Criminal Misc. Case No. 7014 of 2023 (against SC 287/2023, Additional District Court, Tirur)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 10[TH] DAY OF OCTOBER 2023 / 18TH ASWINA, 1945** **CRL.MC NO. 7014 OF 2023 AGAINST THE ORDER/JUDGMENT SC 287/2023 OF ADDITIONAL DISTRICT COURT, TIRUR** ## **PETITIONERS/ACCUSED NO.1 AND 2:** 1 ANAS AGED 35 YEARS S/O SAIDALAVI, KAMBRATH HOUSE, PUTHIYAKADAPPURAM P.O, MALAPPURAM DT., PIN - 676307 2 SUHAIL AGED 26 YEARS S/O UMMAR KOYA, KAMBRATH HOUSE, PUTHIYAKADAPPURAM P.O, MALAPPURAM DT., PIN - 676307 BY ADVS. M.MUHAMMED SHAFI T.RASINI SWATHY A.P. ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV. SRI.RENJITH T.R., PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.7014 of 2023 2 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C.No.7014 of 2023 ---------------------------------------------Dated this the 10[th] day of October, 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. Petitioners are the accused in S.C.No.287/2023 on the file of the Additional Sessions Court, Tirur arising from Crime No.503/2016 of Tanur Police Station. The above case is charge-sheeted against the petitioners alleging offences punishable under Sections 143, 147, 148, 324, 326, 307 r/w 149 IPC. 3. The prosecution case is that the accused Crl.M.C.No.7014 of 2023 3 formed themselves into an unlawful assembly and assaulted the victim and thereby committed the above said offences. 4. Heard counsel for the petitioners and the Public Prosecutor. The counsel for the petitioners submitted that the co-accused were already acquitted by the trial court and the continuation of the trial against the petitioners 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** Crl.M.C.No.7014 of 2023 4 **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. After going through the judgment of the trial court, I am of the considered opinion that the continuation of the prosecution against the petitioner/s will be an abuse of process of court. It will be beneficial to extract the relevant portion of Annexure A2 judgment by which the co-accused is acquitted: “10. Point Nos.1 and 7:- For the sake of convenience these points can be considered together. As mentioned above on the side of the prosecution PW1 to PW4 were examined. PW1 Beerankoya is the first informant. He would depose Crl.M.C.No.7014 of 2023 5 before the Court that on 04-06-2016 at about 9.30 p.m., a group of persons assaulted him and CW2 and CW3. All of them sustained injuries and they were initially taken to Govt. Hospital, Tirur and then to Medical College Hospital, Kozhikode. Police came to hospital and recorded Ext.P1 first information statement. But he does not know the persons who assaulted him and other witnesses. Since he failed to identify the accused as his assailants, he was declared hostile to prosecution. He further denied having stated the names of the accused to the police as the assailants. 11. The other injured Mullakoya and Ali Asker were examined as PW2 and PW3. They also gave evidence in terms of the evidence given by PW1. According to them they could not identify the persons who attacked them. Since they failed to identify the accused as the assailants, they were also declared hostile to prosecution. PW1 to PW3 further stated that matter is now settled and they have no more complaint against the accused. 12. PW4 Anvar is an eye witness. But he denied having seen the incident directly. Hence he was also declared hostile to prosecution. As mentioned earlier the learned A.P.P has given up the examination of remaining witnesses. Crl.M.C.No.7014 of 2023 6 13. On a reading of the evidence stated above it can be seen that none of the witnesses identified the accused as the assailants of PW1 to PW3. As such there is no evidence to connect the accused with the offence alleged. Moreover the matter has been settled amicably between the parties. Anyway since there is no evidence to suggest that accused are the persons who committed the offence alleged in this case, there is no meaning in proceedings with the trial of the case further and the accused who faced trial deserve an acquittal u/s 232 of Cr.PC. Hence I find these points accordingly against the prosecution.” 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. Crl.M.C.No.7014 of 2023 7 Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioners in S.C.No.287/2023 on the file of the Additional Sessions Court, Tirur arising from Crime No.503/2016 of Tanur Police Station are quashed. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.7014 of 2023 8 ## **APPENDIX OF CRL.MC 7014/2023** PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE CHARGE ALONG WITH FIR IN CRIME NO. 503 OF 2016 OF TANUR POLICE STATION, MALAPPURAM ANNEXURE A2 TRUE COPY OF THE JUDGMENT DATED 12.12.2022 IN SC NO. 625/2017 ON THE FILE OF THE ADDITIONAL SESSIONS COURT, TIRUR ANNEXURE A3 TRUE COPY OF THE WEDDING INVITATION LETTER RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE