CRL.MC No. 1165 of 2022, IN THE HIGH COURT OF KERALA AT ERNAKULAM

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 8[TH] DAY OF JULY 2022 / 17TH ASHADHA, 1944 CRL.MC NO. 1165 OF 2022 ``` ## **`IN L.P. NO.40/2016 IN S.C. 1456/2014 OF ADDITIONAL SESSIONS`** ``` COURT II, THIRUVANANTHAPURAM ``` ``` CRIME NO.138/2006 OF THAMPANOOR POLICE STATION, THIRUVANANTHAPURAM PETITIONER/2ND RESPONDENT: ``` ``` RAJASEKHARAN NAIR AGED 56 YEARS,S/O SUKUMARAN NAIR MINI NIVAS, TC 43/1012, NEAR VADUVOTHU TEMPLE, KAMALESWARAM WARD, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM DISTRICT ``` ``` BY ADV SERGI JOSEPH THOMAS ``` ## **`RESPONDENTS/STATE:`** ``` STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, THAMPANOOR POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` ADV. M. P. PRASHANT- SR PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 1165 OF 2022 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the 2[nd] accused in Crime No.138/2006 which is now pending as L.P. No.44/2016 before the Additional Sessions Court II, Thiruvananthapuram. Subsequent to the filing of this Crl.M.C., as directed by this Court the petitioner surrendered before the trial court and the case now stands re-filed as S.C. No.420/2022 before the Additional Sessions Court II, Thiruvananthapuram. The offences alleged against the accused persons are under Sections 379 of Indian Penal Code and also under Sections 135, 138 and 150 of Electricity Act . 2. The prosecution case is that, the accused Nos.1 and 2 with the intention to obtain unlawful gain committed theft of electricity by removing the installation of service wire to the electric meter of Consumer No.7929 in building bearing No.T.C. No.25/2295 in Thampanoor. The aforesaid connection was obtained in the building for the purpose of running a hotel by the 1[st] accused. The allegation against the petitioner is that, the aforesaid modification in the wiring was carried out by the petitioner herein. ``` CRL.MC NO. 1165 OF 2022 ``` ``` 3 ``` Initially, the Additional Sessions Court II, Thiruvananthapuram conducted the trial of the case as S.C. No.1456/2014 in which the 1[st] accused alone appeared and contested. The case against the petitioner was split up and later it was included in the Long Pending Register. 3. In the trial conducted, the prosecution failed to prove the offence against the 1[st] accused and hence it culminated in Annexure A11 judgment by which he was found not guilty of the offences and accordingly he was acquitted. This Crl.M.C. is filed by the petitioner in such circumstances by contending that on account of the findings entered by the learned Sessions Judge in Annexure A11 judgment, the substratum of the case is lost and hence further prosecution against the petitioner is unwarranted. Reliance was also placed on the principles laid down by the Full Bench of this Court in **Moosa v. Sub Inspector of Police** [2006(1) KLT 552] 4. Heard Sri.Sergi Joseph Thomas, learned counsel appearing for the petitioner and Sri.M.P. Prashanth, learned Public ``` CRL.MC NO. 1165 OF 2022 ``` ``` 4 ``` Prosecutor appearing for the State. 5. I have gone through the records, including the contents of Annexure A1 Final Report and also Annexure A11 judgment passed by the learned Sessions Judge. The reasons for acquitting the 1[st] accused was specifically and in detail mentioned in paragraph 21 of the aforesaid judgment. The observations made by the learned Session Judge indicate that the prosecution failed to establish the allegation that the theft of electricity was committed in respect of electric meter supplied to the consumer No.7929 installed in the building bearing No.T.C. 25/2294 which allegedly was being used by the 1[st] accused. It is specifically observed that no documents to substantiate the aforesaid aspect were produced by the prosecution. Apart from the above, another crucial observation made by the learned Sessions Judge is that, the prosecution could not prove the allegation that the 1[st] accused was running the said hotel at the time of inspection. This aspect gains importance particularly because even as per the records, maintained by the K.S.E.B. the consumer was not the 1[st] accused. Thus, a categorical ``` CRL.MC NO. 1165 OF 2022 ``` ``` 5 ``` finding has been entered by the learned Sessions Judge to the effect that the prosecution failed to adduce any evidence showing culpability of the 1[st] accused. 6. The aforesaid observations go to the extent that the theft of energy in the premises as alleged by the prosecution itself was not proved. As far as the role of the petitioner is concerned, it is alleged that, it was the petitioner who carried out the wiring which enabled the 1[st] accused to commit theft of energy. On going through the contents of the Final Report it is discernible that, apart from the confession statement of the 1[st] accused there are no materials indicating the role of the petitioner. In such circumstances, when the 1[st] accused was found not guilty, the aforesaid finding would have ramification on the question of culpability of the petitioner / 2[nd] accused as well. Therefore, the order of acquittal passed in respect of the 1[st] accused has the impact of destroying the substratum of the case and hence further proceedings against the petitioner is an abuse of process of law. No fruitful purpose would be served by the by allowing continuation of ``` CRL.MC NO. 1165 OF 2022 ``` ``` 6 ``` prosecution against him. In such circumstances, I am of the view that, this is a fit case in which the principles laid down by this Court in **Moosa’s** case (supra) can be applied. In the result, this Crl.M.C. is allowed, Annexure A1 Final Report submitted in Crime No.138/2006 of Thampanoor Police Station and all further proceedings in S.C. No.420/2022 pending before the Additional Sessions Court II, Thiruvananthapuram as against the petitioner are hereby quashed. **Sd/-** ``` ZIYAD RAHMAN A.A. JUDGE ``` scs ``` CRL.MC NO. 1165 OF 2022 ``` ``` 7 ``` ## **`APPENDIX OF CRL.MC 1165/2022`** - `PETITIONER ANNEXURES Annexure1 THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 138/2006 OF THAMPANOOR POLICE STATION, THIRUVANANTHAPURAM NOW PENDING AS S.C NO. 1456/2014 ON THE FILES OF THE ADDITIONAL SESSIONS COURT- II, THIRUVANANTHAPURAM` - `Annexure2 THE TRUE COPY OF THE DEPOSITION OF PW1 IN S.C NO. 1456/2014 ON THE FILES OF THE ADDITIONAL SESSIONS COURT- II, THIRUVANANTHAPURAM` - `Annexure3 THE TRUE COPY OF THE DEPOSITION OF PW2 IN S.C NO. 1456/2014 ON THE FILES OF THE ADDITIONAL SESSIONS COURT- II, THIRUVANANTHAPURAM` - `Annexure4 THE TRUE COPY OF THE DEPOSITION OF PW3 IN S.C NO. 1456/2014 ON THE FILES OF THE ADDITIONAL SESSIONS COURT- II, THIRUVANANTHAPURAM` - `Annexure5 THE TRUE COPY OF THE DEPOSITION OF PW4 IN S.C NO. 1456/2014 ON THE FILES OF THE ADDITIONAL SESSIONS COURT- II, THIRUVANANTHAPURAM` - `Annexure6 THE TRUE COPY OF THE DEPOSITION OF PW5 IN S.C NO. 1456/2014 ON THE FILES OF THE ADDITIONAL SESSIONS COURT- II, THIRUVANANTHAPURAM` - `Annexure7 THE TRUE COPY OF THE DEPOSITION OF PW6 IN S.C NO. 1456/2014 ON THE FILES OF THE ADDITIONAL SESSIONS COURT- II, THIRUVANANTHAPURAM` - `Annexure8 THE TRUE COPY OF THE DEPOSITION OF PW7 IN S.C NO. 1456/2014 ON THE FILES OF THE ADDITIONAL SESSIONS COURT- II, THIRUVANANTHAPURAM` - `Annexure9 : THE TRUE COPY OF THE DEPOSITION OF PW8 IN S.C NO. 1456/2014 ON THE FILES OF THE ADDITIONAL SESSIONS COURT- II, THIRUVANANTHAPURAM` - `Annexure10 THE TRUE COPY OF THE DEPOSITION OF PW9` ``` CRL.MC NO. 1165 OF 2022 ``` ``` 8 ``` ``` IN S.C NO. 1456/2014 ON THE FILES OF THE ADDITIONAL SESSIONS COURT- II, THIRUVANANTHAPURAM ``` ``` Annexure11THE CERTIFIED COPY OF THE JUDGMENT DATED 16/12/02021 IN S.C NO. 1456/2014 ON THE FILES OF THE ADDITIONAL SESSIONS COURT- II, THIRUVANANTHAPURAM ```