CRL.MC Nos. 7468 & 7482 of 2023

CRL.MC Nos. 7468 & 7482 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945** **CRL.MC NO. 7482 OF 2023** **AGAINST THE ORDER/JUDGMENT SC 67/2020 OF SPECIAL COURT-TRIAL OF OFFENCE UNDER SC/ST(POA)ACT1989, MANNARKKAD PETITIONER/S:** MUHAMMED ASHFAQ AGED 38 YEARS S/O CHAKKINGAL MOHAMMED SALEEM, CHAKKINGAL HOUSE, KUNDHIPUZHA, MANNARKKAD POST, PALAKKAD, PIN - 678582 BY ADVS. THAREEQ ANVER K. K.SALMA JENNATH ARUN CHAND RASSAL JANARDHANAN A. ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 MUHAMMED AFSAL K. AGED 43 YEARS S/O SAYID MUHAMMED, KULAKKADAN HOUSE, KUNTHIPUZHA, MES COLLEGE POST, MANNARKKAD - I, PALAKKAD, PIN - 678582 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.10.2023, ALONG WITH Crl.MC.7468/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC Nos. 7468 & 7482 OF 2023 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 CRL.MC NO. 7468 OF 2023** **AGAINST THE ORDER/JUDGMENT SC 372/2023 OF SPECIAL COURT-TRIAL OF OFFENCE UNDER SC/ST(POA)ACT1989, MANNARKKAD** ## **PETITIONER/S:** SUNEER @ MUHAMMED SUNEER AGED 39 YEARS S/O MUHAMMEDALI, THOTTIKULAYAN HOUSE, MANNARKKAD POST, PALAKKAD, PIN - 678582 BY ADVS. THAREEQ ANVER K. K.SALMA JENNATH ARUN CHAND RASSAL JANARDHANAN A. ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 MUHAMMED AFSAL K. AGED 43 YEARS S/O SAYID MUHAMMED, KULAKKADAN HOUSE, KUNTHIPUZHA, MES COLLEGE POST, MANNARKKAD - I, PALAKKAD, PIN - 678582 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.10.2023, ALONG WITH Crl.MC.7482/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC Nos. 7468 & 7482 OF 2023 3 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------Crl.M.C. Nos. 7468 & 7482 of 2023 ------------------------------------------Dated this the 13[th] day of October, 2023** ## **O R D E R** These two Criminal Miscellaneous cases are connected and therefore, I am disposing of these two cases by a common order. 2. The petitioner in Crl.M.C. No. 7482/2023 is the 1[st] accused in Crime No. 129/2004 of Mannarkkad Police Station, which is now pending as SC No. 67/2020 of Special Court -Trial of SC/ST (POA) Act, Mannarkkad. The petitioner in Crl.M.C. No. 7468/2023 is the 2[nd] accused in the same crime number and his case is now pending as SC No. 372/2023 before the same court. According to the petitioners, SC No. 372/2023 is chargesheeted for the offences punishable under Secs. 324, 307 r/w Sec.34 IPC. It is submitted that the 3[rd] accused is already acquitted as evident by Annexure-4 in CRL.MC Nos. 7468 & 7482 OF 2023 4 these cases. It is submitted that the prosecution against the petitioners is an abuse of process of court because the coaccused is acquitted and the matter is also settled. 4. 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. 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 co-accused. The dictum laid down by this court in the above judgment is that, if substratum of CRL.MC Nos. 7468 & 7482 OF 2023 5 prosecution case is shattered by the judgement 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 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: 8. “The points: The case of the prosecution is that the accused persons along with Muhammed Ashfaq, the accused in the split case, in furtherance of their common intention due to some previous animosity, attacked PWs1 and 2 with dangerous weapons such as knife and sword with intention to cause murder of them and in the process caused hurt. The case of the defence is that of total denial. 9. According to the defence, the accused have not committed any offences as alleged. To prove the occurrence, on the side of the prosecution, PWs1 to 9 have been examined. PWs1 and 2 are the injured. Both the witnesses would say that one day while they were sitting near the firm viz, Kerala Enterprises at Andippadam near Nellippuzha, two persons came from behind and attacked them with sword and knife. In the process, they sustained hurt. When specific question was put to them, they would say that they could not identify the CRL.MC Nos. 7468 & 7482 OF 2023 6 assailants except the absconding accused Muhammed Ashfaq and Suncer. Though the witnesses were treated hostile and were examined by the learned Public Prosecutor, nothing material could be brought out so as to show that they have deposed falsehood before the court to help the accused. The definite evidence of PWs1 and 2 before the court that they have no acquaintance with the accused. PWs3 to 7 are the eye witnesses. They have also not supported the prosecution case. The evidence of PWs3 to 7 is that they have not seen the Occurrence. 10. PW8 is the owner of a furniture shop from where PW1 had purchased furniture worth Rs.3,000/-. The case of the prosecution is that the dispute between the accused and PWI was regarding the payment of the price of furniture purchased by Al from the shop of this witness. The witness only would say that PWI had purchased furniture worth Rs.3,000/- from him and he has no knowledge about the dispute between the accused and PW1. So, there is nothing in the evidence of PW8 also to connect the accused with the crime. 11. PW9 is a witness to the scene mahazar. His evidence is only of formal in nature. As already stated above, the other witnesses cited by the prosecution are only official and formal witnesses. So, it can be found that there is absolutely no evidence before the court to establish the guilt against the accused. So, the accused is entitled to get an acquittal. In the result, the accused is acquitted under Section 232 of the Cr.PC of the offences under Section 324 and 307 r/w 34 of the IPC. The case against Al Suneer @Muhammed Suneer is split and refiled. Address the Sessions Court to assign a new number to the split case. The properties and the records shall CRL.MC Nos. 7468 & 7482 OF 2023 7 be preserved for the purpose of the split case. The bail bond executed by the accused is cancelled and he is set at liberty.” 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, these Crl.M.Cs can be allowed. Therefore, these Crl.M.C. are allowed. 1) Crl.M.C. No.7468/2023 is allowed quashing all further proceedings against the petitioner in SC No.372/2023 pending before the Special Court-Trial of offence under SC/ST (POA) Act 1989, Mannarkkad arising from Crime No. 129/2004 are quashed. - 2) Crl.M.C. No. 7482/2023 is allowed quashing all further proceedings against the petitioner in SC No. 67/2020 pending before the Special Court-Trial of offence under SC/ST (POA) Act 1989, Mannarkkad arising from Crime CRL.MC Nos. 7468 & 7482 OF 2023 8 ## No. 129/2004 are quashed. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS CRL.MC Nos. 7468 & 7482 OF 2023 9 ## **APPENDIX OF CRL.MC 7468/2023** PETITIONER ANNEXURES Annexure 1 THE TRUE COPY OF FINAL REPORT NO.337/2005 DATED 24/05/2005 OF MANNARKKAD POLICE STATION IN S.C. 372/2023 BEFORE HON'BLE SPECIAL COURT FOR SC/ST POA ACT CASES, MANNARKKAD Annexure 1A THE TRUE COPY OF MEMORANDUM OF EVIDENCE SUBMITTED ALONG WITH FINAL REPORT NO.337/2005 DATED 24/05/2005 OF MANNARKKAD POLICE STATION IN S.C. 372/2023 BEFORE HON'BLE SPECIAL COURT FOR SC/ST POA ACT CASES, MANNARKKAD Annexure 2 THE AFFIDAVIT DATED 05/09/2023 SWORN BY THE 2ND RESPONDENT Annexure 3 THE TRUE COPY OF THE DEATH CERTIFICATE DATED 11/09/2023 ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS, KAMARAMPATHUR GRAMA PANCHAYAT REGISTERING THE DEATH OF THE COMPLAINANT Annexure 4 TRUE COPY OF JUDGMENT DATED 31/10/2011 IN S.C. 61/2007 BEFORE THE COURT OF SESSION, PALAKKAD CRL.MC Nos. 7468 & 7482 OF 2023 10 ## **APPENDIX OF CRL.MC 7482/2023** PETITIONER ANNEXURES Annexure 1 THE TRUE COPY OF FINAL REPORT NO.337/2005 DATED 24/05/2005 OF MANNARKKAD POLICE STATION IN S.C. 67/2020 BEFORE HON'BLE SPECIAL COURT FOR SC/ST POA ACT CASES, MANNARKKAD Annexure 1A THE TRUE COPY OF MEMORANDUM OF EVIDENCE SUBMITTED ALONG WITH FINAL REPORT NO.337/2005 DATED 24/05/2005 OF MANNARKKAD POLICE STATION IN S.C. 67/2020 BEFORE HON'BLE SPECIAL COURT FOR SC/ST POA ACT CASES, MANNARKKAD Annexure 2 THE AFFIDAVIT DATED 05/09/2023 SWORN BY THE 2ND RESPONDENT Annexure 3 THE TRUE COPY OF THE DEATH CERTIFICATE DATED 11/09/2023 ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS, KAMARAMPATHUR GRAMA PANCHAYAT Annexure 4 TRUE COPY OF JUDGMENT DATED 31/10/2011 IN S.C. 61/2007 BEFORE THE COURT OF SESSION, PALAKKAD