B.A. Muhammed Suhail v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 CRL.MC NO.2110 OF 2021 ``` ``` CRIME NO.238/2006 OF Manjeswar Police Station, Kasargod AGAINST THE ORDER/JUDGMENT CC 9/2019 OF CHIEF JUDICIAL ``` ## **`MAGISTRATE ,KASARAGOD`** ## **`PETITIONER/ACCUSED:`** ``` B.A.MUHAMMED SUHAIL AGED 41 YEARS S/O. ABDULLAKUNHI HAJI,B.M.HOUSE, COPRA BAZAR, KUMBLA P.O., KASARAGOD ``` ``` BY ADV K.A.SALIL NARAYANAN ``` ## **`RESPONDENT/STATE & OTHERS:`** ``` STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (ARISING FROM CRIME 238/906 OF THE MANJESHWARAM POLICE STATION, KASARAGOD DISTRICT) ``` ## **`OTHER PRESENT:`** ``` SRI.RENJITH.T.R, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO.2110 OF 2021 ``` ``` 2 ``` ## **P.V.KUNHIKRISHNAN, J.** ## **-------------------------------Crl.M.C. No.2110 of 2021** ## **----------------------------------------------** Dated this the 27[th] day of November, 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. This Criminal Miscellaneous Case is filed by one of the accused in Crime No238/2006 of Manjeshwaram Police Station, Kasaragod. It is submitted that co-accused were already acquitted and the case against the petitioner is now pending as CC.No.9/2019 because the petitioner was not able to appear before the lower court. 3. It is submitted that the continuation of the proceedings against the petitioner is an abuse of process of law in the light of Annexure A3 judgment. 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the co-accused were ``` CRL.MC NO.2110 OF 2021 ``` ``` 3 ``` 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. 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 coaccused. 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 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 ``` CRL.MC NO.2110 OF 2021 ``` ``` 4 ``` ## beneficial to extract the relevant portion of the judgment by which the co-accused is acquitted: 9. POINT: Though prosecution has cited 15 witnesses only 10 witnesses turned up to give evidence in favour of the prosecution case. PW3 is the victim and the defacto complainant. He could not be identify accused in the dock. He denied that accused in the dock were the persons who threatened him by showing revolver. F.I. Statement lodged by him regarding the occurrence was marked as Ext.P2. Though the entire F.I.Statement was read over to the witness he disowned material points. He was declared hostile and learned D.D.P. was permitted to cross-examine him. No evidence in favour of prosecution has brought out during cross-examination by the learned D.D.P. He admitted that the case has been settled between himself and the accused and he does not want to prosecute the case. Contradictions in Ext.P1 F.I. Statement was marked as Ext.P3. During cross-examination by the learned defence counsel he admitted that he signed Ext.P1 statement without reading and understanding its contents. PWs. 1 and 2 are independent witnesses. They could not identify the accused persons and PW3. So also they denied that they had witnessed the incident. Witnesses were declared hostile and learned D.D.P was permitted to cross-examine them. No evidence in favour of prosecution has brought out during cross-examination by the learned D.D.P. Though the entire 161 statements read over to the witnesses they disowned material points. PW4 and 5 are remaining occurrence witnesses. They also turned hostile to the ``` CRL.MC NO.2110 OF 2021 ``` ``` 5 ``` prosecution. Scene mahazar was marked as Ext.P4 through PW5. PW6 is the U.D.Clerk attached to the Collectorate Office, Kasaragod. She deposed that as directed by the police she had produced gun llcence proceedings of A1 to Police and copy of the proceedings were marked as Ext.P5. PW7 is the H.C. who recorded Ext.P2 F.I.Statement and prepared Ext.P6 F.I.R. PW3 is the Armour A.S.I. of A.R Camp, Kasaragod. He deposed that he had examined the revolver sent from this Court. He inspected the revolver and found the same as serviceable. Report filed by him in that regard was marked as Ext.P7. PW9 to 11 are the Police Officers who conducted the investigation and laid the charge sheet. PW11 is the detecting officer. He deposed that on 27.7.2006 at about 5.30 PM while himself and other policemen were conducting law and order duty and when they reached at a place by name Uppala he got reliable information regarding the arrival of accused persons involved in Manjeshwaram Police Station Crime No. 238/06 in 3 motor cars. On getting this information himself and his fellowmen reached at a place by name Jotkal and started Inspect vehicles. At about 5.45 PM he saw one Indica car, and 2 Qualiz cars were coming through that place. He caused to stop the Indica Car and examined the vehicle. Under the driver seat he could find one revolver and the same was examined in the presence of witnesses. The revolver has six chambers. He could find 4 bullets and 2 empty cases. Revolver was serviceable one and he could give the details of the revolver. Al to A4 were the passengers in the car. He collected their names and addresses. Then he examined the Qualis car having Registration No. KL-14A 5115. From the ``` CRL.MC NO.2110 OF 2021 ``` ``` 6 ``` bottom portion of the driver seat, he has traced out a metal box containing 8 cartridges. He collected names and addresses of A5 to 10 travelled in the car. Then he examined the Qualis Car having Registration No.KA 19Z 9126. Nothing was traced out from that car. A11 to 16 were the inmates of the car. Then he searched the bodies of all accused persons. 13 mobile phones, 7 ATM cards, 8 wrist watches, 9 purses, 3 bunches of keys, one health card, and one gun licence were seized into custody. The above articles were taken into custody under Ext.P1 seizure mahazar. The articles were marked as M01 to MO6 series. The dollars recovered from the car was marked as M08 series. Vehicles were also seized Into custody. A1 to 16 were arrested in accordance with law. He produced the accused persons before Court along with remand application. 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 alone in CC.No.9/2019 pending ``` CRL.MC NO.2110 OF 20217 ``` before the Chief Judicial Magistrate, Kasaragod in Crime No238/2006 of Manjeshwaram Police Station, Kasaragod are quashed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** ska ``` CRL.MC NO.2110 OF 2021 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 2110/2021`** ``` PETITIONER ANNEXURES ANNEXURE-A1CERTIFIED COPY OF THE FIR IN CRIME 238/06 OF THE MANJESHWAR POLICE STATION, KASARAGOD DISTRICT ANNEXURE-A2CERTIFIED COPY OF THE CHARGE SUBMITTED BY THE POLICE IN THE ABOVE CASE ANNEXURE-A3CERTIFIED COPY OF THE JUDGMENT IN CC 158/07 DATED 31.01.2008 OF THE CHIEF JUDICIAL MAGISTRATE, KASARAGOD ```