Manikantan Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 9TH DAY OF JULY 2014/18TH ASHADHA, 1936** ## **Crl.MC.No. 3046 of 2014** **--------------------------CC NO. 661/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, ATTINGAL CRIME NO. 106/1994 OF ATTINGAL POLICE STATION , THIRUVANANTHAPURAM** **......** ## **PETITIONER/3RD ACCUSED:** **------------------------------------------** **MANIKANTAN NAIR,AGED 41 YEARS, S/O.PRABHAKARAN PILLAI, KUZHIVILAVEEDU, CHEMBOORU DESOM, MUDAKKAL VILLAGE, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.R.V.SREEJITH** ## **RESPONDENT/STATE:** **----------------------------------** ## **STATE OF KERALA, REPRSENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## ***ADDL.R2 IMPLEADED:** **R2. JYOTHI KUMAR, BLOCK NO.104, VENGODU HARIJAN COLONY, VENGODU, KEEZHTONNIYOOR, THIRUVANANTHAPURAM.** **(*ADDL.R2 IS IMPLEADED AS PER ORDER DATED 16/06/2014 IN CRL.M.A.NO.5583/2014)** **R1 BY ADV. PUBLIC PROSECUTOR SMT.S.HYMA R2 BY ADV. SRI.JELSON J.EDAMPADAM** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.MC.No. 3046 of 2014** **-----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **---------------------------------------------** **ANNEX A1 - CERTIFIED COPY OF THE FIR IN CRIME NO. 106/1994 OF ATTINGAL POLICE STATION.** **ANNEX A2 - CERTIFIED COPY OF THEFINAL REPORT.** **ANNEX A3 - TRUE COPY OF THE DEPOSITION OF PW1 IN C NO. 583/1996.** **ANNEX A4 - TRUE COPY OF THE DEPOSITION OF PW2 IN CC NO. 583/1996.** **ANNEX A5 - COPY OF THE JUDGMENT IN CC NO. 583/96 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -1, ATTINGAL DATED 23.12.1998.** **RESPONDENT(S)' ANNEXURES: ----------------------------------------------N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## K. RAMAKRISHNAN, J. -----------------------------------------------------------------Criminal M.C. No.3046 of 2014 --------------------------------------------------------------------Dated this the 9[th] day of July, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioner, who is the 3[rd] accused in C.C. No.661/1998 on the file of the Judicial First Class Magistrate Court-I, Attingal, to quash the proceedings, on the basis of the acquittal of co-accused after trial under Section 482 of the Code of Criminal Procedure (hereinafter called the ‘Code’). 2. It is alleged in the petition that, the petitioner has been arrayed as 3[rd] accused in Annexure-A1 first information report, namely Crime No.106/1994 of Attingal police station, which was registered on the basis of the statement given by the defacto-complainant, namely the additional 2[nd] respondent, alleging offences under Section 324, 326 and 341, read with Section 34 of the Indian Penal Code. After investigation, Annexure-A2 final report was filed and it was taken on file as C.C.583/96 before the CRMC.3046/ 2014 2 Judicial First Class Magistrate Court-I, Attingal. Except the petitioner others faced trial and they were acquitted as per Annexure-A5 judgment and the defacto-complainant was examined as PW2 and he had deposed that he has no grievance against all the accused. Further the case against the petitioner was split up and re-filed as C.C.661/1998. Now he came to understand that, there is warrant pending against him and in view of the fact that, other accused persons were acquitted, no purpose will be served by proceeding with the case as against the petitioner as well, as a substratum of the prosecution case has been shattered. So he has no other remedy, except to approach this court, seeking the following relief: “It is most humbly submitted that this Hon'ble court may be pleased to allow this Crl.M.C, quashing Annexures I and II and all proceedings in C.C.661/98 of the Judicial First Class Magistrate's Court, Attingal as against the petitioner.” 3. Originally the defacto-complainant was not impleaded. Subsequently, as directed by this court, the CRMC.3046/ 2014 3 defacto-complainant was impleaded as additional 2[nd] respondent as per order in Crl.M.A.5583/2014 and he entered appearance through counsel and submitted that, he has no grievance against the petitioner also, as he has settled the matter with all the accused persons and filed an affidavit to that effect before this court as well. 4. Further since, he was an absconding accused, this court expressed a view that, unless he surrenders and take bail, the question of quashing the proceedings will not be taken up, the accused surrendered before the court below. On his surrender, it was re-filed as C.C.No.1345/2014 and he was granted bail by the court below, which is evident from the report called from the lower court. 5. The learned Public Prosecutor filed a statement stating that offence under Section 326 of the Indian Penal Code is also added during the course of investigation and the present petitioner's were accused in CRMC.3046/ 2014 4 Crime No.229/2013 alleging offence under Section 143, 147, 148, 149, 323 and 324 of the Indian Penal Code of Attingal police Station and after investigation final report is filed and it is pending as C.C.1593/2013. So according to the leaned Public Prosecutor, it is not a matter to be quashed at this stage, invoking the power under Section 482 of the Code of Criminal Procedure. 6. Heard both sides. 7. It is an admitted fact that, the present petitioner was arrayed as 3[rd] accused in crime No.106/94 of Attingal police station, originally alleging offences under Section 341, 324, and Section 34 of the Indian Penal Code against the petitioner and three others and after investigation final report was field against 4 accused persons including the petitioner, after incorporating Section 326 of the Indian Penal Code as well. Originally, the case was taken on file as C.C. 583/96 on the file of Judicial First Class Magistrate Court-I, Attingal. Except the petitioner, CRMC.3046/ 2014 5 other accused persons namely accused Nos.I, 2 and 4 appeared in that case and after trial they were acquitted by the court below evidenced by Annexure-A5 Judgment. It is seen from the judgment that, the injured PW2 the defactocomplainant had deposed before the court that, he had no grievance against the accused persons and the matter has been settled and it was on that basis that the case was ended in acquittal as against other accused persons. 8. The 2[nd] respondent appeared through counsel before this court and filed an affidavit stating that, he has no grievance against the present petitioner as well. 9. In the decision reported in **2006 (1) KLT 552 (FB) Moosa v. Sub Inspector of Police** , the Full Bench of this court held that: “Normally acquittal of an accused is not a ground for acquitting the accused who did not face trial, invoking the power under Section 482 of the Code of Criminal Procedure. But in the same decision, it has been held that, if the CRMC.3046/ 2014 6 substratum of the prosecution case has been shattered and there is no evidence to prove the prosecution case and it was on that basis the coaccused were acquitted, then that can be taken as a ground for quashing the proceedings as against other accused, who did not face trial as no purpose will be served by allowing the case to proceed with”. 10. In this case also, the other accused persons were acquitted on the ground that, the matter has been settled and the witnesses did not support the case of the prosecution. The 2[nd] respondent/defacto-complainant also filed an affidavit before this court stating that, he has no grievance against the petitioner as well. So under the circumstances, even if the case is allowed to proceed with, the defacto-complainant is not going to support the case of the prosecution and since other accused persons were also acquitted, on the basis of no evidence available to found them guilty, this court feels that, allowing the case to proceed will only amount wastage of judicial time and this CRMC.3046/ 2014 7 can be taken as a ground for quashing the proceedings as against the petitioner also, invoking the power under Section 482 of the Code of Criminal Procedure. So the application is allowed and further proceedings in C.C. 1345/2014 (old C.C.661/1998 in Crime No.106/94 of Attingal police station) pending before the Judicial First Class Magistrate Court-I, Attingal, as against the petitioner is quashed. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy// P.A. to Judge ss