Ayoob v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 CRL.MC NO. 3074 OF 2023 ``` ``` AGAINST THE ORDER IN SC 731/2016 OF ADDITIONAL DISTRICT COURT-IV (CBI-II), ERNAKULAM CP 5/2003 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ``` ## **`ERNAKULAM`** ## **`PETITIONER/ACCUSED 8:`** ``` AYOOB, AGED 51 YEARS, S/O. SIDHIK, RESIDING AT VALIYAKATHU HOUSE, CHAVAKKAD TALUK, THRISSUR DISTRICT. PIN ., PIN - 680524 BY ADVS. R.O.MUHAMED SHEMEEM NASEEHA BEEGUM P.S. ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2DEPUTY SUPERINTENDENT OF POLICE, DYSP OFFICE, KARUNAGAPALLY, KOLLAM DISTRICT., PIN - 690544 ``` ## **`OTHER PRESENT:`** ``` SRI.M.P.PRASANTH, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 2 Crl.M.C.3074/2023 ## **P. V. KUNHIKRISHNAN, J. ------------------------------------------Crl.M.C.No.3074 of 2023 ------------------------------------------Dated this the 17[th] day of October, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed to quash the proceedings in S.C.No.731/2016 on the file of the Additional District and Sessions Court-IV, (CBI-II), Ernakulam arising from C.P.No.5/2003 of Additional Chief Judicial Magistrate Court, Ernakulam in Crime No.221/1992 of Sasthamcotta Police Station. It is submitted that the co-accused were already acquitted as per Annexure-A3. One of the accused approached this Court and this Court quashed the proceedings against the 2[nd] accused as per Annexure-A4 judgment. 2. Heard counsel for the petitioner and the Public Prosecutor. 3. The counsel for the petitioner submitted that the coaccused 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 3 Crl.M.C.3074/2023 face trial before the lower court and this court may not invoke the powers under Section 482 of the Code. 4. 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. 5. After going through the judgment of the trial court and Annexure-A4, 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 Annexure-A4, by which, the co-accused case is quashed: 7. I have considered the rival contentions and have perused Annexure A3 judgment. Certain significant findings in the aforesaid judgment goes to the very basis of prosecution case. The learned Sessions Judge had in paragraph 14 of the judgment concluded that the prosecution had miserably failed to convince the court 4 Crl.M.C.3074/2023 about the convening of any meeting by the accused. After criticizing PW5 and PW6, the learned Sessions Judge held that there is a total lack of evidence to prove that the 16 persons inside a room was carrying on any discussion, much less a discussion about the activities and future actions of the ISS. In fact, the court further found that there was no evidence to support the prosecution case of convening a meeting of the ISS by 16 persons. The court also went on to find that there was no attempt by the prosecution to even conduct a proper search or seal and secure the premises so that none could have access to the property till completion of the investigation. The court also criticized the investigation on the failure to trace out the commission of any unlawful activity by the persons arrested either by words spoken or written or by signs or by any physical representation, disrupting the sovereignty and integrity of the country. It was further found by the learned Sessions Judge that neither was there any evidence to prove the ownership or occupation of the building nor was there any evidence collected by the prosecution to show that any of the accused had knowledge about the keeping of MO1 revolver or cartridges. Even as regards the possession of gun powder, the learned Sessions Judge concluded that there was a total lack of any legal evidence to show that the accused kept it under their possession with the intention of endangering life. 8. Some of the crucial findings arrived at by the 5 Crl.M.C.3074/2023 ## learned Sessions Judge are extracted below :- _In paragraph 40. “But at the outset I may say that there was miserable failure on the part of both PW5 and PW6 to convince the court about the convening of any meeting. Just because of the fact that inside the room some persons were sitting and on seeing the police they stood up in a perplexed mood, one cannot jump to a conclusion that they were actually holding a meeting”._ _'In paragraph 46. “Thus, I repeat that the evidence collected by the prosecution in this case is far short of attracting the second limb of Section 10 of UAP Act as it stood in 1992 with respect to the convening meeting of an unlawful association.”_ _In paragraph 53. “Absolutely no evidence has been collected by the prosecution to the effect that any of these accused had any knowledge about the keeping of MO1 revolver, MO2 series and MO3 cartridge under the said pillow.”_ 9. On a reading of the above conclusions in the judgment of acquittal of accused 3, 4, 7, 15, 17 and 18, it is evident that the very edifice on which the prosecution built its case against accused 2 to 17 had eroded. All those accused stood trial on identical allegations. Petitioner falls within one of the 16 persons mentioned in the judgment. Therefore, these findings have a bearing on the culpability of the petitioner also. 10. In this context, it is appropriate to notice that the petitioner is presently aged 47 and he would have been only 16-17 years at the time of the alleged incident. 6 Crl.M.C.3074/2023 The sword of prosecution has been dangling over his head for the last 31 years. This is undoubtedly a traumatic experience for the petitioner and is a violation of his fundamental right to speedy trial. 11. Since the substratum of the prosecution case is apparently lost by virtue of the judgment of acquittal of the co-accused in SC.No.450/2009 on the files of the Additional Sessions Court-IV, Ernakulam, petitioner is certainly entitled to seek the benefit of such judgment. 12. On an appreciation of the role attributed to each accused, it is evident that petitioner and accused 3 to 17 are attributed the same role. Therefore all of them stand on similar footing. 13. In the decision in Moosa v. Sub Inspector of Police [2006 (1) KLT 552], this Court has delineated the circumstances when the benefit of acquittal of a coaccused can be extended to other accused. Petitioner's case falls within those category of cases especially in view of the judgment in Vipin and Another v. State of Kerala and Others [(2013) 3 KLJ 1]. The decision of the Supreme Court in Kaushal Verma and Others v. State of Chhattisgarh [(2021) 2 SCC 665] is also relevant in this context. 14. When the case of the petitioner is appreciated, in the light of the principles mentioned above, and in the light of the conclusions arrived at by the learned Sessions Judge, while acquitting the co-accused, this Court is satisfied that the continuance of the prosecution against the petitioner in SC.No.731/2016 on the files of the 7 Crl.M.C.3074/2023 Additional Sessions Court-IV, Ernakulam is an abuse of the process of the court. Therefore, all further proceedings against the petitioner in S.C.No.731/2016 on the files of the Additional Sessions Court - IV (CBI-II), Ernakulam are quashed. The Crl.M.C.is allowed as above.' 6. 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 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 S.C.No.731/2016 on the file of the Additional District and Sessions Court-IV, (CBI-II), Ernakulam arising from C.P.No.5/2003 of Additional Chief Judicial Magistrate Court, Ernakulam in Crime No.221/1992 of Sasthamcotta Police Station are quashed. Sd/- ## **P. V. KUNHIKRISHNAN JUDGE** Sbna/ 8 Crl.M.C.3074/2023 ## **`APPENDIX OF CRL.MC 3074/2023`** ``` PETITIONER ANNEXURES Annexure 1CERTIFIED COPY OF THE FIR IN CRIME NO 221 OF 92 OF SHASTHAMKOTTA POLICE STATION ``` ``` Annexure 2CERTIFIED COPY OF CHARGE SHEET NO.49/94 DATED 30.03.1994 IN SC NO. 731OF 2016 PENDING BEFORE THE ADDITIONAL DISTRICT AND SESSION COURT -IV, ERNAKULAM ``` ``` Annexure 3CERTIFIED COPY OF THE JUDGMENT DATED 31.08.2016 IN SC NO. 450 OF 2009 OF ADDITIONAL DISTRICT AND SESSION COURT (CBI-IL) -IV, EMAKULAM ``` ``` Annexure 4CERTIFIED COPY OF THE ORDER DATED 14 .03.2023 IN MC NO. 1253 OF 2023 ```