Nassar v. State of Kerala; Subair v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2023-10-25
Court Decision / Holding: Crl.M.C.8678/2023 and Crl.M.C.6098/2023 allowed; all further proceedings against the petitioners in SC No.741/2023 and SC No.193/2019 arising from Crime No.180/2004 are quashed.
Final Disposition: Criminal Misc. Cases allowed; quashing of all further proceedings against the petitioners in the respective SCs.

Parties to the Case

Appellants / Petitioners

Nassar
Subair

Respondents

State of Kerala
Sub Inspector of Police, Perumbadappu Police Station, Malappuram District

Legal Representation & Advocates

Counsels for Petitioners

• K.B. Arunkumar
• Pooja K.S.

Counsels for Respondents

• Sanal P. Raj, PP

Case Synopsis & Summary

These connected Criminal Miscellaneous Cases arise from Crime No.180/2004 of the Perumpadappu Police Station, Malappuram. The petitioners, Nassar (accused no.15 in SC No.741/2023) and Subair (accused no.9 in SC No.193/2019) challenge the continuation of proceedings, arguing that since co-accused have already been acquitted, continuing against them would amount to abuse of the process of law and would shatter the substratum of the prosecution. The common contentions are that the substratum has been destroyed by acquittal, hence there is no basis to proceed further. The State, represented by the Public Prosecutor, contends that the petitioners must face trial and that the court should not exercise its powers under Section 482 CrPC to quash. The court cites several precedents—Moosa v. Sub Inspector of Police (2006 (1) KLT 552), Abbas T.K. v. State of Kerala (2013 KHC 336), and Ashraf Kancheriyil v. State of Kerala (2011 (2) KHC 812)—to emphasize that the extraordinary power under Section 482 can be invoked when the substratum is shattered due to acquittal of co-accused. On reviewing the trial court judgment and annexures, the court finds the substratum is indeed shattered and continuation would be an abuse of process. Consequently, both Crl.M.Cs are allowed; all further proceedings in S.C.No.741/2023 and S.C.No.193/2019 are quashed by a common order of Judge P. V. Kunhikrishnan.

Provisions of Law Cited

IPC Sections 143, 147, 148, 308, 332, 435, 427 and 153A r/w 149 IPCSection 482 CrPC

Legal Doctrines & Maxims

Abuse of process of the court
substratum of the prosecution case

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submitted that since co-accused have been acquitted, continuing the prosecution against them would amount to abuse of process of court and the substratum of the case is shattered. They argued that Section 482 CrPC power should be invoked to quash the proceedings to prevent judicial waste, citing the acquittal judgments and annexures demonstrating lack of identification and evidence against the petitioners.

Contentions of Respondents

The Public Prosecutor argued that the petitioners must face trial and that this court should not exercise its power under Section 482 CrPC to quash proceedings, especially when the trial has already begun and there are contested issues of evidence. The State contended that quashing at this stage would deny the right to a fair trial and that the legality of continuing proceedings should be decided on merits rather than automatic quashing.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Moosa v. Sub Inspector of Police	2006 (1) KLT 552	Positive	Cited as authority for the court’s power under Section 482 CrPC to quash where the substratum of the prosecution is shattered by acquittal of co-accused.
Abbas T.K. v. State of Kerala	2013 KHC 336	Positive	Cited to support the principle that 482 CrPC can be invoked in cases where continuing prosecution would be abuse of process due to deteriorated substratum.
Ashraf Kancheriyil v. State of Kerala	2011 (2) KHC 812	Positive	Cited as part of the line of precedents holding that substratum shattered by acquittal justifies exercise of extraordinary jurisdiction.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 CRL.MC NO. 8678 OF 2023 ``` ``` AGAINST THE ORDER IN SC 741/2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, MANJERI ``` ## **`PETITIONER/ACCUSED NO.15:`** ``` NASSAR, AGED 47 YEARS S/O. IBRAHIM, PAPPULIYIL (H), KANJIRAMUKKU P.O , MARANCHERRY, MALAPPURAM DISTRICT, PIN - 679584 BY ADVS. K.B.ARUNKUMAR POOJA K.S. ``` ## **`RESPONDENT/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` 2THE SUB INSPECTOR OF POLICE PERUMBADAPPU POLICE STATION, MALAPPURAM DISTRICT, PIN – 679587 ADV.SANAL P RAJ, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.10.2023, ALONG WITH Crl.MC.6098/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.Nos.8678/2023 and 6098/2023 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, ``` ## **`1945`** ## **`CRL.MC NO. 6098 OF 2023`** ``` AGAINST THE ORDER IN SC 193/2019 OF ADDITIONAL SESSIONS COURT (ADHOC) III, MANJERI ``` ## **`PETITIONER/ACCUSED NO.9:`** ``` SUBAIR, AGED 47 YEARS, S/O. MUHAMMEDALI, MAKKINTE PURAKKAL (H), KADAVANADU P.O, PUTHU PONNANI, MALAPPURAM DISTRICT, PIN - 679586 ``` ``` BY ADVS. K.B.ARUNKUMAR POOJA K.S. ``` ## **`RESPONDENT/STATE:`** - `1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031` - `2 THE SUB INSPECTOR OF POLICE PERUMBADAPPU POLICE STATION, MALAPPURAM DISTRICT, PIN - 679587` ## **`OTHER PRESENT:`** ``` SRI.SANAL.P.RAJ, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.10.2023, ALONG WITH Crl.MC.8678/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.Nos.8678/2023 and 6098/2023 3 **P. V. KUNHIKRISHNAN, J. ------------------------------------------Crl.M.C.Nos.8678 and 6098 of 2023 ------------------------------------------Dated this the 25[th] day of October, 2023** ## **COMMON ORDER** These These Crl.M.Cs are connected and therefore, I am disposing of the Crl.M.Cs by a common order. 2. The petitioner in Crl.M.C.No.8678/2023 is the accused in S.C.No.741/2023 on the file of the Additional District & Sessions Court-III, Manjeri and the petitioner in Crl.M.C.No.6098/2023 is the accused in S.C.No.193/2019 on the file of the Additional Sessions Court-III, Manjeri. Both cases are arising from Crime No.180/2004 of Perumpadappu Police Station, Malappuram. The above cases are chargesheeted against the petitioners alleging offences punishable under sections 143, 147, 148, 308, 332 435, 427 and 153A r/w 149 of the Indian Penal Code. 3. It is submitted that the co-accused were already acquitted as per Annexure-2 judgment. It is submitted that in the light of Annexure-2 judgment, the continuation of the prosecution against the petitioners will be an abuse of process of court. Crl.M.C.Nos.8678/2023 and 6098/2023 4 4. Heard counsel for the petitioners and the Public Prosecutor. 5. The counsel for the petitioner submitted that the coaccused were already acquitted by the trial court and the continuation of the trial against the petitioners will be an abuse of process of court because the substratum of the prosecution case is shattered. The Public Prosecutor submitted that the petitioners have to face trial before the lower court and this court may not invoke the powers under Section 482 of the Code. 6. This Court in **Moosa v. Sub Inspector of Police (2006 (1) KLT 552), Abbas T.K. v. State of Kerala (2013 KHC 336)** and in **Ashraf Kancheriyil v. State of Kerala (2011(2) KHC 812)** considered the powers of this court to invoke Section 482 of the Code to quash the proceedings based on the acquittal of co-accused. The dictum laid down by this court in the above judgment is that, if substratum of prosecution case is shattered by the judgement of acquittal of the co-accused that could be taken into account while considering the request to quash the proceedings. After going through the judgment of the trial court, I am of the considered opinion that the continuation of the prosecution against Crl.M.C.Nos.8678/2023 and 6098/2023 5 the petitioners will be an abuse of process of court. It will be beneficial to extract the relevant portion of the judgment by which the co-accused is acquitted: 10. From the evidence of PW1 and 2 it is crystal clear they have no pervious acquaintance with the accused person and have not disclosed the name of those persons involved in the incident before the investigating officer or in Ext. P1 F1 statement. On going through Ext. P1 it could be seen that none of the names of the assailants were given by him. He had not stated that the first accused had pressed his neck with sword and that A5 beaten with wooden plank from behind him and as the same was prevented by him, he had not sustained any injuries. Besides the name of the persons who had pelted stones would not find a place in Ext.P1 statement. Even though in chief examination PW1 stated that he can identify the accused persons who was standing in the dock, he categorically admitted in cross examination that he had no previous acquaintance with the accused person and has seen them at first time after the incident as the investigating officer has not got identified them at any point of time during investigation. Thus the evidence of PW1 and 2 would clearly depict the fact that there is no proper identity with regard to the accused persons who were actually involved in this case though they arrayed as accused person in this case.' Crl.M.C.Nos.8678/2023 and 6098/2023 6 7. From the above, it is clear that the substratum of the prosecution case is shattered by the judgment delivered by the lower court, while acquitting the co-accused. Therefore, this court is of the view that the continuation of the prosecution will be an abuse of process of court and it will be a judicial waste of time. Therefore, this Crl.M.C can be allowed. Hence these Criminal Miscellaneous Cases are allowed as follows: ## **Crl.M.C.8678/2023** All further proceedings against the petitioner in S.C.No.741/2023 on the file of the Additional District & Sessions Court-III, Manjeri arising from Crime No.180/2004 of Perumpadappu Police Station, Malappuram are quashed. ## **Crl.M.C.6098/2023** All further proceedings against the petitioner in S.C.No.193/2019 on the file of the Additional Sessions Court-III, Manjeri arising from Crime No.180/2004 of Perumpadappu Police Station, Malappuram are quashed. Sd/- ## **P. V. KUNHIKRISHNAN JUDGE** Sbna/ Crl.M.C.Nos.8678/2023 and 6098/2023 7 ## **`APPENDIX OF CRL.MC 6098/2023`** ``` PETITIONER ANNEXURES Annexure 1THE TRUE COPY OF THE FINAL REPORT FILED PURSUANT CRIME NO. 180/2004 OF PERUMBADAPPU POLICE STATION Annexure 2THE TRUE COPY OF THE JUDGMENT DATED 28.02.2015 IN S.C.NO. 163/2010 ON THE FILE OF THE ADDITIONAL SESSIONS COURT- III, MANJERI ALONG WITH TYPED COPY Annexure 3THE TRUE COPY OF THE ORDER DATED 19.08.2020 IN CRL.M.C NO. 3322/2020 OF THIS HON'BLE COURT Annexure 4THE TRUE COPY OF THE COMMON ORDER DATED 05.07.2023 IN CRL.M.C NO.5315/2023 AND CRL.M.C NO.5308/2023 OF THIS HON'BLE COURT ``` Crl.M.C.Nos.8678/2023 and 6098/2023 8 ## **`APPENDIX OF CRL.MC 8678/2023`** |`PETITIONER`|`ANNEXURES`| |---|---| |`Annexure 1`|`THE TRUE COPY OF THE FINAL REPORT FILED`| ||`PURSUANT CRIME NO. 180/2004 OF`| ||`PERUMBADAPPU POLICE STATION`| |`Annexure 2`|`THE TRUE COPY OF THE JUDGMENT DATED`| ||`28.02.2015 IN S.C.NO. 163/2010 ON THE`| ||`FILE OF THE ADDITIONAL SESSIONS COURT-`| ||`III, MANJERI ALONG WITH TYPED COPY`| |`Annexure 3`|`THE TRUE COPY OF THE ORDER DATED`| ||`19.08.2020 IN CRL.M.C NO. 3322/2020 OF`| ||`THIS HON'BLE COURT`| |`Annexure 4`|`THE TRUE COPY OF THE COMMON ORDER DATED`| ||`05.07.2023 IN CRL.M.C NO.5315/2023 AND`| ||`CRL.M.C NO.5308/2023 OF THIS HON'BLE`| ||`COURT`|