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High Court of KeralaSingle JudgeQuashed

Moideen v. State of Kerala

Case / Petition Number:Crl.M.C. No. 2077 of 2016

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Raja Vijayaraghavan V
Judgment Date
2016-05-27
Court Decision / Holding
The petition is allowed. All further proceedings against the petitioner in LP No.14 of 1997 on the files of the Judicial Magistrate of First Class, Ponnani arising from Crime No.1/1997 of Changaramkulam Police Station are quashed.
Final Disposition
Quashed

Parties to the Case

Appellants / Petitioners

  • Moideen, S/O. Moidunni Moula vi, Thalappil House, Alamcode Amsaom, PantHAVOOR Desom, Malappuram District.

Respondents

  • The State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam, Kochi-682 031, for the Sub Inspector of Police, Changaramkulam Police Station, Malappuram District.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. Babu S. Nair
  • • Sri. R. Ranjith (Manjeri)

Counsels for Respondents

  • • Public Prosecutor Sri. Rajesh Vijayan

Case Synopsis & Summary

Moideen, the fifth accused in Crime No.1/1997 of Changaramkulam Police Station, approaches the Kerala High Court under Section 482 CrPC seeking quashal of proceedings in LP 14/1997 (Judicial Magistrate, Ponnani). The investigation led to a final report, cognizance in S.C.No.410/2001, and trial of several accused who were later acquitted: accused nos. 1, 6, 9, 10, 11 were discharged on 24.11.2003 (Annex B) for lack of cogent evidence; accused nos. 2 and 7 were committed to Sessions and acquitted on 29.01.2013 (Annex C) due to deficient evidence. The petitioner submits that the substratum of the case has been destroyed, making continued prosecution futile, especially since PW9 (the injured) turned hostile, with PW8’s wife and PW10/ PW11 also failing to support the prosecution. The State contends that the petitioner was an absconder but not a person of prior criminal antecedents, and argues there was no cogent evidence to connect all accused. Citing Moosa v. Sub Inspector of Police and Ashraf Kancheriyil v. State of Kerala, the court recognizes that though acquittals of co-accused do not automatically bar trial of others, destruction of substratum is an exceptional basis for quashing. The High Court finds substratum destroyed and, invoking its inherent power under Section 482 CrPC, allows the petition and quashes LP 14/1997 proceedings against the petitioner.

Provisions of Law Cited

Section 482 of the CrPCIPC Sections 143, 147, 148, 452, 324, 326, 307, 427 read with Section 149 of the IPCSection 235(1) of the CrPCSection 232 of the CrPC

Legal Doctrines & Maxims

  • substratum doctrine (destruction of substratum justifies quashing under CrPC 482)
  • Inherent powers of this Court under Section 482 CrPC
  • Acquittal of co-accused does not automatically bar trial of other accused (as held in Moosa v. Sub Inspector of Police)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submitted that the case has long pendency and the substratum of the case has been destroyed as evidenced by Annexures B and C judgments. The injured PW9 turned hostile and did not identify the assailants; PW8’s wife and PW10/11 also did not support the prosecution. Since the core basis of the case has collapsed, continued prosecution would be an abuse of process. Relying on Moosa and Ashraf Kancheriyil, the petitioner urged that inherent powers under Section 482 CrPC should be exercised to quash the proceedings.

Contentions of Respondents

The State contended that the petitioner was an absconder but not with prior criminal antecedents; there was no cogent evidence tying the petitioner to the crime. The counsel argued that the substratum principle applies only in exceptional circumstances and that acquittals of some co-accused do not automatically bar continued proceedings against others; nonetheless, the absence of reliable evidence should be considered but should not automatically necessitate quashing, and that the Court may consider the proportionality and efficiency of continuing a trial.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Moosa v. Sub Inspector of Police2006 (1) KLT 552PositiveCited to support the principle that acquittal of co-accused does not automatically bar the trial of others, reinforcing the substratum exception noted in the judgment.
Ashraf Kancheriyil v. State of Kerala2011 (2) KHC 812PositiveCited to support the doctrine that destruction of substratum justifies quashing and halts prosecution where the core facts/resource of the case have collapsed.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 27TH DAY OF MAY 2016/6TH JYAISHTA, 1938** ## **Crl.MC.No. 2077 of 2016 ()** **--------------------------L.P. NO.14/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PONNANI. CRIME NO. 1/1997 OF CHANGARAMKULAM POLICE STATION. ......** **PETITIONER/ACCUSED:** **----------------------------------** **MOIDEEN, S/O. MOIDUNNI MOULAVI, THALAPPIL HOUSE, ALAMCODE AMSOM, PANTHAVOOR DESOM, MALAPPURAM DISTRICT.** **BY ADVS.SRI.BABU S. NAIR, SRI.R.RANJITH (MANJERI).** **RESPONDENT/STATE:** **----------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031, FOR THE SUB INSPECTOR OF POLICE, CHANGARAMKULAM POLICE STATION, MALAPPURAM DISTRICT.** **BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **Crl.MC.No. 2077 of 2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEX. A TRUE COPY OF THE FINAL REPORT/CHARGE IN CRIME NO.1/1997 OF THE CHANGARAMKULAM POLICE STATION.** **ANNEX. B TRUE COPY OF THE JUDGMENT DATED 24.11.2003 OF THE SESSIONS COURT, MANJERI IN S.C.NO.410/2011. ANNEX. C TRUE COPY OF THE JUDGMENT DATED 29.01.2010 OF THE SESSIONS COURT, MANJERI IN SC NO.187/2010. ANNEX. D TRUE COPY OF THE AFFIDAVIT SWORN TO BY THE DEFACTO COMPLAINANT DATED 16.08.2014.** ## **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2077 of 2016 - - - - - - - - - - - - - - - - Dated 27[th] May, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** This petition is filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code' for short) seeking invocation of powers of this Court to quash the pending criminal proceedings. The petitioner herein is the 5[th] accused in crime No.1 of 1997 of the Changaramkulam Police Station. The aforesaid crime was registered at the instance of one Vasu for the offences punishable under Sections 143, 147, 148, 452, 324, 326, 307 and 427 read with Section 149 of the IPC. 2. After completion of investigation, final report was laid before the jurisdictional Magistrate. The case was taken cognizance as S.C.No.410 of 2001 for trial and disposal. Accused Nos.1, 6, 9, 10 and 11 appeared before court and faced trial. As per Annexure B judgment dated 24.11.2003 the learned Addl. Sessions Judge came to the conclusion that the case of the prosecution did not appear to be cogent Crl.M.C. No.2077 of 2016 -2- and convincing and therefore the benefit of doubt was extended to the accused persons. The accused were found not guilty and were acquitted under Section 235(1) of the Code. 3. Later, accused Nos. 2 and 7 in the original crime surrendered and they were committed to the Court of Sessions. The case against them were proceeded with by the Addl. Sessions Judge in S.C.No.187 of 2010 and as per judgment dated 29.1.2013 it was concluded that evidence was deficient to connect the accused with the crime and the accused were accquitted under Section 232 of the Code. 4. It is submitted that the case against the petitioners have been included in the list of long pending cases and the same is numbered as L.P. No. 14 of 1997 on the files of the Judicial magistrate of First Class, Ponnani. The petitioner has approached this Court by filing this petition raising the contention that the substratum of the case has been destroyed and that no purpose would be served in subjecting the petitioner to undergo the ordeal of a trial. Crl.M.C. No.2077 of 2016 -3- 4. Referring to Annexures B and C judgments, the learned counsel appearing for the petitioner submitted that there was no evidence whatsoever to connect the accused in the crime. It is also submitted by the learned counsel referring to paragraph No.10 of Annexure C that the main injured in the case has not supported the prosecution case and he had gone to the extent of stating that he could not identify the assailants. 5. The learned Public Prosecutor on instructions submits that the petitioner was an absconding accused. However, it is fairly submitted that he is not a person with criminal antecedents. ## 6. In **Moosa v. Sub Inspector of Police (2006 (1)** **KLT 552)** a Full Bench of this Court had occassion to hold in para 50 of the said Judgement in the following manner: “50 .................. _At the same time, the judgment rendered in the case of a coaccused and the reasoning of the judgment contained therein or appreciation of the evidence therein are not matters to be taken into account for the purpose of granting_ Crl.M.C. No.2077 of 2016 -4- _any relief to quash the proceedings and thus bar the trial itself. It may however, be a case where the very substratum of the case is lost which may be an exception to this rule. However, as held by the apex court it has to be held that even when a coaccused is acquitted in the very same trial, the other accused can be convicted if there are good reasons to do so. In other words, the acquittal of some of the accused by itself is not a reason to bar the trial in the case of the other accused.”_ ## 7. In **Ashraf Kancheriyil v. State of Kerala (2011** **(2) KHC 812)** it was held by this Court in the facts of that case that that when substratum of the case is destroyed, there is no point in pursuing with the prosecution as against the other accused. ## 8. In **Ashraf Kancheriyil v. State of Kerala (2011** **(2) KHC 812)** it was held by this Court in the facts of that case that that when substratum of the case is destroyed, there is no point in pursuing with the prosecution as against the other accused. Crl.M.C. No.2077 of 2016 -5- 9. I have gone through Annexures B and C judgments of the Additional Sessions Judge. In Annexure C judgment the learned Sessions Judge has taken specific note of the fact that PW9 Vasu, who is the injured, had turned adverse to the prosecution and he had gone to the extent of stating that he could not even identify his assailants. The wife and daughter of PW8, who was examined as PW10 and PW11 also did not support the prosecution case. Though the judgment rendered in the case of a coaccused and the reasoning of the judgment contained or appreciation of the evidence therein are not matters to be taken into account for the purpose of granting any relief to quash the proceedings and thus bar the trial itself, a case where the very substratum of the case is lost is an exception to the above rule. 10. I have no doubt in my mind that the substratum of the case has been destroyed and the continued prosecution of the petitioner will not serve any purpose. I am, therefore, of the view that the criminal proceedings pending Crl.M.C. No.2077 of 2016 -6- as against the petitioner can be quashed by invoking the inherent powers of this Court under Section 482 of the Code. In the result, this application is allowed. All further proceedings against petitioner herein in L.P.No.14 of 1997 on the files of the Judicial Magistrate of First Class, Ponnani which has arisen from Crime No. 1 of 1997 of Changaramkulam Police Station shall stand quashed. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/-28.5.16