Criminal Miscellaneous Cases Nos. 4515/2019 and 6436/2019 (Sajad & Ansar Ali; Mansoor Babu v. State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 18TH DAY OF SEPTEMBER 2019 / 27TH BHADRA, 1941** ## **Crl.MC.No.6436 OF 2019(D)** **AGAINST THE JUDGMENT IN CC 674/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NILAMBUR CRIME NO.15/2014 OF Pothukallu Police Station , Malappuram** ## **PETITIONER/ACCUSED 2 AND 4:** **1 SAJAD, AGED 31 YEARS S/O. UMMAR, KURIKKAL HOUSE, POTHUKALLU AMSOM, POTTI, NILAMBUR TALUK, MALAPPURAM DISTRICT. 2 ANSAR ALI AGED 34 YEARS S/O. UNNIMOYIN, VADAKKEPURAM HOUSE, BOODANAM, POTHUKALLU AMSOM, POTTI, NILAMBUR TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.P.SAMSUDIN SRI.M.ANUROOP** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **(IN CRIME NO.15/2014 OF POTHUKALLU POLICE STATION)** **2 ASMABI AGED 49 YEARS, W/O. ALI, CHERIPARAMBIL HOUSE, UPPADA P.O - 679 334, EDAKKARA AMSOM, NILAMBUR TALUK, MALAPPURAM DISTRICT.** ## **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.09.2019, ALONG WITH Crl.MC.4515/2019(D), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos.4515 & 6436 OF 2019** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 18TH DAY OF SEPTEMBER 2019 / 27TH BHADRA, 1941** **Crl.MC.No.4515 OF 2019(D)** **AGAINST THE JUDGMENT IN CC 674/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NILAMBUR** **CRIME NO.15/2014 OF Pothukallu Police Station , Malappuram** ## **PETITIONER/7TH ACCUSED:** **MANSOOR BABU AGED 37 YEARS S/O. KUNJI MUHAMMAD, CHIRAKKAL HOUSE, POTHUKALLU AMSOM, DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.SAMSUDIN** ## **RESPONDENTS/STAE AND DEFACTO COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM -682 031** **(IN CRIME NO. 15/2014 OF POTHUKALLU POLICE STATION)** **2 ASMABI, AGED 49 YEARS W/O. ALI, CHERIPARAMBIL HOUSE, UPPADA P.O-679 334, EDAKKARA AMSOM, NILAMBUR TALUK, MALAPPURAM DISTRICT.** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.09.2019, ALONG WITH Crl.MC.6436/2019(D), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos.4515 & 6436 OF 2019** **3** ## **ALEXANDER THOMAS, J.** ## **= = = = = = = = = = = = = = = = = Crl.M.C. Nos.4515 & 6436 of 2019** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 18[th] day of September, 2019 ## **O R D E R** The petitioners herein are original accused Nos.2, 4 and 7 in Crime No.15/2014 of Pothukallu Police Station, for offences registered under Secs.143, 147, 148, 447, 294(b), 506(i) r/w 149 IPC. It appears that original accused Nos.1, 3, 5 and 6 have already faced trial, which has entered up in their acquittal as per Anx.A3 judgment dated 21.12.2018 rendered by Judicial First Class Magistrate Court, Nilambur in C.C.No.674 of 2014. It will be pertinent to refer to paragraphs 5 to 7 of the said Anx.A3 judgment of acquittal which reads as follows: 5. Points that arise for determination are- 1. Whether the accused herein, in prosecution of their common object to commit an offence, themselves formed an unlawful assembly and thereby committed offence u/s.143 of IPC, as alleged by the prosecution? 2. Whether the accused herein, in prosecution of their common object to commit an offence, committed rioting, in order to attract Section 147 r/w 149 IPC, as alleged by the prosecution? 3. Whether the accused herein, in prosecution of their common object to commit an offence, committed rioting armed with deadly weapons, in **Crl.MC.Nos.4515 & 6436 OF 2019** **4** order to attract Section 148 r/w 149 IPC, as alleged by the prosecution? 4. Whether the accused herein, in prosecution of their common object to commit an offence, trespassed into the courtyard of the house of Pw1, in order to attract section 447 r/w 149 IPC as alleged by the prosecution. 5. Whether the accused herein, in prosecution of their common object to commit an offence, uttered obscene words at PW1, in order to attract section 294(b), r/w 149 IPC as alleged by the prosecution? 6. Whether the accused herein, in prosecution of their common object to commit an offence intimidated PW1 with any injury to her person, in order to attract section 506(i) r/w 149 IPC as alleged by the prosecution? 7. Sentence or order ? 6. **Point No.1 to 6:-** For the sake of convenience, these points are considered together. PW1, the defacto complainant deposed that on 08.01.2014, a group of persons trespassed into the courtyard of her house and threatened her with death. Thereafter, she lodged Ext.P1 complaint with Pothukallu police about the incident. She further deposed that she does not know the persons who had trespassed into the courtyard of her house and threatened her with death. According to her, there matter between herself and the accused has been settled and she has no further grievance against the accused herein. Hence PW1 turned hostile to the **Crl.MC.Nos.4515 & 6436 OF 2019** **5** prosecution. Even though the permission was granted for learned APP to put questions to PW1, which might be put in cross examination, nothing material is brought out so as to convict the accused herein. Since PW1 turned hostile to the prosecution, the remaining witnesses were given up by learned APP. On going through the available evidence, I am of the opinion that the prosecution has miserably failed to prove the offences alleged against A1,3,5 and 6 beyond all reasonable doubt. Hence these points are found against the prosecution. 7. **Point No.7:-** In view of my finding on point No.1 to 6, A1, 3, 5 and 6 are found not guilty of the offences alleged against them. Hence this point is also answered against the prosecution. 2. A perusal of the said judgment would make it clear that PW1 has turned hostile to the prosecution and even though permission was granted to the learned Prosecutor to put questions to Pw1, which may become cross examination, no material has been brought out so as to commit the said offences by the accused persons and remaining witnesses are given up by the prosecution. A reading of the said Anx.A3 judgment would make it clear that substractum of the prosecution case has been shattered by the acquittal of the co-accused persons. The case against the petitioners herein have subsequently been re-numbered as **Crl.MC.Nos.4515 & 6436 OF 2019** **6** C.C.No.865/2018 on the file of the Judicial First Class Magistrate's Court, Nilambur. 3. Heard Sri.P.Samsudin, learned counsel for the petitioners, and the learned Public Prosecutor appearing for the 1[st] respondent-State of Kerala. In the nature of the orders that is proposed to be passed in this petition, notice to 2[nd] respondent will stand dispensed with. 4. On a perusal of Anx. A3 judgment it can be seen that the trial court has conclusively held that there is no evidence to connect the said co-accused persons with the impugned charges and acquitted the said coaccused persons. From a mere reading of Anx. A3 judgment it is crystal clear that the substratum of the prosecution has been shattered by the acquittal of the said co-accused persons. No meaningful purpose will be subserved by prolonging the agony of the impugned criminal proceedings now pending against the petitioners. Any further continuance of the impugned criminal proceedings would amount to mere wastage of precious resources of the State including that of the judiciary. This Court in the cases as in _**Moosa v. Sub Inspector of Police**_ reported in 2006 (1) KLT 552, _**Ashraf Kancheriyil v. State of Kerala**_ reported in 2011(2) KHC 8123, and _**Abbas v. State of Kerala** 2013_ (2) KLT 976, has held that if the substratum of the prosecution is demolished by the acquittal of the co-accused, this Court could exercise the powers under **Crl.MC.Nos.4515 & 6436 OF 2019** **7** Sec.482 of the Cr.P.C. to consider the prayer of quashment of the impugned criminal proceedings against the other accused. 5. In this view of the matter, it is ordered in the interest of justice that the impugned Anx.A2 final report filed in the impugned Anx.A1 Crime No. 15/2014 of Pothukallu Police Station, which has led to the pendency of C.C.No.865/2018 on the file of the Judicial First Class Magistrate court, Nilambur and all further proceedings arising therefrom pending against the petitioners herein stand quashed. 6. The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions, the Criminal Miscellaneous Cases stands finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS** ## **JUDGE** mpm **Crl.MC.Nos.4515 & 6436 OF 2019** **8** ## **APPENDIX OF Crl.MC 6436/2019** **PETITIONERS' EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO.15/2014 OF POTHUKALLU POLICE STATION. ANNEXURE A2 TRUE COPY OF THE FINAL REPORT IN CRIME NO.15/2014 OF POTHUKALLU POLICE STATION. ANNEXURE A3 TRUE COPY OF JUDGMENT DATED 21.12.2018 IN CC NO.674/2014 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NILAMBUR** **Crl.MC.Nos.4515 & 6436 OF 2019** **9** ## **APPENDIX OF Crl.MC 4515/2019** **PETITIONER'S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME NO. 15/2014 OF POTHUKALLU POLICE STATION.** **ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 15/2014 OF POTHUKALLU POLICE STATION.** **ANNEXURE A3 TRUE COPY OF JUDGMENT DATED 21-12-2018 IN CC NO. 674/2014 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NILAMBUR** // TRUE COPY // P.A. TO JUDGE