Criminal Miscellaneous Cases Nos. 8417/2022 and 8702/2022: Muhammed Althaf U.A. v. State of Kerala; T.M. Sameer et al. v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 9[TH] DAY OF OCTOBER 2023 / 17TH ASWINA, 1945 CRL.MC NO. 8702 OF 2022 ``` ``` AGAINST THE ORDER IN SC 570/2022 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, KASARAGOD / III ADDITIONAL ``` ## **`MACT, KASARAGODE`** ## **`PETITIONER/ACCUSED NO.33:`** ``` MUHAMMED ALTHAF U.A AGED 31 YEARS, S/O.ABDUL KHADER U.M, RESIDING AT THOOKAMPETTY HOUSE, CHERUR, CHENGALA VILLAGE KASARAGOD DISTRICT, PIN 671541 ``` ``` BY ADVS. T.MADHU C.R.SARADAMANI SHAHID AZEEZ RENJISH S. MENON SINORAJ D.K. ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` - `2 THE DEPUTY SUPERINTENDENT OF POLICE CBCID-OCW-IV, SUB UNIT, KASARAGOD, KASARAGOD P.O., KASARAGOD DISTRICT., PIN - 671123` - `3 THE STATION HOUSE OFFICER KASARAGOD POLICE STATION, KASARAGOD DISTRICT, PIN – 671123` ``` BY ADV ``` ``` SRI.M.P PRASANTH - PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.10.2023, ALONG WITH Crl.MC.8417/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. Nos.8417 and 8702 of 2022 ..2.. ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 9[TH] DAY OF OCTOBER 2023 / 17TH ASWINA, 1945 CRL.MC NO. 8417 OF 2022 ``` ``` AGAINST THE ORDER IN SC 570/2022 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, KASARAGOD / III ADDITIONAL MACT, KASARAGODE ``` ## **`PETITIONERS/ACCUSED NOS.1, 8, 13 AND 14:`** - `1 T.M.SAMEER AGED 38 YEARS, S/O.KUNHAMMED, RESIDING AT T.M.HOUSE, THEKKEPURAM, APGP 12/368, AJANOOR KADAPPURAM, AJANOOR P.O., KASARAGOD DISTRICT., PIN - 671531` - `2 MUHAMMED RASHID AGED 39 YEARS, S/O.ABDUL RAHIMAN, RESIDING AT AL SAFA QUARTERS, AP-12/1021, THEKKEPURAM, KANHANGAD, KANHANGAD P.O., KASARAGOD DISTRICT, PIN - 671315` - `3 K.THAHA ALIAS THAVU AGED 33 YEARS, S/O.KUNHABDULLA, RESIDING AT AGP-5/521, ATHINJAL, AJANOOR VILLAGE, KASARAGOD DISTRICT, PIN - 671531` - `4 SHAMSUDHIN ALIAS SHARAFUDHEEN AGED 33 YEARS, S/O.ABOOBACKER, RESIDING AT AGP15/542, AJANOOR VILLAGE, AJANOOR P.O., KASARAGOD DISTRICT., PIN - 671531` ``` BY ADVS. T.MADHU C.R.SARADAMANI SHAHID AZEEZ RENJISH S. MENON ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN – 682031` Crl.M.C. Nos.8417 and 8702 of 2022 ..3.. - `2 THE DEPUTY SUPERINTENDENT OF POLICE CBCID-OCW-IV, SUB UNIT, KASARAGOD, KASARAGOD P.O., KASARAGOD DISTRICT, PIN - 671123` - `3 THE STATION HOUSE OFFICER KASARAGOD POLICE STATION, KASARAGOD DISTRICT, PIN – 671123` ``` BY ADV SMT.SREEJA.V - PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.10.2023, ALONG WITH Crl.MC.8702/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. Nos.8417 and 8702 of 2022 ..4.. **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C Nos.8417 & 8702 of 2022 ---------------------------------------------Dated this the 9[th] day of October, 2023** ## **O R D E R** These Criminal Miscellaneous Cases are filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. These two Criminal Miscellaneous Cases are filed by the accused in S.C. No.570/2022 on the file of the Additional District and Sessions’ Court-III, Kasaragod arises from Crime No.238/CR/KNR of 2009 of CBCID, Kasaragod, which was charge sheeted alleging commission of offences punishable under Sections 143, 147, 148, 353, 332, 333, 427, 307 r/w Section 149 of the Indian Penal Code and Section 3(1) of the Prevention of Damage to Public Properties Act, 1984. 3. The prosecution case is that on 15.11.2009, at about 18.00 pm, political party named Indian Union Muslim League convened a meeting near new Bus stand at Crl.M.C. Nos.8417 and 8702 of 2022 ..5.. Kasaragod. Out of the attendees of the meeting about 500 persons formed themselves into an unlawful assembly with a common object of committing act of rioting and committed act of rioting armed with deadly weapons such as stone pieces and wooden stick, pelted stones at shops and vehicle near to the bus stand and when police attempted to prevent them and disburse them, the members of Muslim League pelted stones at the police party and caused simple as well as grievous injuries to the members of the police party and the mob refused to disburse themselves even after using grenade by the police and consequently at about 18.30 hours police was forced to resort to firing and consequently one member of the assembly died. By the act of the accused persons, they have committed the offences punishable under sections mentioned above is the allegation. 4. It is submitted that the co-accused were already acquitted and hence, the continuation of the prosecution against the petitioners is an abuse of process of court. Crl.M.C. Nos.8417 and 8702 of 2022 ..6.. 5. 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 petitioners have to face trial before the lower court and this court may not invoke the powers under Section 482 of the Code. 6. 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 co-accused. 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 Crl.M.C. Nos.8417 and 8702 of 2022 ..7.. proceedings. After going through the judgment of the trial court, I am of the considered opinion that the continuation of the prosecution against the petitioners will be an abuse of process of court. It will be beneficial to extract the relevant portion of the judgment by which the co-accused is acquitted: “20. Now the question is whether the prosecution proved that the accused Nos.2, 3, 4, 5, 7, 11, 12, 13, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32 and 33 were the members of the unlawful assembly which committed the act of rioting by causing injuries to the police officers and caused damage to the public property. Admittedly no test identification parade was conducted by the investigating agency. It is admitted by all the witnesses who identified the accused that they have no previous acquaintance with the accused and it is also brought out that in their previous statements they failed to say that they identified the assailants. It is true, the settled legal position is that the evidence given by the witnesses in the box is the substantive piece of evidence and failure of the investigating agency to conduct the test identification parade by itself is not a reason to disbelieve the substantive piece of evidence unless the witnesses are other wise not Crl.M.C. Nos.8417 and 8702 of 2022 ..8.. trustworthy. The question to be considered is whether the witnesses are interested witnesses or not. It is also a settled position of law that the question whether the witnesses have sufficient opportunity and time to identify the assailants is a matter of consideration. In this regard the oral evidence of PW1, the superintendent of police is very relevant. He volunteered to say that the police party was not even able to reach near the unruly mob to conduct a lathi charge as the situation was so terrific and the police party resorted on throwing grenade and firing. None of the witnesses has deposed to that he was able to reach near the unruly mob. PW1 has fairly admitted that he was not able to identify the members of the unlawful assembly as he was not able to reach near them. If that be the case the members of the police party were standing at the considerable distance from the unruly mob and in such circumstances it is highly improbable that the injured witnesses identified the accused from a group of about 500 assailants especially when they have no previous acquaintance with them. It is important to note that none of the independent witnesses supported the prosecution case and all the witnesses identified accused are the members of the police party subordinate to PW1. In the case at hand it is important to note that PW1 had fired a gun shot at the mob and admittedly a murder case was registered against them. In Crl.M.C. Nos.8417 and 8702 of 2022 ..9.. such circumstances the case of defence that the subordinates officers of PW1 are interested to book the leaders of the IUML cannot be ruled out. In the peculiar circumstances of the case at hand I am of the opinion that failure to conduct a test identification parade is a reason to disbelieve the general identification of the accused by the witnesses. Moreover apart from saying that they have found in the mob no overt act against the accused Nos. 2, 3, 4, 5, 7, 11, 12, 13, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32 and 33 is alleged. It is true that becoming the members of the unlawful assembly will vicariously make him liable for the acts done by the other accused. But it is to be proved by the prosecution that the accused had joined the unlawful assembly willingly and continued its members. From the evidence available before me I am of the opinion that there is no evidence to prove that accused Nos. 2, 3, 4, 5, 7, 11, 12, 13, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32 and 33 have joined as members of unlawful assembly willingly. For the reasons stated above I am of the opinion that prosecution failed to prove that accused Nos. 2, 3, 4, 5, 7, 11, 12, 13, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32 and 33 were the members of the unlawful assembly which committed the act of rioting armed with deadly weapons. Points are answered against the prosecution.” Crl.M.C. Nos.8417 and 8702 of 2022 ..10.. 7. 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 coaccused. 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 these Criminal Miscellaneous Cases are allowed. All further proceedings against the petitioners in S.C. No.570/2022 on the file of the Additional District and Sessions’ Court-III, Kasaragod arising from Crime No.238/CR/KNR of 2009 of CBCID, Kasaragod are quashed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** ded Crl.M.C. Nos.8417 and 8702 of 2022 ..11.. ## **`APPENDIX OF CRL.MC 8417/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1THE CERTIFIED COPY OF THE FINAL REPORT DATED 25/9/2014 IN CRIME NO.238/CR/KNR/09 OF THE CBCID-OCWIV, SUB UNIT KASARAGOD. Annexure A2THE CERTIFIED COPY OF THE JUDGMENT DATED 30/9/2022 IN S.C.NO.607/2017 ON THE FILES OF THE LEARNED ADDITIONAL SESSION'S COURT-III, KASARAGOD. ``` Crl.M.C. Nos.8417 and 8702 of 2022 ..12.. ## **`APPENDIX OF CRL.MC 8702/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1THE TRUE COPY OF THE FINAL REPORT DATED 25/9/2014 IN CRIME NO.238/CR/KNR/09 OF THE CBCID-OCWIV, SUB UNIT KASARAGOD. Annexure A2THE TRUE COPY OF THE JUDGMENT DATED 30/9/2022 IN S.C.NO.607/2017 ON THE FILES OF THE LEARNED ADDITIONAL SESSION'S COURT-III, KASARAGOD. ``` ``` Annexure A3THE TRUE COPY OF THE INTERIM ORDER DATED 24/11/2022 IN CRL.M.C.NO.8417/2022 ON THE FILES OF THIS HONOURABLE COURT. ```