CRL.MC Nos.4769/2020 & 5715/2019: Sarfu @ Sharafudheen; Rahim Manikoth; Jaffir; P.B. Inthias; Thasreef v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.` ``` WEDNESDAY, THE 19[TH] DAY OF OCTOBER 2022 / 27TH ASWINA, 1944 ``` ## `CRL.MC NO. 4769 OF 2020` ``` [CRIME NO.898/2013 OF HOSDURG POLICE STATION, NOW PENDING AS C.C. NO.898/2018 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE -II, ``` ## `HOSDURG]` ## `PETITIONER/ACCUSED:` ``` SARFU @ SHARAFUDHEEN AGED 29 YEARS S/O.ABOOBACKER,R/AT MUNEESH QUARTERS, KOLAVAYAL,AJANUR VILLAGE,HOSDURG TALUK. ``` ``` BY ADV A.ARUNKUMAR ``` ## `RESPONDENTS/COMPLAINANT/STATE:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031. 2THE STATION HOUSE OFFICER, HOSDURG POLICE STATION(CRIME NO.898 OF 2013),HOSDURG TALUK-671315. ``` ## `OTHER PRESENT:` ``` FOR R1 AND R2 BY ADV. VIPIN NARAYAN-PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.10.2022, ALONG WITH Crl.MC.5715/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC Nos.4769/2020 & 5715/2019 2 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 19[TH] DAY OF OCTOBER 2022 / 27TH ASWINA, 1944 ``` ``` CRL.MC NO. 5715 OF 2019 ``` ``` [CRIME NO.898/2013 OF HOSDURG POLICE STATION, NOW PENDING AS C.C. NO.898/2018 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE - II, HOSDURG] ``` ## `PETITIONERS/ACCUSED:` ``` 1RAHIM MANIKOTH, AGED 25 YEARS S/O.ABOOBACKER, RAMSEENA MANZIL, MANIKOTH, AJANUR VILLAGE, HOSDURG TALUK. 2JAFFIR @ PARAKKATTU JAFFIR, AGED 31 YEARS S/O.KUNHAMMED, RAMSEENA MANZIL, ATHINHAL, AJANUR VILLAGE, HOSDURG TALUK. 3P.B.INTHIAS,AGED 29 YEARS S/O.ABDULLA, YASHIM MANZIL, MADIYAN, AJANUR VILLAGE, HOSDURG TALUK. 4THASREEF @ THASMEER,AGED 31 YEARS S/O.ABOOBACKER, IQUBAL JUNCTION, AJANUR VILLAGE, HOSDURG TALUK. BY ADV A.ARUNKUMAR ``` ## `RESPONDENTS / COMPLAINANT/STATE:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2THE STATION HOUSE OFFICER, HOSDURG POLICE STATION (CRIME NO.898 OF 2013), HOSDURG TALUK - 671 315. R1 & R2 BY VIPIN NARAYAN, P.P. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.10.2022, ALONG WITH Crl.MC.4769/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC Nos.4769/2020 & 5715/2019 3 ## `O R D E R` ## `[Crl.MC Nos.4769/2020 & 5715/2019]` …. ``` The petitioners in these Crl.M.Cs. are the ``` ``` accused in Crime No.898/2013 of Hosdurg Police Station. The petitioners in Crl.M.C No.5715/2019 are accused Nos.3,8,2 and 9 respectively, whereas ``` ``` the petitioner in Crl.M.C.No.4769 2020 is the ``` ``` accused No.11 in the said Crime. Proceedings ``` ``` against the said petitioners are now pending as ``` ``` C.C.No.898/2018 before the Judicial First Class ``` ``` Magistrate-II, Hosdurg. The offences alleged ``` ``` against the petitioners and the other accused are ``` ``` under Sections 143,145,147,148,283,353 r/w. Section 149 of the Indian Penal Code (IPC) and also under Section 3(1) of Prevention of Damage to Public Property Act, 1984 (PDPP Act). ``` ``` 2.The prosecution case is that on 21.7.2013 at 17.30 hours at Madiyan junction in Ajanur ``` ## CRL.MC Nos.4769/2020 & 5715/2019 4 ``` Village, the accused and 300 unidentified persons formed themselves into an unlawful assembly and conducted a procession through the said highway violating the prohibitory order of the District Collector under Section 144 of Cr.PC. When the defacto complainant and the other police officers tried to disperse them, they obstructed the official duty and also damaged a government vehicle causing a loss of Rs.9,000/-. Annexure-AI ``` ``` is the F.I.R registered and Annexure-AII is the final report wherein 12 accused persons, including ``` ``` the petitioners, were arrayed as accused persons. ``` ``` 3.The Judicial First Class Magistrate ``` ``` Court-II, Hosdurg, has taken cognizance of the said offences as C.C.No.1016/2015 and in the trial ``` ``` followed, accused Nos.1 and 10 have participated. Annexure-AIII is the judgment passed in the said trial, as per which both the accused persons who faced the trial were found not guilty and they ``` ## CRL.MC Nos.4769/2020 & 5715/2019 5 ``` were accordingly acquitted. The case against the petitioners was split up and it is now pending as C.C.No.898/2018 before the Judicial First Class Magistrate Court-II, Hosdurg. This Crl.M.C. is ``` ``` filed for quashing all further proceedings against the petitioners pursuant to Annexure-AII final report. ``` ``` 3.Heard Sri.Arunkumar A., the learned counsel for the petitioners in both these Crl.M.Cs. And Sri. Vipin Narayan, the learned Public Prosecutor for the State. ``` ``` 4.The specific contention put forward by the learned counsel for the petitioners is that consequent to the order of acquittal passed by the learned Magistrate as per Annexure-AIII judgment passed in respect of accused Nos.1 and 10, the substratum of the prosecution case is lost and hence the continuation of the prosecution against ``` CRL.MC Nos.4769/2020 & 5715/2019 6 ``` the petitioners herein is not at all warranted. Reliance was also placed on the principles laid down in Moosa v. Sub Inspector of Police [2006(1) KLT 552]. ``` ``` 5.On the other hand, the learned Public Prosecutor would seriously oppose the aforesaid contentions by highlighting that the respective role of the petitioners can be ascertained only during the course of trial and merely because of the reason that some of the accused persons were found to be not guilty, they cannot seek for an order to quash the proceedings against them. ``` ``` 6.I have gone through the records and heard the contentions raised from either side. The ``` ``` prosecution case is that more than 300 persons gathered there and committed the offences on the date of occurrence. From Annexure-AIII judgment passed by the learned Magistrate, it can be seen ``` ## CRL.MC Nos.4769/2020 & 5715/2019 7 ``` that to substantiate the prosecution allegations, they mainly rely upon the evidence of PWs.1 and 2. It is specifically found by the learned Magistrate that, even though it was contended that PWs.1 and 2 were on official duty at the relevant time, absolutely no documents were produced to substantiate the same. Apart from the above, even ``` ``` though the allegation was that the accused persons conducted a procession in violation of the ``` ``` prohibitory order issued by the District Collector under section 144 Cr.PC, no such prohibitory order was produced. Apart from the above, the learned Magistrate discarded the identification made by ``` ``` the aforesaid witnesses as to the accused who have faced the trial. It was observed that, even ``` ``` according to the prosecution, PWs.1 and 2 were not having any previous acquaintance with any of the accused persons. Neither in the F.I.R or in the F.I. statement, the defacto complainant has ``` ## CRL.MC Nos.4769/2020 & 5715/2019 8 ``` mentioned any identifying features of any of the accused. The prosecution also has no case that PW6, the Investigating Officer, showed the accused ``` ``` persons to PWs. 1 and 2 to enable them to identify ``` ``` any of them. On the above reasons, a categorical finding was entered by the learned Magistrate to the effect that, the identity of any of the ``` ``` accused persons was not proved by the prosecution in a satisfactory manner. ``` ``` 7.Another crucial aspect noticed by the ``` ``` learned Magistrate was that, even though the incident was alleged to have occurred in a public place at 5.30 p.m., which was admittedly a busy ``` ``` junction where there were hospitals and shops, no ``` ``` independent witnesses were cited by the ``` ``` prosecution to establish the offences. The only persons shown as witnesses are police officers. ``` ``` Considering the discrepancies mentioned above, it ``` ``` was found that the aforesaid aspect is also ``` CRL.MC Nos.4769/2020 & 5715/2019 9 ``` something which goes against the prosecution case. ``` ``` Thus, considering all the aspects mentioned above, the learned Magistrate found that the accused persons who faced the trial were not guilty of the offences and, accordingly, they were acquitted. When carefully scrutinizing the nature of the evidence that was let in by the prosecution and ``` ``` the appreciation thereof made by the learned Magistrate in respect of the same, it is evident ``` ``` that, even though the order of acquittal was confined to the accused Nos.1 and 10, the impact ``` ``` of the same is that, the prosecution case in its entirety was found to be not substantiated. Therefore, I am of the view that by virtue of the finding entered by the learned Magistrate, the ``` ``` substratum of the prosecution case is destroyed and hence this is a case in which principles laid down byMoosa’s case (supra) can be applied. Therefore, the only conclusion possible is that ``` CRL.MC Nos.4769/2020 & 5715/2019 10 ``` further prosecution against the petitioners herein would be a futile exercise and would result in unnecessary wastage of precious judicial time and energy. ``` ``` In such circumstances, this Crl.M.C. is ``` ``` allowed. Annexure-AII final report submitted in Crime No.898/2013 of Hosdurg Police Station and ``` ``` all further proceedings pursuant to the same as against the petitioners herein who are accused Nos.3,8,2 and 9 and 11 in the above Crime and the proceedings in C.C.No.898/2018 on the files of the Judicial First Class Magistrate Court-II, Hosdurg are hereby quashed. ``` **==> picture [40 x 13] intentionally omitted <==** ``` ZIYAD RAHMAN A.A. JUDGE ``` pkk CRL.MC Nos.4769/2020 & 5715/2019 11 ## `APPENDIX OF CRL.MC 4769/2020` ``` PETITIONER’ ANNEXURES: ``` ``` ANNEXURE AIA TRUE COPY OF THE F.I.R. IN CRIME NO.898 OF 2013 OF HOSDURG POLICE STATION,KASARAGOD ANNEXURE AIIA TRUE COPY OF THE FINAL REPORT IN CRIME NO.898 OF 2013 OF THE HOSDURG POLICE STATION,KASARAGOD ANNEXURE AIIIA TRUE COPY OF THE JUDGMENT DATED 02.11.2018 IN C.C.NO.1016 OF 2015 OF JUDICIAL FIRST CLASS MAGISTRATE -II,HOSDURG. ``` CRL.MC Nos.4769/2020 & 5715/2019 12 ## `APPENDIX OF CRL.MC 5715/2019` ``` PETITIONERS’ ANNEXURES: ANNEXURE AIA TRUE THE F.I.R. IN CRIME NO.898 OF 2013 OF HOSDURG POLICE STATION, KASARAGOD. ANNEXURE AIIA TRUE THE FINAL REPORT IN CRIME NO.898 OF 2013 OF HOSDURG POLICE STATION, KASARAGOD. ANNEXURE AIIIA TRUE COPY OF THE JUDGMENT DATED 02/11/2018 IN CC.NO.1016 OF 2015 OF JUDICIAL FIRST CLASS MAGISTRATE -II, HOSDURG. ```