But they does not know the persons, who attacked them. CW4 was reported in Malaysia and his evidence was dispensed with as the prosecution failed to secure the presence of CW4 within a reasonable time. PW5 is cited as an eye witness to the incident. But he also turned hostile to the prosecution case and denied having witnessed the incident._ _10. Since all material witnesses has not supported the prosecution case, the learned Additional Public Prosecutor has given up CW7 to CW10 as no purpose will be served by examining them. The Senior Civil Police Officer of Chandera Police Station, who recorded Ext.P1 Fl statement of PWI from Unity Hospital, Mangalore and registered the crime is examined as PW6. The FIR is marked as Ext.P5. PW7 and PW8 are the Additional Sub Inspectors of Chandera Police Station, who conducted the investigation of this case, PW8_ CRL.MC No.876 of 2022 6 _prepared Ext.P6 scene mahazar and arrested accused No.8, preparing arrest memo and inspection memo. PW8 seized the weapons used by the accused and produced that weapon before the court. He also recorded the statement of witnesses No.1 to 8. The investigation was completed by PW7 and filed final report before the Court._ _11. As stated earlier, the case of the prosecution is that accused No.1 to 8 along with 12 other identifiable persons attacked CW1 to CW5 with dangerous weapons and caused simple and grievous injuries to them. Though PW1 to PW5 deposed before the court that they were attacked by a group of people in January 2013 at about 11 pm, they deposed that they does not know the persons who attacked them. Therefore the evidence adduced by the prosecution only shows that PW1 to PW5 sustained injuries in an incident happened on 19.1.2013 at Bakkirimukku. But, there is no evidence to the effect that accused No.1, 3, 4 and 6 to 8 are the persons who inflicted injuries to PW1 to PW5. Therefore accused No.1, 3, 4 and 6 to 8 are entitled for an acquittal under section 232 Cr.P.C._ _In the result, A1, A3, A4 and A6 to A8 are found not guilty for the offences punishable under section 143, 147, 148, 341, 324, 326, 308 r/w Section 149 IPC and hence they are acquitted under section 232 of Cr.P.C. Their bail bond stands cancelled and they are set at liberty. Case against A2 and A5 split up and refiled.”_ 7. From the above, it is clear that the 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 CRL.MC No.876 of 2022 7 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 alone in S.C.No.213/2023 on the files of Additional District and Sessions Court-III, Kasaragod arising from Crime No.40/213 of Chandera Police Station are quashed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** bng CRL.MC No.876 of 2022 8 ## **APPENDIX OF CRL.MC 876/2022** PETITIONER ANNEXURES Annexure1 A TRUE COPY OF THE FINAL REPORT IN CRIME NO.40/2013OF CHANDERA POLICE STATION, KASARGOD DISTRICT Annexure2 COPY OF THE JUDGEMENT IN S.C 905 OF 2014 ON THE FILES OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE - III Annexure3 COPY OF THE JUDGEMENT IN CRL.MC NO. 4327 OF 2020 Annexure4 COPY OF THE JUDGEMENT IN CRL.MC.NO.2935 OF 2021 OF THIS HON'BLE COURT.