Criminal Miscellaneous Case No. 1827 of 2019

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 ``` ``` CRL.MC NO. 1827 OF 2019 ``` ``` AGAINST THE ORDER/JUDGMENT CC 1366/2016 OF JUDICIAL MAGISTRATE OF ``` ## **`FIRST CLASS ,CHANGANACHERRY`** ## **`PETITIONER/ACCUSED NO.3:`** ``` BAIJU VARGHESE, AGED 39 YEARS S/O VARGHESE, CHIRAYIL VEEDU, KIZHAKKUM BHAGAM KARA, ETTUMANOOR VILLAGE. ``` ``` BY ADV M.GEORGE THOMAS ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. ``` ## **`OTHER PRESENT:`** ``` SREEJA. V PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 1827 OF 2019 ``` ``` 2 ``` ## **P.V.KUNHIKRISHNAN, J.** ## **-------------------------------Crl.M.C. No.1827 of 2019** **----------------------------------------------** Dated this the 16[th] day of October, 2023 ## **O R D E R** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioner is the 3[rd] accused in CC No.1366/2016 on the file of the Judicial First Class Magistrate Court-I, Changanasserry. 3. The above case was originally registered as CC No.310/2008 and since the petitioner was not able to appear, his case was splited and the case against other accused continued. They were acquitted as per Annexure D judgment. It is submitted that in the light of Annexure D, no purpose will be served in continuing the case against the petitioner. 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the co-accused were already acquitted by the trial court and the continuation of the trial ``` CRL.MC NO. 1827 OF 2019 ``` ``` 3 ``` 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 beneficial to extract the relevant portion of the judgment by which ``` CRL.MC NO. 1827 OF 2019 ``` ``` 4 ``` ## the co-accused is acquitted: “10. So on a consideration of the entire evidence on record there is no clinching evidence to connect the guilt of the accused with the offences alleged against them. The material contradictions in the evidence of PW6 before the court, differs from his Ext P1 statement, which in-turn deviates from the prosecution case has cut the very root of the prosecution case PW3, the only occurrence witness who supported the prosecution has deposed an entirely different version regarding the incident and the overt act of the accused and the injury sustained by PW6. The defence contended that it was Accused No.1 as the Managing Director of the Wisor Castle Hotel at that time hold the license to run the hotel under the Prevention of Food Adulteration Act. Though the prosecution case is that the accused violating the order of the Supreme Court assaulted PW6, PW6 raised no such case during his evidence before the court. The prosecution has also failed to produce any such order of the Honble Supreme Court. PW7 the investigating officer deposed that no such order was produced before him. Further as far as an offence under Sec ,188 of IPC is concerned, under Sec.195 of Cr PC there is absolute bar even to take cognizance of the offence except upon the complaint in writing of the public officer or any officer subordinate to the public authority whose order is violated. In the instant case, there is no ``` CRL.MC NO. 1827 OF 2019 ``` ``` 5 ``` such complaint is seen preferred. Though PW3 and PW6 alleged that the other two partners who are the brothers of PW6 also got assaulted in the incident, they were not even cited as witnesses. Why such gross negligence, prosecution has no explanation to offer. Admittedly regarding the ownership of the business firm, PW6 and accused were in logger heads with each other. It has also come out in evidence that A1 was attacked by PW6 and his hench men earlier in point of time which was brought out through Ext D1, the FIR of Crime No.463/07 of Chingavanam Police Station. The defence version that in fact the accused were brutally attacked by PW6 and his goons and to escape from the crime registered against him, foisted a false case implicating the accused, appears to be a more probable and plausible one especially on considering the contradictory evidence of PW3 and PW6. The evidence of PW3 and PW6 does not appear to be a one flowing from the mouth of trustworthy and truthful persons. Their evidence regarding the alleged incident doesn't seem to be a reliable one, as such the same did not inspire confidence in the mind of this court to accept the same as a true one so as to warrant a conviction for the accused. In Umakanth & another v State of Chattisgarh, 2014 KHC 440, it was held by our Honourable Apex Court that The prosecution has to prove the guilt of the accused beyond reasonable doubt and it is also the ``` CRL.MC NO. 1827 OF 2019 ``` ``` 6 ``` rule of natural justice in the criminal law. If two views are possible on the evidence adduced in this case, one pointing to the guilt of the accused and the other towards innocence the view in favour of the accusation is to be accepted In Mani @ Chakrapani and another v State of Kerala 2015 KHC 7015 our Honourable High court has held that When there are two versions one with the commission of the crime and another which is supporting the defence, the accused undoubtedly entitled to get the benefit In the instant case, the prosecution has failed to prove its case beyond reasonable doubt. It follows that the accused are not guilty. There is no room for making a different opinion in this regard. Points are found 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. Hence this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner in CC No.1366/2016 on the file of ``` CRL.MC NO. 1827 OF 20197 ``` the Judicial First Class Magistrate Court-I, Changanasserry are quashed. Sd/- **P.V.KUNHIKRISHNAN** **JUDGE** ska ``` CRL.MC NO. 1827 OF 2019 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 1827/2019`** |`PETITIONER ANNEXURES`|| |---|---| |`ANNEXURE A`|`CERTIFIED COPY OF THE FIRST INFORMATION`| ||`STATEMENT DATED 20.11.2007 BEFORE THE`| ||`CHINGAVANAM POLICE STATION IN CC.310/2008 OF`| ||`THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I,`| ||`CHANGANASSERRY`| |`ANNEXURE B`|`CERTIFIED COPY OF THE FIRST INFORMATION`| ||`REPORT DATED 20.11.2007 IN CC.310/2008 OF THE`| ||`JUDICIAL FIRST CLASS MAGISTRATE COURT-I,`| ||`CHANGANASSERRY`| |`ANNEXURE C`|`CERTIFIED COPY OF THE FINAL REPORT IN`| ||`CC.310/2008 OF THE JUDICIAL FIRST CLASS`| ||`MAGISTRATE COURT-I, CHANGANASSERRY`| |`ANNEXURE D`|`CERTIFIED COPY OF THE JUDGMENT DATED`| ||`31.8.2016 IN CC.310/2008 OF THE JUDICIAL`| ||`FIRST CLASS MAGISTRATE COURT-I,`| ||`CHANGANASSERRY`|