Mary Anto v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 10TH DAY OF APRIL 2013/20TH CHAITHRA 1935 Crl.MC.No. 651 of 2013 () -------------------------CC. 110/2011 of J.M.F.C.-III, NEYYATTINKARA PETITIONER(S):ACCUSED NO.1 --------------------------------- MARY ANTO, AGED 54 YEARS S/O.GEORGE SAIMON, MARY SADHANAM, RC STREET PALLICHAL DESOM, PALLICHAL VILLAGE. BY ADVS.SRI.R.T.PRADEEP SRI.P.BIJIMON RESPONDENT: ---------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C.651/2013 ## APPENDIX PETITIONER'S EXHIBITS: ANNEXURE I:THE TRUE COPY OF THE FINAL REPORT DATED 4.9.2005 IN CRIME NO.667/2005. ANNEXURE II:THE TRUE COPY OF THE JUDGMENT DATED 21.3.2011 IN CC.NO.249/2006. RESPONDENT'S EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== CRL.M.C. No.651 OF 2013 ==========================** Dated this the 10[th] day of April, 2013 ## **ORDER** Petitioner is the first accused in C.C.No.110 of 2011 on the files of the Court of Judicial First Class Magistrate-III, Neyyattinkara which is a split up case arising from crime No.667 of 2005 of Balaramapuram Police Station. The delation against the petitioner and his co-accused is one of commission of offences under sections 324 and 323 read with section 34 of the Indian Penal Code. Annexure-I is the final report laid in the aforesaid crime. The second accused stood the trial in C.C.No.249 of 2006. Annexure-II is the judgment of acquittal of the second accused. Since the petitioner was absconding, the case against him was split up and re-filed as C.C.No.110 of 2011. This petition has been filed in the said circumstances with the prayer to quash Annexure-I final report laid in crime No.667 of 2005 of Balaramapuram Police Station and all **Crl.M.C.651/13** 2 further proceedings pursuant thereto against the petitioner in C.C.No.110 of 2011 on the files of the Court of Judicial First Class Magistrate-III, Neyyattinkara. 2. I have heard the learned counsel for the petitioner and learned Public Prosecutor. The contention of the petitioner is that the case of the petitioner squarely falls under the exception carved out in paragraph 50 of the Full Bench decision of this Court in **Moosa v. Sub Inspector of Police (2006 (1) KLT 552)** . True that in the said decision, the Full Bench settled the general law that the judgment of acquittal of a co-accused in a particular case would not act as a bar for the subsequent trial of the absconding accused in that case. The only exception carved out in paragraph 50 is with respect to a case where with the pronouncement of judgment of acquittal in respect of the coaccused, the very substratum of the prosecution case is lost. The contention of the learned counsel for the petitioner is that in this case, with the pronouncement of Annexure-II judgment, the very substratum of the prosecution case is lost and therefore, continuance **Crl.M.C.651/13** 3 of the criminal proceedings against the petitioner would result in abuse of process of court besides wasting of the invaluable time of the Court. 3. A perusal of Annexure-II judgment would reveal that the presence of the defacto complainant could not be procured by the prosecution despite coercive steps taken for that purpose. Going by the prosecution case, the incident occurred on 29.8.2005 at 8 a.m. Omana, who is the occurrence witness examined as PW2 deposed to the effect that the incident involved in this case occurred in 2006 at about 10 a.m. in the morning. Virtually, the investigation officer did not completely support the prosecution case as he deposed to the effect that the incident occurred on 4.9.2005. It was after considering the oral testimonies of the prosecution witnesses that the trial court found that though the prosecution case is that the entire incident occurred on 29.8.2005 at 8 a.m in the courtyard of the house where the accused were then residing what was brought out in evidence by the prosecution would reveal that the incident occurred somewhere in **Crl.M.C.651/13** 4 2006 at about 10 a.m. It is thus obvious that after scanning the entire evidence both oral and documentary, the trial court as per AnnexureII judgment arrived at the finding that the prosecution had miserably failed to establish that the alleged incident occured on 29.8.2005 at 8 a.m. Even the evidence would show that the incident had occurred somewhere in 2006. It is taking into account all those aspects and also the fact that the defacto complainant’s presence could not be procured despite coercive steps taken in that regard that the second accused who stood the trial was acquitted as per Annexure-II judgment. In normal circumstances, a judgment of acquittal of a coaccused would not stand as a bar for the subsequent trial of the absconding accused. However, in this case, a scanning of Annexure-II judgment would reveal that no fruitful purpose could be served by allowing continuance of the criminal proceedings against the petitioner. I am of the view that in the said circumstances, the learned counsel is justified in contending that the very substratum of the prosecution case is lost with the pronouncement of Annexure-II judgment and therefore, the case of the petitioner falls within the **Crl.M.C.651/13** 5 exception carved out by the Full Bench in **Moosa’s** case (supra). 4. Having heard the rival submissions and perusing Annexure-II judgment, I have no hesitation to hold that continuation of criminal proceedings against the petitioner would result only in sheer wasting of the invaluable time of the Court and the chance for a successful prosecution against the petitioner is very bleak. In the said circumstances, compelling continuance of criminal proceedings against the petitioner would not be in the interest of justice. In the result, this is a fit case for invocation of the inherent jurisdiction under section 482 Cr.P.C. to prevent continuation of criminal proceedings against the petitioner. Resultantly, this petition is allowed. AnnexureI final report laid in crime No. No.667 of 2005 of Balaramapuram Police Station and all further proceedings pursuant thereto against the petitioner in C.C.No.110 of 2011 on the files of the Court of Judicial First Class Magistrate-III, Neyyattinkara are hereby quashed. **Sd/C.T. RAVIKUMAR (JUDGE)** **Crl.M.C.651/13** 6 ## **spc/** **C.T. RAVIKUMAR, J.** **Crl.M.C.651/13** 7 **JUDGMENT September, 2010**