C.P.Ashraf v. State of Kerala and The Station House Officer, Areacode Police Station, Malappuram District

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIKA, 1944 ``` ``` CRL.MC NO. 5441 OF 2021 ``` ``` [AGAINST THE PROCEEDINGS IN C.C.NO.289/2021 IN C.C.NO.948/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, MANJERI ARISING OUT OF CRIME NO.404/2009 OF THE AREACODE POLICE STATION, ``` ## `MALAPPURAM DISTRICT]` ## `PETITIONER/ACCUSED (ORIGINAL ACCUSED NO.1):` ``` C.P.ASHRAF AGED 42 YEARS S/O.ABDUL MAJEED, CHIRAYIMMAL HOUSE, KIZHUPARAMBU AMSOM, OTHUPALLIPURAYIL, MALAPPURAM DISTRICT. ``` ``` BY ADV K.RAKESH ``` ## `RESPONDENTS/STATE AND COMPLAINANT:` ``` 1THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682 031. 2THE STATION HOUSE OFFICER AREACODE POLICE STATION, MALAPPURAM DISTRICT, PIN - 673 639. ``` ## `OTHER PRESENT:` ``` BY ADV C.S.HRITHWIK- SR.PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC No.5441/2021 2 ## `O R D E R` ``` The Petitioner is the 1[st] accused in Crime ``` ``` No.404/2009 of Areacode Police Station, which was registered for the offences punishable under Sections 143,147,353 r/w. Section 149 of the Indian Penal Code (IPC). ``` ``` 2.The prosecution case is that on ``` ``` 11.12.2008 at about 1.35 p.m., the petitioner, along with eight others, formed themselves into ``` ``` an unlawful assembly, deterred the defacto ``` ``` complainant and others, who were police officers,and obstructed them from arresting a person who was a participant in riot. Annexure-A ``` ``` is the final report submitted by the Police. ``` ``` 3.Earlier, cognizance was taken by the ``` ``` Judicial First Class Magistrate Court-1, Manjeri ``` ``` as C.C.No.588/2010 and in the trial followed, accused Nos.2 to 8 participated. Annexure-B is the judgment passed by the learned Magistrate by ``` CRL.MC No.5441/2021 3 ``` which all the accused persons who faced the trial were found not guilty, and accordingly, they were acquitted. The 9[th] accused faced the trial in C.C.No.200/2013, which culminated in Annexure-C judgment. As per the said judgment, the said accused was also acquitted. The case against the petitioner was split up and is refiled as C.C.No.289/2021, which is pending before the Judicial First Class Magistrate Court-I, Manjeri. This Crl.M.C. is filed by the petitioner to quash all further proceedings pursuanttoAnnexure-A,includingthe proceedings in the said Calendar Case. ``` ``` 4.Heard Sri.Rakesh K., the learned counsel for the petitioner, Sri. Hrithwik, the learned Public Prosecutor for the 1[st] and 2[nd] respondents. ``` ``` 5.The contention put forward by the ``` ``` learned counsel for the petitioner is that, consequent to the order of acquittal passed by the learned Magistrate as per Annexure-B and ``` CRL.MC No.5441/2021 4 ``` Annexure-C judgments, the substratum of the ``` ``` prosecution case is lost, and hence no purpose would be served if the prosecution is allowed to continue as against the petitioner. Reliance was also placed on the principles laid down by this Court inMoosa v. Sub Inspector of Police ``` ``` [2006(1)KLT 552]. ``` ``` 6.On the other hand, the learned Public Prosecutor would oppose the aforesaid contention ``` ``` by highlighting that merely because of the reason that the other accused were acquitted after a full-fledged trial, the petitioner ``` ``` cannot seek an order to quash the proceedings. It is pointed out that the role of the ``` ``` petitioner can be ascertained only based on the evidence to be adduced during the course of ``` ``` trial. Therefore, the learned Public Prosecutor ``` ``` seeks for dismissal of the Crl.M.C. ``` ``` 7.I have gone through the records and ``` ``` considered the arguments raised from either side. ``` CRL.MC No.5441/2021 5 ``` 8.Annexure-B is the judgment by which ``` ``` accused Nos. 2 to 8 were acquitted. It is seen that the crucial witnesses for the prosecution were PWs.1 and 2 who were Sub Inspector of Police and Assistant Sub Inspector of Police, respectively, of Areacode Police. Both of them were eyewitnesses. PW1 stated that on 11.12.2008 at about 1 a.m., they got an information to the effect that one person was detained by the local people at Othupallypurayi and hence the police party came to the said place and found that one Sadanandan was kept under detention by the local people. The police party learned that he was detained on the allegation that he committed housebreaking with the intention to commit theft. He was lawfully arrested, and while he was being taken to the jeep, about 100 persons ``` ``` obstructed the police, alleging that the police would release the said person. PW1 stated that he could identify the persons who committed the ``` CRL.MC No.5441/2021 6 ``` offence, and accordingly, he identified those in ``` ``` the court as those who committed the offences. ``` ``` 9.PW2, the Assistant Sub Inspector of Police, Areacode Police Station, also deposed the incident, almost in tune with the deposition ``` ``` of PW1. However, after appreciating all the material aspects, the learned Magistrate did not rely upon their evidence to conclude that the accused who faced the trial were guilty of the ``` ``` offences. It was observed by the learned Magistrate that, as per the prosecution case, about 100 persons gathered and even according to ``` ``` the prosecution, PWs.1 and 2 were not having any prior acquaintance with them. Moreover, it was observed that the occurrence witnesses were unable to give any evidence with respect to the specific overt acts committed by each accused ``` ``` person. The identifying features of the persons ``` ``` who allegedly committed the crime were also not reported to the police during the course of the ``` CRL.MC No.5441/2021 7 ``` investigation. Therefore, it was found by the ``` ``` learned Magistrate that the identification of the accused by the witnesses from the dock ``` ``` cannot be relied on to hold the accused persons guilty. Apart from the evidence of the said witnesses, there were no other witnesses to ``` ``` substantiate the prosecution case. ``` ``` 10.In Annexure-C judgment, which is passed in ``` ``` the trial of the 9[th] accused also, PWs.1 and 2, who were the Sub Inspector of Police and ``` ``` Assistant Sub Inspector of Police concerned, ``` ``` have deposed in tune with the prosecution case. In that case also, the discrepancies, as ``` ``` mentioned in Ext.P1, were found by the learned ``` ``` Magistrate. It was also found that none of the accused persons were arrested from the spot, and ``` ``` there was no proper identification of the ``` ``` accused persons. Therefore, in this judgment ``` ``` also, the learned Magistrate arrived at the ``` ``` finding that the identification of the accused ``` CRL.MC No.5441/2021 8 ``` from the dock was improper, and the same cannot be relied upon for the purpose of arriving at a conclusion of the guilt of the accused. Thus, the result in both the above judgments is to the effect that the prosecution miserably failed to establish the guilt of any of the accused. After a careful scrutiny of the observations and findings made by the trial court in both the ``` ``` said judgments, it can be safely concluded that even though the order of acquittal was passed in respect of accused Nos.2 to 9, the impact of the said findings is that, the substratum of the prosecution case is destroyed by the courts below.Therefore, thecontinuationof prosecution against the petitioner would be futile. In such circumstances, I am of the view that this is a fit case in which the principles laid down inMoosa’s case (supra) can be applied. ``` CRL.MC No.5441/2021 9 ``` In the result, this Crl.M.C. is allowed, Annexure A final report in Crime No.404/2009 of ``` ``` Areacode Police Station, and all further ``` ``` proceedings pursuant thereto, including the ``` ``` proceedings in C.C.No.289/2021 on the file of ``` ``` the Judicial First Class Magistrate Court-1, Manjeri as against the petitioner herein are hereby quashed. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ``` CRL.MC No.5441/2021 10 ## `APPENDIX OF CRL.MC 5441/2021` |`PETITIONER’S`|`ANNEXURES:`| |---|---| |`ANNEXURE A`|`CERTIFIED COPY OF THE FINAL REPORT IN CRIME`| ||`NO.404/2009 OF THE AREACODE POLICE STATION.`| |`ANNEXURE B`|`CERTIFIED COPY OF THE JUDGMENT DATED`| ||`23/3/2013 IN C.C.NO.588/10 OF JFCM-I,`| ||`MANJERI.`| |`ANNEXURE C`|`CERTIFIED COPY OF THE JUDGMENT IN`| ||`C.C.NO.200/2013 OF JFCM-I, MANJERI DATED`| ||`27/7/2015.`|