Muhammed Anvar @ Bavicha v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940** ## **Crl.MC.No. 1062 of 2014** **AGAINST THE ORDER IN LPC 222/2007 IN C.C.NO.710/2006 of CHIEF JUDICIAL MAGISTRATE ,KASARAGOD** **CRIME NO. 564/2005 OF Kasaragod Police Station, Kasargod** ## **PETITIONER/ 12TH ACCUSED :** **MUHAMMED ANVAR @ BAVICHA, AGED 30 YEARS, S/O.AZEEZ, CHERANGAI KADAPPURAM, KASARAGOD** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENT/ COMPLAINANT/ STATE :** - **1 SUB INSPECTOR OF POLICE, KASARAGOD POLICE STATION - 673 121** - **2 STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **3 K.PRASAD NAIK, AGED 38 YEARS, S/O.SHANKARA NAIK, KORUVAYAL HOUSE, AERIYAL, KUDLU VILLAGE, KASARAGOD - 671 124** **BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN SMT.K.K.SHEEBA SRI.SWAMIDAS.K.N.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **Crl.MC.No. 1062 of 2014** 2 ## **ORDER** The petitioner was originally the 12[th] accused charge sheeted by the 1[st] respondent in CC.No.600/2005 on the file of the Chief Judicial Magistrate, Kasaragod, for offences punishable under Section 143, 147, 148, 341, 324, 153(A) r/w.149 of the Indian Penal Code. 2. The prosecution case is that on 22.01.2004, at about 9.15 p.m., 36 accused persons including the petitioner formed themselves into an unlawful assembly and in furtherance of their common object committed rioting by carrying deadly weapons and attacked PWs 1 to 9 at a place by name on account of communal enemity. During the course of attack they wrongfully restrained PWs 1 to 9 and pelted soda bottles and stones over PWs 1 to 9 and they sustained injuries on their bodies. **Crl.MC.No. 1062 of 2014** 3 3. The case against the accused persons 1 to 9, 11, 14 to 17, 24 to 27, 30, 31, 33, 34 and 36 were proceeded with by the learned Magistrate. After conducting an elaborate trial, all of them were acquitted. The case against the petitioner and others were split up and re-filed as CC.No.710/2006. Now it is included in the Long Pending Register as LPC.No.222/2007. 4. The learned Magistrate in the trial found that all eye witnesses and injured were turned hostile to the prosecution and there were no sufficient materials to connect them with the crime. None of them were named in the First Information Report. What is stated in the First Information Report is 3 named persons and 100 others, who could be identified by sight. It appears that after the arrest, no identification parade was conducted. Moreover, no material is produced by the Investigating Officer as to **Crl.MC.No. 1062 of 2014** 4 how and in what manner they got the name of the petitioner and others. On the basis of the allegations contained in Annexure I Final Report, as well as the materials produced along with it, none of the offences alleged against them are made out. Conducting a procession through the road will not constitute an unlawful assembly. Even in Annexure I Final Report, there is absolutely no material against the petitioner in particular. Therefore, in this circumstances, the petitioner prays for quashing the entire proceedings pending as LPC.No.222/2007 in CC.No.710/2006 on the files of the Chief Judicial Magistrate, Kasaragod. 5. The petitioner herein is the 12[th] accused in this case. This accused was absconding at the time of trial in CC.No.600/2005. The judgment in CC.No.600/2005 vide Annexure 2 was produced in order to prove that all the other accused 1 to 9, 11, 14 to 17, 24 to 27, 30, 31, 33, 34 and 36 were acquitted **Crl.MC.No. 1062 of 2014** 5 under Section 248(1) Cr.P.C. and the case against A10, 12, 13, 18, 19, 20, 21, 22, 23, 28, 29, 32 and 35 was split up and re-filed as CC.No.710/2006. Now the case against these petitioners is kept in a long pending matter. The evidence adduced in the earlier case would reveal that the prosecution has failed to give evidence against the accused. All the occurrence witnesses were turned hostile to the prosecution. They have specifically stated that there was no light at the scene of occurrence for identifying the accused. They denied that the accused were the persons who attacked them after wrongfully restraining them from proceeding to any direction on account of communal enemity. 6. Prosecution has brought out during crossexamination after declaring the witnesses hostile. In the meanwhile, it was stated that they have been admitted that the case has been settled between **Crl.MC.No. 1062 of 2014** 6 themselves and the accused and they do not want to contest the case. PW10 also turned hostile to the prosecution. Accordingly, the accused were acquitted by the Chief Judicial Magistrate-I, Kasaragod. 7. In _**Gian Singh v. State of Punjab and Another [2012 (10) SCC 303]**_ , it has held that inheritance of power is of vide plenitude with no statutory limitation, but it has to be exercised in accordance with the guidelines engrafted in such power viz. (i) to secure the ends of justice or (ii) to prevent abuse of the process of any court. 7. So, the acquittal of other accused vide Annexure A2 is not a bar for proceeding the case against the present petitioner. But, certain exception is that if the entire substratum of the case has been lost, there is no meaning in wasting the time of the court. In fact, major part of the accused were tried and acquitted by the lower court and therefore, I find that **Crl.MC.No. 1062 of 2014** 7 the rule of exception under Section 482 Cr.P.C. can be invoked in this case because there is no meaning in conducting the trial of the case and it would really tantamount the loss of the precious time of the court. Therefore, I am inclined to exercise the power under Section 482 of the Cr.P.C. and all criminal proceedings pending against the petitioner/ 12[th] accused as LPC.No.222/2007 in CC.No.710/2006 on the file of the Chief Judicial Magistrate Court, Kasaragod is hereby quashed. In the result, Crl.M.C.is allowed. Sd/- **ANNIE JOHN, JUDGE** RKM **Crl.MC.No. 1062 of 2014** 8 ## **ANNEXURE** **ANNEXURE-1 COPY OF THE FINAL REPORT IN CC 710/06 ANNEXURE-II COPY OF THE JUDGMENT IN CC 600/05 ON THE FILE OF THE CHIEF JUDICIAL IST CLASS MAGISTRATE, KASARAGOD.**