Crl.M.C.No.6205 of 2023 (Muhammed Sherif and Akbar v. State of Kerala and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 5[TH] DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945** **CRL.MC NO. 6205 OF 2023** **AGAINST THE ORDER/JUDGMENT CC 626/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PARAPPANANGADI** ## **PETITIONERS/ACCUSED:** 1 MUHAMMED SHERIF AGED 36 YEARS S/O. ABOOBACKER, KODINJIYATH HOUSE, KODINJI P.O., PANAKKATHAYAM, MALAPPURAM DISTRICT, PIN - 676309 2 AKBAR AGED 37 YEARS S/O. ABOOBACKER, KODINJIYATH HOUSE, KODINJI P.O., PANAKKATHAYAM, MALAPPURAM DISTRICT, PIN - 676309 BY ADV. K.P.SUDHEER ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 2 STATION HOUSE OFFICER TIRURANGADI POLICE STATION, TIRURANGADI, MALAPPURAM DISTRICT, PIN - 676306 3 MUHAMMED YOUSAF AGED 66 YEARS S/O. MOIDEENKUTTY, ILLATH HOUSE, NANNAMBRA, TIRURANGADI, MALAPPURAM DISTRICT, PIN - 676306 4 ABDUL AZEEZ AGED 57 YEARS S/O. MOIDEENKUTTY, ILLATH HOUSE, NANNAMBRA, TIRURANGADI, MALAPPURAM DISTRICT, PIN - 676306 BY ADV. SRI.RENJITH T.R., PP SRI.SHERRY M.V. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.6205 of 2023 2 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C.No.6205 of 2023** **---------------------------------------------Dated this the 05[th] day of September, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. Petitioners are accused Nos.1 and 2 in Crime No.5/2015 of Tirurangadi Police Station. The above case is registered against the petitioners and others alleging offences punishable under Sections 143, 147, 341, 323, 427, 294(b), 427, 506(i) r/w Section 149 of the IPC. 3. The said crime was registered based on the complaint given by the 3[rd] respondent. Annexure A1 Crl.M.C.No.6205 of 2023 3 is the First Information Report and Annexure A2 is the Final Report. The case was registered as C.C. No.225/2015 on the file of the Judicial First Class Magistrate's Court-I, Parappanangadi. During the pendency of the said case, the disputes were settled by the parties, is the submission. Based on the settlement, the learned Magistrate acquitted accused Nos. 3 to 5 as per Annexure A3 judgment. The case against the petitioners herein were split up and is now pending as C.C. No.626/2022. In view of the settlement and also in the light of the acquittal of the co-accused, this Crl.M.C. is filed. 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 Crl.M.C.No.6205 of 2023 4 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 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 Crl.M.C.No.6205 of 2023 5 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 Annexure A3 judgment by which the co-accused were acquitted: _“7]. Defacto complainant is examined as PW1. According to him on the alleged day a group of persons attacked him, PW2 and PW1 and they got injured. He gave first information statement to police in respect of the alleged incident. First information statement is marked as Ext.P1. In Court he denied the facts stated in the complaint and deposed that the assailants were not known to him. He further stated that matter settled out of Court. Thus PW1 turned hostile to prosecution case._ _8]. PW2 is the injured in this case. He deposed in tune with PW1. He further deposed that matter settled out of Court. Hence he turned hostile to prosecution case. PW3 is the occurrence witnesses. He also did not support the prosecution case. Hence he turned hostile to prosecution case._ Crl.M.C.No.6205 of 2023 6 _The learned Assistant Public Prosecutor was given ample opportunity to put questions that could be asked in cross-examination. But he could not bring anything to prove the incident. Therefore the prosecution failed to prove the case beyond reasonable doubt. Hence points No. 1 to 7 are answered against the prosecution._ ## _POINT No.8_ _In the light of discussion on points No.1 to 7, A3 to A5 found not guilty of alleged offences, hence point No. 11 found against prosecution._ _In the result, accused No. 3 to 5 are found not guilty of offences punishable u/s 143,147,341,323,294(b), 427, 506(i) r/w 149 IPC. A1 to A5 acquitted under section 255[1] CrPC. Their bail bonds stands cancelled and they are set at liberty. Case against A1 and A2 split up and refiled as CC 626/2022.”_ 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 Crl.M.C.No.6205 of 2023 7 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 this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioners in C.C.No.626 of 2022 on the file of the Judicial First Class Magistrate's Court-I, Parappanangadi arising from Crime No.5/2015 of Tirurangadi Police Station, Malappuram are quashed. DM Sd/- **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.6205 of 2023 8 ## **APPENDIX OF CRL.MC 6205/2023** ## PETITIONER ANNEXURES |ANNEXURE A|1|CERTIFIED<br>COPY<br>OF|FIRST| |---|---|---|---| |||INFORMATION<br>REPORT|DATED| |||02.01.2015 IN CRIME NO. 5/2015 OF|| |||TIRURANGADI POLICE STATION.|| |ANNEXURE A|2|CERTIFIED COPY OF FINAL|REPORT| |||DATED 18.1.2015 IN CRIME NO.|| |||5/2015 OF TIRURANGADI|POLICE| |||STATION.|| |ANNEXURE A|3|CERTIFIED COPY OF JUDGMENT|DATED| |||28.3.2022.<br>IN<br>THIS|REGARD| |||CERTIFIED COPY OF JUDGMENT|DATED| |||28.3.2022 IN C.C. NO. 225/2015|| |||PASSED BY JUDICIAL FIRST|CLASS| |||MAGISTRATE'S<br>COURT-I,|| |||PARAPPANANGADI|| |ANNEXURE A|4|AFFIDAVIT EXECUTED BY THE 3RD|| |||RESPONDENT DATED 27.07.2023|| |ANNEXURE A|5|AFFIDAVIT EXECUTED BY THE 4TH|| |||RESPONDENT DATED 27.7.2023|| RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE