## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIKA, 1944 CRL.MC NO. 5407 OF 2019 AGAINST THE ORDER/JUDGMENTLP 14/2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOZHIKODE / III ADDITIONAL MACT, KOZHIKODE**
**PETITIONER/S:**
**ANSAR AGED 33 YEARS S/O. AMMAD, MEETHALE ADAYAKKAD HOUSE, KADAMERY P.O., AAYANCHERRY VILLAGE, KOZHIKODE DISTRCIT. BY ADVS. T.G.RAJENDRAN T.R.TARIN**
## **RESPONDENT/S:**
- **1 JAYESH KUMAR S/O. KUNHIKANNAN, VAZHAYIL HOUSE, VATAYAM AMSOM DESOM, VATAYAM P.O., VADAKARA TALUK, KOZHIKODE - 673 103.**
- **2 SUDHEESH AGED 45 YEARS S/O. VASU, VATTAKKANDI HOUSE, KAVILUMPRA AMSOM DESOM CHATHAMKOTTU NADA P.O., VATAKARA TALUK, KOZHIKODE - 673 103.**
- **3 THE SUB INSPECTOR OF POLICE NADAPURAM POLICE STATION, KOZHIKODE DISTRICT - 673 504.**
- **4 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. BY ADV CIBI THOMAS ADV M P PRASHANTH- PP**
**THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **ORDER**
## **Dated this the 25[th] day of October, 2022**
The petitioner is the 3[rd] accused in crime No.715/2010 of Nadapuram Police Station, which is now pending as S.C. No.352/2021 before the Additional Sessions Court-III, Kozhikode. The offences alleged against the petitioner and other accused are under Sections 143, 147, 148, 341, 324, 427, 153A, 308, and 395 read with Section 149 of the Indian Penal Code.
2. The prosecution case is that on 17.12.2010 at 11.30 p.m., while CWs 1 and 2 were riding on a bike through Thanneer Panthal – Kuningadu road, after attending the Kallery temple festival, accused Nos.1 to 3 along with 12 unidentifiable persons formed into an unlawful assembly, in the prosecution of the common object of promoting communal acrimony between Muslims and Hindus, with the intention to commit culpable homicide of CWs1 and 2, assaulted them with dangerous weapons such as iron rod and reapers. It was further alleged that
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they shouted that Muslim brothers were attacked by Hindus nearby Kallery temple, and hence no Hindus would be spared. Annexure-I is the F.I.R. and Annexure-II is the final report submitted by the Police.
3. As per Annexure-II final report, three persons, including the petitioner were named. The trial of the said case was initially conducted before the III Additional Sessions Court, Kozhikode, as S.C. No.66/2015, in which the 2[nd] accused alone participated. Annexure-III is the judgment passed by the learned Sessions Judge in the said trial. As per the said judgment, the 2[nd] accused was found to be not guilty and accordingly, he was acquitted. The case against the petitioner was split up and the same was included as L.P. 14/2018 before the Additional Sessions Court-III, Kozhikode. Later, the petitioner surrendered before the learned Sessions Judge and accordingly, the case against the petitioner now stands refiled as SC No.352/2021. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure-II.
4. Heard Sri. T.G. Rajendran, the learned counsel appearing for the petitioner, Sri. M.P. Prasanth, the learned Senior Public Prosecutor for the State and Sri. Cibi Thomas, the learned
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## counsel appearing for respondents 1 and 2.
5. The prayer for quashing the proceedings is sought on the ground that the dispute between the parties has been settled, and respondents 1 and 2 do not have any subsisting grievance against the petitioner. Annexures-IV and V are the affidavits sworn by the said respondents. The learned counsel for the respondents 1 and 2 also confirms that they have no objection in quashing the proceedings against the petitioner. In addition to that, the learned Public Prosecutor verified the veracity of the aforesaid settlement through the Station House Officer concerned and after contacting the respondents 1 and 2, the same was found to be genuine.
6. Some of the offences alleged against the petitioner are indeed under Sections 153A, 308 and 395 of the Indian Penal Code. Since these are serious offences, the prosecution for the same cannot be quashed under normal circumstances on the basis of a settlement arrived between the parties. However, as rightly pointed out by the learned counsel for the petitioner, no sanction as contemplated under Section 196 of Cr.P.C. has been obtained for the purpose of proceedings against accused persons under Section 153A of the Indian Penal Code. Since obtaining
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sanction is a mandatory requirement for the prosecution under Section 153A, the lack of the same would vitiate the said proceedings. Therefore, I am of the view that the prosecution against the petitioner under Section 153A of the Indian Penal Code is not legally sustainable.
7. Regarding the other offences, the learned counsel for the petitioner relies explicitly on Annexure-III judgment in which the 2[nd] accused was found not guilty after a full-fledged trial. According to the learned counsel for the petitioner, the finding entered by the learned Sessions Judge in Annexure-III would destroy the substratum of the case and hence further prosecution of the petitioner is not warranted. He also relies on the principles laid down by this Court in **Moosa v. Sub Inspector of Police** [2006 (1) KLT 552].
8. I have gone through the materials placed on record and heard the contentions raised from either side. It is discernible from Annexure-III judgment that to substantiate the allegations, the prosecution mainly relies on the evidence of PWs 3 and 5, who are the victims of the incident. The witnesses above are respondents 1 and 2 in this case, and they have already submitted affidavits stating that they do not have any subsisting
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grievance against the petitioner. It is evident from Annexure-III judgment that respondents 1 and 2, while examined as PWs3 and 5, have supported the prosecution case. But yet, the learned Sessions Judge did not rely upon their evidence and acquitted the 2[nd] accused.
9. It is evident from the observations made in AnnexureIII judgment that the learned Sessions Judge found several contradictions and inconsistencies in the evidence of PWs3 and 5 and came to a definite conclusion that a conviction cannot be made based on their evidence. On going through the materials placed by the prosecution, it is evident that, apart from the evidence of PWs3 and 5, there were no other materials for the prosecution to rely on. In such circumstances, as the evidence of PWs 3 and 5 are the only materials placed on record, and since those witnesses have submitted affidavits stating that they do not have any grievance against the petitioner, no fruitful purpose would be served by continuing the prosecution.
10. Moreover, the observations made by the learned Sessions Judge in Annexure-III judgment have the impact of destroying the substratum of the prosecution case because of the
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reason that, the categorical finding entered by the learned Sessions Judge in the said judgment is to the effect that the prosecution failed to establish the prosecution case. A careful scrutiny of those observations would reveal that the impact of such observations is not confined to the guilt of the 2[nd] accused alone, but it affects the culpability alleged on all the accused. In such circumstances, taking note of the settlement between the parties and the impact of the observations made by the learned Sessions Judge in Annexure-III judgment, I deem it appropriate to invoke the jurisdiction of this Court under Section 482 Cr.P.C. to quash the proceedings.
In the result, this Crl.M.C. is allowed, and Annexure-II final report submitted in crime No.715/2010 of Nadapuram Police Station and all further proceedings against the petitioner pursuant to the same, including the proceedings in S.C. No.352/2021 on the file of the Additional Sessions Court-III, Kozhikode are hereby quashed.
**Sd/ZIYAD RAHMAN A.A. JUDGE**
ncd
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## **APPENDIX OF CRL.MC 5407/2019**
PETITIONER ANNEXURES
ANNEXURE I TRUE COPY OF THE FIRST INFORMATION REPORT IN CR NO.715/2010. ANNEXURE II TRUE COPY OF THE FINAL REPORT. ANNEXURE III TRUE COPY OF THE JUDGMENT IN S.C.NO.66/2015 DATED 2.5.2017 OF IIRD ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOZHIKODE. ANNEXURE IV TRUE COPY OF THE AFFIDAVIT SWORN IN BY THE IST RESPONDENT DATED 15.6.2019. ANNEXURE V TRUE COPY OF THE AFFIDAVIT SWORN IN BY THE 2ND RESPONDENT DATED 26.6.2019.
