Muneer ALOLLATHIL v. State of Kerala; K.V. Abdul Nasar and M.T. Yousaf v. State of Kerala

Crl.M.C.Nos.5048/22 & 5061/22 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944_ ## _CRL.MC NO.5048 OF 2022_ _CRIME NO.98/2006 OF Kannur Town, Kannur AGAINST THE ORDER/JUDGMENTCC 33/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KANNUR_ ## _PETITIONER/ACCUSED:_ _MUNEER ALOLLATHIL, AGED 44 YEARS, S/O.POKKER, ALOLLATHIL HOUSE, TRIPPANGOTTOOR, KALLIKANDI P.O, KANNUR, PIN – 670 693. BY ADVS. M.MUHAMMED SHAFI MUNAS K.P T.RASINI AYISHA AFRIN A.V.K._ ## _RESPONDENT/COMPLAINANT:_ _STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031._ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.Nos.5048/22 & 5061/22 2 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944_ ## _CRL.MC NO. 5061 OF 2022_ _CRIME NO.98/2006 OF Kannur Town, Kannur AGAINST THE ORDER/JUDGMENTCC 920/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KANNUR_ ## _PETITIONERS/ACCUSED NO.3 & 4:_ _1 K.V.ABDUL NASAR, AGED 39 YEARS, S/O.MUHAMMED HAJI, KOMATHVAYAL HOUSE, KOLAVALLUR AMSOM, NOONHAMPARAMBA, KANNUR DISTRICT, PIN – 670 693. 2 M.T.YOUSAF, AGED 39 YEARS, S/O.ABDULLA, MEETHALE THAYYULLATHIL HOUSE, KOLAVALLUR AMSOM, NOONHAMPARAMBA, KANNUR DISTRICT, PIN – 670 693. BY ADVS. M.MUHAMMED SHAFI MUNAS K.P T.RASINI AYISHA AFRIN A.V.K._ ## _RESPONDENT/COMPLAINANT:_ _STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031._ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.Nos.5048/22 & 5061/22 3 ## **O R D E R** Petitioners in these Crl.M.Cs are the accused in Crime No.98 of 2006 of Kannur Town Police Station. Crl.M.C.No.5048 of 2022 is filed by the 6[th] accused and Crl.M.C.No.5061 of 2022 is filed by the accused Nos.3 and 4. The aforesaid crime was registered against the petitioners and seven other named persons. The offences alleged against the petitioners were under Sections 143, 147, 148, 332 read with Section 149 IPC. 2. The prosecution case is that on 24.02.2006 at about 9.00 pm, about 150 persons, activists of a political party named Indian Union Muslim League, (IUML) formed themselves into an unlawful assembly armed with dangerous weapons such as stone and stick and destroyed the banners and posters of the rival political parties. When the police officers tried to intervene, they pelted stones and caused hurt to the police; thereby obstructing their duties. Annexure-A1 is the final report submitted by the police, in which ten persons including the petitioners were named. 3. Initially, the Judicial First Class Magistrate Court-I, Kannur has taken cognizance of Annexure-A1 final report as Crl.M.C.Nos.5048/22 & 5061/22 4 C.C.No.139 of 2006. In the trial conducted thereon, some of the accused persons have appeared and faced the trial. In the said trial, all the accused persons who faced trial were acquitted. The case against the other accused persons were split up and re-filed. Later, one of the accused was tried in C.C.No.197 of 2013 and it culminated in Annexure-A2 judgment, by which he was found not guilty and acquitted. Later, in the trial conducted in C.C.No.256 of 2012, which arises from the very same final report, the accused persons 4, 5, 8, 9 and 10 participated and as per Annexure-A3 judgment by which, all the said accused persons were acquitted. The case against the petitioner in Crl.M.C No 5048/2022 was split up and the same now stands refiled as C.C.No.33 of 2022. The case against the petitioners in Crl.M.C.No.5061 of 2022 who are accused Nos.3 and 4, now stands refiled as C.C.No.920 of 2018. Both the said cases are now pending before the Judicial First Class Magistrate Court-I, Kannur and these Crl.M.Cs are filed for quashing all further proceedings in these calander cases. 4. Heard Sri.Mohammed Shafi, learned counsel for the petitioners, Smt.Sreeja V. and Sri.C.S.Hrithwik, learned Public Prosecutors for the State, in the respective cases. Crl.M.C.Nos.5048/22 & 5061/22 5 5. The specific contention put forward by the learned counsel for the petitioners is that, consequent to the order of acquittal passed by the learned Magistrate in Annexures-A2 , A3 and also in the judgment passed in C.C.No.139 of 2006, the substratum of the case is lost and hence, further prosecution against the petitioners is unwarranted. Reliance was also placed on a judgment passed by a Full Bench of this Court in **Moosa v. Sub Inspector of Police [2006 (1) KLT 552].** On the other hand, the learned Public Prosecutors appearing in both the cases would stoutly oppose the aforesaid contention. It is pointed out that merely because of the reason that the other accused were acquitted, the proceedings against the petitioners cannot be quashed. 6. I have gone through the contents of Annexure-A1 final report and the judgments produced asAnnexures-A2 and A3. It is discernible from the observations made in the aforesaid judgment that, even though the prosecution examined PW1 to PW6, who were police officers, to establish the role of the accused persons, a categorical finding has been entered by the learned Magistrate on both the said occasions, to the effect that, the evidence of the said Crl.M.C.Nos.5048/22 & 5061/22 6 witnesses cannot not form the basis of conviction as against the accused. It was specifically taken note that, the incident occurred when a group of people consisting of about 150 persons made an attack and PW1 to PW6 could not identify any of the assailants. It was also specifically taken note by the learned Magistrate that, none of the accused persons was arrested from the spot, and they were taken into custody after the incident. Thus, a specific finding was entered into by the learned Magistrate in both trials, after appreciating the evidence adduced by the prosecution that, the identity of any of the accused persons could not be established by the prosecution. A careful scrutiny of the aforesaid materials would indicate that the substratum of the prosecution case is lost consequent to the aforesaid finding. In such circumstances, no purpose would be served by allowing the continuation of the prosecution against the petitioners herein. It is discernible from the records that even though the prosecution has got three opportunities in the three trials conducted in the case, they could not adduce any evidence against any of the accused persons who faced trial on those occasions. In such circumstances, I am of the view that this is a fit case in which powers of this Court under Crl.M.C.Nos.5048/22 & 5061/22 7 Section 482 Cr.P.C. can be invoked, and the proceedings in these cases can be quashed, as the further prosecution against the petitioners would be a futile exercise. In the result, this Crl.M.C. is allowed, the final report submitted in Crime No.98/2006 of Kannur Town Police Station and all further proceedings in C.C.No.33 of 2022 and C.C.No.920 of 2018, which are pending before the Judicial First Class Magistrate Court-I, Kannur against the petitioners are hereby quashed. _Sd/-_ **ZIYAD RAHMAN A.A. JUDGE** DG/17.8.22 Crl.M.C.Nos.5048/22 & 5061/22 8 ## _APPENDIX OF CRL.MC 5048/2022_ ## _PETITIONER ANNEXURES_ _Annexure A2_ _TRUE COPY OF THE JUDGMENT DATED 28-102017 IN CC. NO. 197 OF 2013_ Crl.M.C.Nos.5048/22 & 5061/22 9 ## _APPENDIX OF CRL.MC 5061/2022_ _PETITIONER ANNEXURES_ _Annexure A1 TRUE COPY OF THE CHARGE IN CRIME NO. 98 OF 2006 OF KANNUR TOWN POLICE STATION_ _Annexure A2 TRUE COPY OF THE JUDGMENT DATED 28-102017 IN CC. NO. 197 OF 2013_ _Annexure A3 TRUE COPY OF THE JUDGMENT IN CC. NO. 256 OF 2012 DATED 04-08-2018 ON THE FILE OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KANNUR_