Joshy George, Abdul Naseeb and Shanj v. State of Kerala and The Sub Inspector of Police, Katappana Police Station, Idukki

CRL.MC NO. 8668 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 CRL.MC NO. 8668 OF 2023** **CRIME NO.947/2012 OF Kattappana Police Station, Idukki AGAINST THE ORDER/JUDGMENT CC 1607/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS , KATTAPPANA** ## **PETITIONER/S:** 1 JOSHY GEORGE AGED 30 YEARS S/O GEORGE, PALAKKUDIYIL HOUSE, VENGANOORKADA BHAGAM, KANCHIYAR KARA, AYYAPPANCOIL , IDUKKI DST., PIN - 685511 2 ABDUL NASEEB AGED 33 YEARS S/O NASSER BLOCK NO. 393, THOOKUPALAM KARA, PARATHODU IDUKKI DST., PIN - 685552 3 SHANAJ AGED 33 YEARS S/O SAJI PUTHENPARAMBIL HOUSE, MUNDIYERUMA KARA, PAMPADUPARA. IDUKKI., PIN - 685552 BY ADVS. TOM E. JACOB REXY ELIZABETH THOMAS LIJI.J.VADAKEDOM ATHUL V. VADAKKEDOM ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2 THE SUB INSPECTOR OF POLICE, CRL.MC NO. 8668 OF 2023 2 KATTAPPANA POLICE STATION, IDUKKI, PIN - 685508 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 8668 OF 2023 3 **P.V.KUNHIKRISHNAN, J --------------------------------------Crl.M.C. No.8668 of 2023 -------------------------------------Dated this the 7[th] day of November, 2023** ## **O R D E R** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioners are some of the accused in Crime No. 947/2012 of Kattappana Police Station. The case was registered alleging offences punishable under Secs. 143, 147, 148, 332, 283 r/w Sec.149 of the IPC and Sec. 77 r/w 121 of Kerala Police Act. 3. The prosecution case is that the accused formed themselves into an unlawful assembly and conducted a march violating the order of the Hon'ble High Court and obstructed public traffic and thereby committed the abovesaid offences. 4. The petitioners were not able to appear before the CRL.MC NO. 8668 OF 2023 4 lower court and therefore, their case was split up and the case against the other accused were considered by the lower court and they were acquitted as per Annexure-3 judgment. It is submitted that in the light of Annexure-3 judgment, the continuation of the prosecution against the petitioners is an abuse of process of court. 5. Heard counsel for the petitioners and the Public Prosecutor. 6. 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** CRL.MC NO. 8668 OF 2023 5 **(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 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: “10. On evaluating the prosecution evidence it can be discern that there is no proper identification of the accused persons by the prosecution witness PW1 to PW3 failed to identify the accused persons in court. Though PW1 and PW2 stated the name of Al and to A3 as leaders of the march they admitted in their evidence that they are having only hearsay knowledge about the same. The accused persons were not arrested from the place of occurrence. No material was produced before the court to shows that PW1 to PW3 were deputed for the law and order duty on 25/05/2012 as part of the DYSP office march conducted by the SFI workers. There CRL.MC NO. 8668 OF 2023 6 is no recovery of the weapons. 12. The prosecution failed to cogent evidence to connect the A1 to A3, A6 to A8, A12 to A19 and A21 with this crime. Prosecution failed to prove the identity of the author of the crime. The prosecution evidence is grossly lacking to find that the accused no. A1 to A3, A6 to A8, A12 to A19, and A21 are the persons who obstructed the official duty of PW1 and PW2. Consider the fact and circumstance of this case the investigation conducted by PW6 who is the informant himself has caused prejudice to the accused. 13. The evidence and materials brought on record, as discussed here-in-above, speak loud and clear that prosecution evidence is grossly inadequate to bring home the charges against the accused. Considering the substratum of the prosecution case the prosecution failed to bring out any cogent evidence to prove the guilt of the accused beyond reasonable doubt. In the light of the above discussion prosecution failed to prove the offences alleged against the accused. Hence point nos.1 to 6 are found against the prosecution.” 6. 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, this Crl.M.C can be CRL.MC NO. 8668 OF 2023 7 allowed. Hence this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioners in Crime No. 947/2012 of Kattappana Police Station are quashed. **sd/P.V.KUNHIKRISHNAN JUDGE** SKS CRL.MC NO. 8668 OF 2023 8 ## **APPENDIX OF CRL.MC 8668/2023** PETITIONER ANNEXURES Annexure 1 CERTIFIED COPY OF THE FIR IN CRIME NO. 947/2012 OF KATTAPPANA POLICE STATION Annexure 2 CERTIFIED COPY OF THE FINAL REPORT IN CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.947/2012 OF KATTAPPANA POLICE STATION Annexure 3 CERTIFIED COPY OF THE JUDGMENT DATED 3011-2021 IN C.C.NO.36/2013 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I, KATTAPPANA