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High Court of KeralaSingle JudgeQuashed

BENNY JAMES v. THE STATE OF KERALA

Case / Petition Number:Crl.MC.No. 3510 of 2016

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Raja Vijayaraghavan V.
Judgment Date
2016-06-24
Court Decision / Holding
In the result, this petition will stand allowed. All further proceedings against the petitioner in LP No.18 of 2013 on the file of the Chief Judicial Magistrate, Manjeri, shall stand quashed.
Final Disposition
Quashed

Parties to the Case

Appellants / Petitioners

  • Benny James

Respondents

  • The State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam, Kochi-682 031; for the Sub Inspector of Police, Areacode Police Station, Malappuram District.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. Babu S. Nair, Advocate

Counsels for Respondents

  • • Public Prosecutor SMT. Sareena George

Case Synopsis & Summary

This is a Criminal Miscellaneous Case (Crl.MC. No. 3510 of 2016) before the High Court of Kerala at Ernakulam, decided by Justice Raja Vijayaraghavan V. The petitioner Benny James is the third accused in Crime No. 194/2003 of Areacode Police Station, Malappuram District, alleging offences under Section 3 read with Section 25(1)(a) and Section 5 read with Section 25(1)(c) of the Arms Act, 1969. After investigation, a final report was filed and the trial proceeded against accused nos. 1 and 2, while the 4th accused died; the case against the 1st and 2nd acquitted by the court by Annexure-B judgment dated 16.10.2012. The case against the petitioner, split up and refiled as LP No.18/2013 before the Chief Judicial Magistrate, Manjeri, remains pending. The petitioner contends that the substratum of the prosecution has been shattered because the seized weapon was not packed/sealed as required and was produced after about a year, raising serious doubts about the integrity of the process and possible tampering. The Public Prosecutor counters that the substratum has not been destroyed in a way that warrants quashing, noting no appeal was filed against the acquittals. The learned judge, citing Moosa v. Sub Inspector of Police (2006 (1) KLT 552) to permit an exceptional quashing where substratum is lost, ultimately holds that continuing the petition would be futile and quashes LP No.18/2013 against Benny James.

Provisions of Law Cited

Section 3 read with Section 25(1)(a) and 5 read with Section 25(1)(c) of the Arms Act, 1969

Legal Doctrines & Maxims

  • Substratum of the case doctrine

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant submits that the substratum of the case has been destroyed due to the incorrect and delayed sealing/packing of the firearm and the long delay before producing the weapon in court, which undermines the prosecution’s case. Annexure-B shows that co-accused were acquitted on grounds implying that the weapons and procedures were not properly followed. Since the substratum has collapsed, pursuing the petitioner to trial is futile. He relies on binding precedents, including Moosa v. Sub Inspector of Police, to contend that where the very foundation of the case is eroded, quashing is warranted even if other aspects of the evidence may not be directly fatal to the prosecution.

Contentions of Respondents

The respondents argue that the substratum of the case has not been completely destroyed; though the acquittals of co-accused exist, there is no direct and explicit finding that the core charges against the petitioner are unfounded or that the entire substrate is collapsed. The absence of an appeal against the acquittals does not automatically negate the possibility of proceeding, especially if the prosecution can still present a coherent case. The court should consider the precedents but not treat the acquittals as a determinative bar to trial in the present circumstances; the matter requires careful evaluation of the sealed weapon’s handling and the delay, with respect to the evidence available.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Moosa v. Sub Inspector of Police2006 (1) KLT 552PositiveThe Full Bench decision is cited to justify quashing where the substratum of the prosecution is destroyed, recognizing an exception to the general rule that does not automatically permit quashing in every such scenario.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938** ## **Crl.MC.No. 3510 of 2016** **------------------------------------------** ## **L.P.CASE NO. 18/2013 ARISING OUT OF C.C.NO. 247/2012 OF THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI** ## **CRIME NO. 194/2003 OF AREACODE POLICE STATION , MALAPPURAM DISTRICT** **------------------------** **PETITIONER(S)/ACCUSED :** **------------------------------------------** **BENNY JAMES, S/O. JAMES, NEDUNGATTU HOUSE, KODIYATHOOR, THOTTUMUKKOM, KOZHIKODE DISTRICT.** **BY ADV. SRI.BABU S. NAIR** **RESPONDENT(S)/STATE :** **---------------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031FOR THE SUB INSPECTOR OF POLICE, AREACODE POLICE STATION, MALAPPURAM DISTRICT.** ## **BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. **Crl.MC.No. 3510 of 2016** ## **------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE-A: CERTIFIED COPY OF THE FINAL REPORT/CHARGE IN CRIME NO. 194/2003 OF THE AREACODE POLICE STATION. ANNEXURE-B: CERTIFIED COPY OF THE JUDGMENT OF THE C.J.M., MANJERI IN C.C.NO.28/2008 DATED, 16.10.2012.** **RESPONDENT(S)' ANNEXURES :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE** Msd. ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ **Crl.M.C. No.3510 of 2016** -----------------------------------------Dated this the 24[th] day of June, 2016 ## **O R D E R** ## **~~~~~~~~** 1.Crime No.194 of 2003 of Areacode Police Station, Malappuram District, was registered against petitioner and three others alleging commission of offence punishable under Section 3 read with Section 25(1)(a) and 5 read with Section 25(1)(c) of the Arms Act, 1969. After investigation, final report was laid before the jurisdictional Magistrate. - 2.The prosecution allegation is that, on 28.8.2003 at about 5.30 a.m., the accused Nos. 1 to 3 were found in possession of a fire arm and ammunition without any license. The 4[th] accused is the person who is alleged to have manufactured the fire arm. Charge against the **Crl.M.C.No.3510/2016** **-2-** - 4[th] accused stood abated as he was no more at the time of filing the charge sheet. - 3.The petitioner, who is arrayed as the 3[rd] accused in the final report did not appear before the court and face the trial. The case was proceeded with against accused Nos. 1 and 2 and as per Annexure-B judgment dated 16.10.2012, they were extended the benefit of doubt and were acquitted. The case against the petitioner which was split up and refiled is now pending as L.P.No.18/2013 on the files of the Chief Judicial Magistrate Court, Manjeri. - 4.Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. I have gone through the materials on record as well . - 5.The learned counsel appearing for the petitioner referring to Annexure B judgment submitted that the accused No. 1 and 2 were acquitted on grounds which were of such a nature as to destroy the very edifice of the prosecution **Crl.M.C.No.3510/2016** **-3-** case. The court below had held that the fire arms and ammunition were not packed and sealed in accordance with law and the same was produced after almost a year from the date of seizure. According to the learned Counsel, the learned Magistrate had relied on binding pronouncements of the Apex Court as well as this Court to conclude that the prosecution case was flawed owing to the violation of mandatory procedures at the time of search and seizure. It was on its basis that the accused Nos. 1 and 2 were acquitted. According to the learned Counsel, the substratum of the case has been shattered and no purpose would be served in directing the petitioner to undergo the trial. - 6.The learned Public Prosecutor, on the other hand, submitted that this is not a case wherein the substratum of the case has been shattered. However, it was admitted that though the judgment of acquittal of accused Nos. 1 **Crl.M.C.No.3510/2016** **-4-** and 2 was rendered as early as on 16.10.2012, no appeal has been preferred against the same. 7.I have considered the rival submissions and I have gone though Annexure-B judgment of the court below. The learned Magistrate, referring to the binding precedents of the Apex Court, had concluded that the failure of the investigating officer to properly seal the fire arm, which was allegedly seized from the possession of the accused persons was fatal. It is also seen from paragraph No.12 that gross exception was taken by the learned Magistrate for the long delay in producing the seized weapon before the court. It appears that the weapon was produced before the court after a long lapse of one year. The possibility of tampering was also considered by the learned Magistrate and it was held that it could not be ruled out. **Crl.M.C.No.3510/2016** **-5-** 8. Having regard to the facts and circumstances, I am of the view that there is ample justification in the submission of the learned counsel that the substratum of the case has been shattered and even if the case against the petitioner is proceeded with no purpose will be served. 9. In **Moosa v. Sub Inspector of Police (2006 (1) KLT 552)** a Full Bench of this Court had occasion to hold that though the judgment rendered in the case of a co-accused and the reasoning of the judgment contained therein or appreciation of the evidence therein are not matters to be taken into account for the purpose of granting any relief to quash the proceedings and thus bar the trial itself, a case where the very substratum of the case is lost may be an exception to this rule. - 10.I am of the firm view that no purpose is going to be served by directing the petitioner to face the trial at this stage . It can only be a futile exercise and the only **Crl.M.C.No.3510/2016** **-6-** purpose that will be served is to gnaw into precious time during which more productive work can be done by the court below. The prospects of conviction is extremely remote owing to the acquittal of the co accused. - 11.In the result, this petition will stand allowed. All further proceedings against petitioner in L.P.No.18 of 2013 on the files of the Chief Judicial Magistrate Court, Manjeri, shall stand quashed. Sd/- **RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/27/6/16