Assainar v. State of Kerala and K. Damodaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **FRIDAY, THE 1ST DAY OF AUGUST 2014/10TH SRAVANA, 1936** ## **Crl.MC.No. 3818 of 2014 ()** **--------------------------LPC.NO. 14/2012 OF ADDL.SESSIONS COURT (ADHOC-II), KASARAGODE CRIME NO. 27/2008 OF ADHUR POLICE STATION , KASARGOD DISTRICT** **-----------------------** ## **PETITIONER/ACCUSED:** **---------------------------------------** **ASSAINAR, AGED 27 YEARS,S/O.JABIR, R/AT BALANADUKKAM, MULIYAR VILLAGE, KASARAGOD DISTRICT.** ## **BY ADV. SRI.KODOTH SREEDHARAN** ## **RESPONDENT(S)/COMPLAINANT:** **----------------------------------------------------** ## **1. STATE OF KERALA,** - **THROUGH THE STATION HOUSE OFFICER ADHUR, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **2. K.DAMODARAN,** **CIRCLE INSPECTOR OF POLICE, ADHUR POLICE STATION, KASARAGOD DISTRICT - 671 121.** **R1 BY PUBLIC PROSECUTOR SMT. S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 3818 of 2014 () -------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: -------------------------------------------ANNEX I: TRUE COPY OF THE FINAL REPORT IN CRIME NO.27/2008 DATED 21/1/2008 BY THE ADHUR POLICE. ANNEX II: TRUE COPY OF THE JUDGMENT IN S.C.NO.58/2009 BY THE ADDITIONAL SESSIONS COURT, KASARAGOD. ANNEX III: TRUE COPY OF THE ORDER IN CRL.M.C NO.6117/13 DT: 13/12/13 BY THIS HON'BLE COURT.** ## **RESPONDENT(S)' ANNEXURES: NIL** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **K. RAMAKRISHNAN, J. -----------------------------------Crl.M.C No.3818 of 2014 ---------------------------------------------------** Dated this the 01[st] day of August, 2014 ## **O R D E R** This is an application filed by the fourth accused in Crime No. 27/2008 of Adhur Police Station and LPC 14/2012 on the file of Additional Sessions Court (Adhoc)-II, Kasaragod to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). 2. It is alleged in the petition that the petitioner has been arrayed as fourth accused in Crime No.27/2008 of Adhur Police Station along with other accused persons alleging offences under Sections 143, 147, 148, 308, 353, 427 r/w 149 of the Indian Penal Code. After investigation final report was filed and it was committed on the Court of Sessions, Kasaragod, where it was originally taken on file as SC 58/2009 and made over to Additional Sessions Court (Ad-hoc)-II, Kasaragod for disposal. The petitioner could not appear before the court below during the course of trial. The accused Nos. 1 to 3, 5, 7 to 19, 21, 22, 24, 25, 27, 29 to **Crl.M.C No.3818 of 2014** **2** 31, 23, 28, 26 and 6 have faced the trial and they were acquitted as per Annexure-II judgment and the case against the present petitioner was taken on file as S.C 466/11 and since he did not appear, the case was transferred to the register of long pending cases as LPC 14/2012. Further case against twentieth accused was quashed by this Court as per Annexure-III order in Crl.M.C 6117/13 and except the petitioner, others were already acquitted. In view of the fact that other accused persons have already been acquitted, no purpose will be served by proceeding with this case and the petition is also entitled to get the benefit of that order of acquittal of other accused persons who faced the trial and the case against him has to be quashed. Since the petitioner has no other remedy to approach this Court seeking the following relief: “to call for records and quash the entire prosecution proceedings pending in S.C 58/2009 split up and refiled as LPC 14/2012 on the file of Additional Sessions Court (Ad-hoc)-II, Kasaragod and final report in Crime No. 27/2008 dt.21/01/2008 on the file of the Judicial First Class Magistrate Court, Kasaragod against the petitioner.” **Crl.M.C No.3818 of 2014** **3** 3. Since the petitioner was shown as absconding accused, as directed by this Court he later surrendered before the Additional Sessions Court (Ad-hoc)-II, Kasaragod and he was granted bail. It is evidenced by the report dated 23.07.2014. 4. Considering the law involved in the matter, the petitioner has been admitted today and disposed of after hearing the Counsel for the petitioner and the learned Public Prosecutor appeared for the respondent. 5. The Counsel for the petitioner submitted since most of the accused who faced trial were acquitted by the court below on the basis that the prosecution has failed to prove the case as alleged by them and doubted the genesis of the prosecution case itself. So no purpose will be served by allowing this case to continue as it will only amount to wastage of judicial time. So he is entitled to get the benefit of order of acquittal of other accused persons and the case against him has to be quashed on that basis. Further this Court has already quashed the proceedings against **Crl.M.C No.3818 of 2014** **4** twentieth accused on this basis. So he prayed for allowing the application. 6. The application was opposed by the learned Public Prosecutor on the ground that acquittal of other accused is not a ground for acquitting the co-accused who did not face trial in view of the dictum laid down in **Moosa** ## **v. Sub Inspector of Police, 2006(1)KLT 552.** 7. It is an admitted fact that the petitioner has been arrayed as fourth accused in Crime No.27/08 of Adhur Police Station, which was suo moto registered by the Police in respect of the incident happened on 20.01.2008 at 7.00 p.m, in which some of the Police Officers have been attacked and got injured, alleging offences under Sections 143, 147, 148, 308, 353, 427 r/w 149 of the Indian Penal Code. After investigation, final report was filed and it was taken on file as CP 191/08 on the file of Judicial First Class Magistrate Court, Kasaragode and case against the petitioner was committed and it was originally taken on file as S.C 466/11 whereas case against accused Nos. 1 to 3, 5, 7 to 19, 21, 22, 24, 25, 27, 29 to 31, 23, 28, 26 and 6 was **Crl.M.C No.3818 of 2014** **5** taken on file as S.C 58/09 and as per Annexure-II judgment, the learned Additional Sessions Court (Ad-hoc)-II, Kasaragod had acquitted those accused persons, after recording a finding that the evidence adduced on the side of prosecution does not inspire confidence regarding the genesis of the case put forward by the prosecution regarding the incident and giving that benefit acquitted those accused persons. Since, the petitioner did not appear in S.C 466/11, the case against him was later transferred the register of long pending case as LP 14/12. Now he had surrendered and taken bail. The case against the original twentieth accused was not committed and was pending as CP No.245/08. Later the twentieth accused filed Crl.M.C 6117/13 before this Court and this Court by Annexure-III judgment allowed the application and quashed the case against him giving him the benefit of acquittal of other accused in SC No. 58/09 by the Additional Sessions Court (Ad-hoc)-II, Kasaragod. 8. It is true that in the decision reported in **Moosa v. Sub Inspector of Police, 2006(1)KLT 552,** the Full **Crl.M.C No.3818 of 2014** **6** Bench of this Court has held that acquittal of other accused persons is not a ground for acquitting the co-accused who did not face trial. But in the same decision it has been observed that if the substratum of the prosecution case has been shattered in the earlier case and on that basis accused persons were acquitted, then that benefit can be given to the accused who did not face trial and case against him can be quashed as allowing the prosecution as against other accused persons who did not face trial will only amount to wastage of judicial time. 9. In this case, it is seen from Annexure-II judgment that the learned Additional Sessions Judge has disbelieved the case of the prosecution and come to a definite conclusion that the evidence adduced on the side of the prosecution do not inspire confidence regarding the real genesis of the incident put forward by the prosecution and on that basis, the case against the accused persons who faced trial was ended in acquittal. If that be the case, there is no possibility of conviction of the present accused also even if the case against him is allowed to continue as the **Crl.M.C No.3818 of 2014** **7** prosecution case has not been believed by the learned Additonal Sessions Judge and that benefit was given to the accused persons who faced the trial. Further this Court has already quashed the case against twentieth accused on the basis of Annexure-A3 judgment. So in the circumstances, this Court feels as allowing the case to continue as against the present petitioner and making the lower court to follow the entire procedure of trial will amount to wastage of judicial time. only and the petitioner is also entitled to get the benefit of order of acquittal passed by the Additional Sessions Judge in SC 58/2009 as prosecution case has been shattered in that case. So this Court feels that it is a fit case were power under Section 482 of the Code has been invoked to quash the proceedings as against the petitioner as well. So the application is allowed and further proceedings in Crime No.27/2008 of Adhur Police Station of Kasaragode District which was earlier pending before the Additional Sessions Court (Ad-hoc)-II, Kasaragod as SC 466/11 and later pending as LPC 14/12 and now refiled after **Crl.M.C No.3818 of 2014** **8** the surrender of the petitioner as directed by this Court is quashed. Office is directed to communicate this order to the concerned court immediately. Sd/-K. RAMAKRISHNAN, Judge lsn